On June 7, 2022, the Michigan Court of Appeals heard arguments in Ellen M. Andary, Philip Krueger, & Eisenhower Center, v. USAA Casualty Insurance Company and Citizens Insurance Company of America; according to the Coalition to Protect Auto No-Fault (CPAN), the lawsuit contends that two provisions of the 2019 auto insurance law—a.) the 45% cut in catastrophic care and b.) the significant limitations placed on the right of survivors to receive reimbursement for in-home attendant care services provided by family members—violate Michigan’s Constitution.
CPAN Update
In the Andary litigation, the Plaintiffs were supported by Coalition to Protect Auto No-fault (CPAN). Their lawyers strongly urged that it would be fundamentally illegal to enforce the medical benefit cuts recently enacted by this new legislation against catastrophically injured auto accident victim0 who purchased auto no-fault insurance policies and sustained their injury many years before the legislation was passed.
The legal team representing Ms. Andary (George Sinas and Mark Granzotto) argued that the no-fault insurance policies purchased by the Plaintiffs in this litigation specifically required the payment of “all reasonable charges” for reasonably necessary medical care. Given that contractual right, insurers had the duty to pay those benefits to the Plaintiffs without regard to the recently adopted “government fee schedules” and the limitations on reimbursable family provided attendant care. They urged the Court of Appeals to find that any such effort to apply these new benefit cuts to Plaintiffs injured prior to the effective date of the law would constitute an illegal deprivation of the legally vested contractual rights of these Plaintiffs.
In that regard,, George Sinas, lead counsel for the Plaintiffs, stated, “The central point in this entire litigation is the fact that, long ago, the Plaintiffs in this case purchased auto no-fault insurance policies that would not permit the enforcement of the benefit cuts contained in this new legislation. In other words, these Plaintiffs purchased the contractual right to the payment of benefits without regard to these limitations and the insurance companies involved charged these Plaintiffs a premium to provide those benefits. Now the insurers contend they can deny payment of the benefits that they sold to these patients, while retaining the premiums they collected to pay them. That would be a classic example of governmental interference with private contract rights as well as a governmentally sanctioned windfall for auto insurers who would no longer have to pay benefits that they collected money to provide.”
The Court’s decision in this case will affect thousands of Michigan citizens who purchased no-fault insurance policies and were injured many years before these new laws were passed. There are approximately 18,000 of these patients who were catastrophically injured and whose medical expenses are now being reimbursed by the Michigan Catastrophic Claims Association (MCCA).
“So, we’re not dealing with litigation that is only going to affect a few people. On the contrary, the number of victims who will be severely harmed if such benefit cuts are allowed by the Court of Appeals, boggles the mind,” said Sinas. “Recently we’ve seen media stories about the famous Detroit Red Wing hockey player, Vladimir Konstantinov, who was catastrophically brain injured many years ago in a motor vehicle accident and will now lose essential in-home attendant care and thus may be forced to live in an institution. The sad thing is there are thousands of Vladimir Konstantinovs whose tragic stories have not been publicized, but who are similarly experiencing the prospect of such frightening outcomes,” said Sinas.
The MPVA Perspective
Our members were promised lifetime Personal Injury Protection (PIP) benefits at the time of our automobile accident and have not been given the whole truth about no-fault reform. Yes, technically one can say that people still have lifetime PIP benefits, but the long-term care benefits will be paid at 55 percent going forward, which removes true access to long-term care. These benefits do not have value if there is not a care provider to accept the extremely low payment.
MPVA members paid their premiums on time, in some cases for decades, before an auto accident disrupted their lives. At the time, their no-fault coverage guaranteed that all necessary medical care in case of a catastrophic auto accident would be provided for as long as it was needed.
Michael Harris, MPVA President
These policies required reimbursement for all reasonably necessary attendant care services regardless of the identity of the attendant care provider and all reasonably necessary products, services, and accommodations regardless of any government-imposed fee schedule. These were the benefits in place of the date of their accident.
Now, our state government is retroactively altering those rights in violation of the pre-existing contractual obligations between the injured individual and their insurance company. MPVA believes that the retroactive application of these two main provisions to individuals injured in an automobile crash prior to the date the new law went into effect is unconstitutional.
According to CPAN, It is not clear when the Court of Appeals will issue its decision. It could be weeks or months, court observers predict. Regardless of the decision of the Court of Appeals in Andary, it is highly likely that the case will be appealed to the Michigan Supreme Court for a final determination.
MPVA Blog 