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No. 133416
| Community Resource Consultants, Inc., |
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Harold A. Perakis |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Ingham - Collette, W.) |
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| Progressive Michigan Insurance Company, |
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Caryn Anne Gordon |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Supplemental Brief>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Coalition Protecting Automobile No-Fault ("CPAN")'s Amicus Curiae Brief>>
Background
Richard Fero was seriously injured in a 1997 automobile accident. He was insured under a no-fault policy issued by Progressive Michigan Insurance Company. Over the years, Community Resource Consultants, Inc. provided rehabilitation and case management services to Fero. Progressive generally paid for these services but, in 2004, Community Resource alleged that a substantial unpaid balance had accrued. On June 18, 2004, Community Resource sued Progressive, seeking to recover $58,808.96 for services rendered to Fero. Based on the customer balance detail provided by Community Resource, Progressive argued that $19,684.64 of the $58,808.96 that Community Resource sought was for services provided more than one year before Community Resource filed its lawsuit on June 18, 2003. Progressive argued that Community Resource was barred from recovering this amount by the no-fault act’s one-year back rule, which provides that a claimant “may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” Community Resource contended that the parties’ established billing arrangement created a dispute of fact, because Progressive customarily waited until it had received multiple invoices before making a payment. Although Progressive would identify which invoices each check was intended to cover, because some invoices were only partially paid, Community Resource would apply the incoming payment to the oldest outstanding invoices. Community Resource argued that this was standard practice among parties with an “open account” billing arrangement. Because of this billing arrangement, the one-year back rule did not apply, Community Resource argued. The trial court agreed and the Court of Appeals affirmed in a divided, unpublished opinion. The Court of Appeals majority held, as did the trial court, that there was a disputed issue of fact as to the effect of the parties’ billing practices on the one-year back rule. The dissenting judge contended that the focus should be on the date upon which the treatment or service was provided. Because the services at issue were provided before June 18, 2003, the dissenting judge concluded that they were barred by the one-year back rule of MCL 500.3145(1). Progressive appeals.
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