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09/29/93 LOUISE ANN TOUSIGNANT v. ALLSTATE

September 29, 1993

LOUISE ANN TOUSIGNANT, PLAINTIFF-APPELLEE,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT.



Chief Justice Michael F. Cavanagh, Associate Justices Charles L. Levin, James H. Brickley, Patricia J. Boyle, Dorothy Comstock Riley, Robert P. Griffin, Conrad L. Mallett, Jr.

The opinion of the court was delivered by: Levin

BEFORE THE ENTIRE BENCH

LEVIN, J.

The question presented concerns the liability of a no-fault automobile insurer when the insured purchases a policy of no-fault automobile insurance coordinated with other health coverage. We hold that a no-fault insurer is not subject to liability for medical expense that the insured's *fn1 health care insurer is required, under its contract, to pay for or provide. *fn2

I

Louise Ann Tousignant was injured in an automobile accident in July, 1987. Tousignant's automobile was insured under a no-fault automobile policy with Allstate Insurance Company.

Tousignant's employer provided her with health care insurance through Health Alliance Plan (HAP), a health maintenance organization. Tousignant chose to coordinate her no-fault insurance with "other health . . . coverage," provided by her employer through HAP, pursuant to § 3109a of the no-fault automobile liability act, which provides for such coordination "at appropriately reduced [automobile insurance] premium rates." *fn3

The coordination provision in the Allstate no-fault policy provides that when the insured coordinates health care coverages, Allstate shall not be subject to liability for medical expense, under § 3107 of the no-fault act, *fn4 to the extent such expense is "paid, payable or required to be provided" under any collectible accident, disability, or hospitalization insurance or medical or surgical reimbursement plan. *fn5

Tousignant was examined and treated after the accident for back and neck pain at the emergency room of the Henry Ford Medical Clinic in West Bloomfield, an HAP facility. She was released with instructions to return if her back or neck pain continued.

Tousignant apparently continued to suffer pain. Instead of returning to the Henry Ford Medical Clinic or another HAP facility or physician, Tousignant sought treatment from a physician other than an HAP physician. This physician performed tests and placed Tousignant on a course of heat treatments for her neck and back one to three times per week for a year.

Tousignant also began periodic treatment with a dentist for possible temporomandibular joint syndrome. The dentist was not an HAP affiliated doctor. It had been suggested that she consult the dentist for clicking in her jaw.

Tousignant telephoned Allstate shortly after her accident to inquire whether it would pay for non-HAP medical care. She acknowledges, and this was confirmed in a letter from Allstate, that Allstate told her that it would only pay for medical care by a non-HAP physician pursuant to a referral from an HAP physician.

Tousignant has not contended that necessary medical care was unavailable or of inadequate quality at HAP facilities.

Allstate, relying on the coordination of benefits provision of the no-fault policy, refused to pay bills submitted by the non-HAP physician and dentist. It contends that any necessary services were "required to be provided" by HAP.

The circuit court granted summary Disposition for Allstate. *fn6 The Court of Appeals reversed stating:

"Nothing in the language of the coordination of benefits clause contained in the no-fault contract requires plaintiff to seek all possible treatment through her HMO [health maintenance organization] before she may receive no-fault insurance benefits for medical care not covered by her health coverage." 193 Mich App 415, 418; 484 NW2d 404 (1992). *fn7

II

Tousignant contends that coordination does not require that a no-fault insured seek all medical care from the health insurer. When no-fault and health care coverages are coordinated, and, as here, the health insurer (HMO) is a health care provider, and the no-fault insured seeks and obtains medical care from or through the health insurer, the legislative purpose underlying § 3109a of avoiding duplicative payment is achieved because, in such a case, the medical care having been provided by the health insurer, the no-fault insurer is relieved of liability for payment of the expense of such care. *fn8

Tousignant argues, however, that when the no-fault insured does not seek medical care from the health insurer, but rather obtains medical care from other physicians of her choice, the health insurer is not then obliged to provide or pay for such medical care, and thus neither such medical care nor the expense of providing it is "required to be provided " by the health insurer. Allstate, Tousignant contends, therefore must pay the bills of the non-HAP physician and dentist, and there is no duplication because only Allstate would pay.

Tousignant stresses that neither § 3109a nor the no-fault policy states that a no-fault insured must seek medical care from a health insurer who is a health care provider, and that neither § 3109a nor the Allstate no-fault policy speak of a health insurer as the "primary insurer."

We conclude, however, that the legislative policy that led to the enactment of ยง 3109a requires an insured who chooses to coordinate no-fault and health coverages to obtain payment and services from the health insurer to the ...


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