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Clark v. Progressive Insurance Co.

Court of Appeals of Michigan

March 5, 2015

CAROL SUE CLARK, Plaintiff-Appellee,

Washtenaw Circuit LC No. 12-000385-NI

Before: Saad, P.J., and Owens and K. F. Kelly, JJ.



On November 5, 2013, plaintiff, who suffered injuries in two car accidents, settled her personal injury protection ("PIP") claim in an agreement with defendant Progressive Insurance Company ("Progressive"), that provided that all PIP benefits incurred as of that date would be settled in exchange for a $78, 000 payment from Progressive. Days after she made the agreement, plaintiff attempted to void this universal, binding settlement by asserting that she and her lawyer were unaware of a $28, 000 benefit she incurred several months before the settlement, and that the charge had only recently come to her attention.[1] She claimed that because Progressive was aware of the billing (and she was not), the settlement should not include the $28, 000 charge, as she would not have settled for $78, 000 had she know about the $28, 000 charge at the time of settlement. She did not tell the trial court (and does not tell our Court on appeal) how Progressive or Progressive's counsel could have divined what she and her lawyer may or may not have considered, or known, or risked, in making the decision to settle for $78, 000. Yet the trial court agreed with plaintiff's argument, and held that the settlement did not include the $28, 000 bill.

When plaintiff settled the case, she or her lawyer could have demanded that the settlement only include a specific list of PIP benefits incurred to date, rather than all PIP benefits incurred to date.[2] But neither she nor her lawyer made such a demand. Alternatively, because her claims involved continuing medical treatment and numerous related charges over long periods of time, plaintiff and her lawyer could have conditioned any settlement by specifying that if any charges incurred before the date of settlement came to light after the settlement, the settlement could be reopened to address such a charge. But again, neither plaintiff nor her lawyer took this precaution. There are many other ways plaintiff or her lawyer could have settled her claim besides a universal settlement that wiped the slate clean of any claims incurred prior to the date of settlement. But they did not do so. Instead, they settled for a complete waiver of claims for $78, 000, and Progressive paid this sum to buy its peace and achieve finality in this litigation.

Having failed to protect her interests, [3] and plaintiff's trial lawyer having failed to protect his client's interests, [4] plaintiff now claims that the settlement should be set aside because Progressive (or its counsel) should have asked plaintiff, before the settlement, if she had considered the $28, 000 charge-even though it is conjecture to allege that Progressive (or its counsel) knew that plaintiff lacked knowledge of this charge.

If this claim sounds strange, that's because it is. Why? Because were we to agree with plaintiff's theory-which she does not articulate legally-then this case would stand for the unprecedented proposition that an adversary in litigation has a duty to ensure that his opponent considered all relevant factors before making a settlement decision. And, were we to credit the theory that opposing counsel had a duty to notify plaintiff of the $28, 000 charge, then this case would stand for the novel theory that opposing counsel has a duty to do what is in fact, law, and professional obligation, the duty of plaintiff's lawyer. It is the obligation of plaintiff's attorney to ensure his client knows that a settlement, like the one at issue here, encompasses all claims. If plaintiff or her lawyer had any doubt about such an agreement, it was the responsibility of plaintiff's lawyer to demand a different kind of settlement.

Yet, plaintiff instead says the lawyer for her adversary (or her adversary itself) should advise her of relevant information before settlement. To shift what is rightly the obligation of plaintiff's attorney to opposing counsel or the defendant would fly in the face of the adversarial nature of litigation, and compromise a lawyer's obligation to zealously represent his client-and his client alone-without any conflicts.

For these reasons, which we explain below, we reject plaintiff's novel theories to avoid the agreement she freely entered into with the advice of counsel. The trial court's unwarranted rewriting of the parties' settlement agreement is reversed, and we remand for entry of an order to enforce the settlement agreement.


In 2011, plaintiff was involved in two car accidents in as many months. She suffered injuries in both accidents, and damaged her left shoulder and back. Though Progressive, plaintiff's insurer, initially paid for her medical treatment, it terminated her benefits in October 2011. Plaintiff filed suit against Progressive in the Washtenaw Circuit Court, [5] and alleged that Progressive improperly denied her payments of PIP benefits and underinsured/uninsured motorist benefits in violation of Michigan's No Fault Act, MCL 500.3101 et seq. In May 2013, during the course of litigation, plaintiff received shoulder surgery at Synergy Spine & Orthopedic Surgery Center ("Synergy"). She says she received a billing statement from the doctor who performed the surgery, but alleges that she did not receive a billing statement from Synergy for use of the facility.

Prior to trial, plaintiff and Progressive reached a settlement. In an email exchange in early November 2013, the parties agreed to a $78, 000 "global settlement" for plaintiff's PIP and underinsured/uninsured motorist claims. Progressive's adjuster explicitly stated, and plaintiff's trial attorney unequivocally agreed, that the PIP settlement "would be for all benefits to date." Plaintiff's trial attorney informed the trial court of the settlement on November 5, 2013.

Three days later, plaintiff asserts that her trial attorney received a $28, 942 facility bill from Synergy for her May 2013 shoulder surgery. Plaintiff's lawyer contacted Progressive, claimed neither he nor plaintiff had knowledge of Synergy's charges, and said he would not have settled the suit for $78, 000 had he or plaintiff known about this charge. He also alleged that Progressive was aware of the $28, 942 statement, and had negotiated over this bill with Synergy at some point from May to November 2013. Plaintiff's attorney asked Progressive to confirm ...

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