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Perkovic v. Zurich American Ins. Co.

Court of Appeals of Michigan

September 10, 2015

DRAGEN PERKOVIC, Plaintiff-Appellant,
v.
ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellee

Wayne Circuit Court. LC No. 09-019740-NF.

For DRAGEN PERKOVIC, Plaintiff-Appellant: MARK GRANZOTTO, BERKLEY, MI.

For ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellee: JAMES K. O'BRIEN, TROY, MI.

Before: TALBOT, P.J., and WILDER and FORT HOOD, JJ.

OPINION

[312 Mich.App. 245] Kurtis T. Wilder, J.

Plaintiff, Dragen Perkovic, appeals as of right an order granting summary disposition to defendant, Zurich American Insurance Company. We affirm.

[312 Mich.App. 246] This case arises out of a motor vehicle accident that occurred on February 28, 2009. Plaintiff was the driver and owner of a semi-truck, which he leased to E.L. Hollingsworth and Company (Hollingsworth) under an independent contractor's operating agreement. Hollingsworth had an automobile insurance policy with defendant that covered Hollingsworth's equipment and the vehicles it leased. Plaintiff also had a personal automobile insurance policy through Citizens Insurance Company (Citizens) and a bobtail insurance policy through Hudson Insurance Company (Hudson) for occasions on which the vehicle was not being operated for Hollingsworth.

On February 28, 2009, while plaintiff was driving down an interstate, the car in front of plaintiff began to spin, and plaintiff swerved to avoid the car. As a result, plaintiff drove his truck into a wall. Plaintiff subsequently received emergency medical treatment at The Nebraska Medical Center.

On April 30, 2009, James White, a custodian of records for The Nebraska Medical Center, mailed to defendant plaintiff's medical records and a medical bill for services performed on plaintiff. According to White's affidavit, White sent the medical bill and plaintiff's medical records on behalf of plaintiff in order to obtain payment for plaintiff's accident-related injuries. The medical bill listed " Dragen Perkovic" under the " Insured's Name" and included plaintiff's address of 3472 South Blvd., Bloomfield Hills, MI 48304. Plaintiff's medical records also included plaintiff's name as the insured, his address, and a policy number. Plaintiff's medical records stated:

46 yo male semi truck driver c/o R upper back pain after MVC. States that he was driving down interstate when [312 Mich.App. 247] car in front of him began to spin[,] he swerved to avoid the car since in semi and ran into a wall hitting front[]driver side.

Plaintiff's medical records further stated that plaintiff may have suffered a " back sprain, cervical sprain or fracture, chest wall contusion, contusion, head injury, liver injury, myocardial contusion, pneumothorax, splenic injury, sprained or fractured extremity."

On May 19, 2009, defendant sent notice to The Nebraska Medical Center indicating that it was denying payment for the services rendered to plaintiff. Defendant stamped the statement, " No injury report on file for this person," on the medical bill for the services performed on plaintiff.

As stated in the trial court's opinion granting summary disposition:

On August 11, 2009, Plaintiff filed his Complaint against Citizens. On February 12, 2010, Plaintiff amended his Complaint to add Hudson, Business Insurers of America, Inc.[,] BIA Associates, Inc.[,] and Forsyth/BIA, Inc.[,] as defendants. On March 23, 2010, defendants Business Insurers of America, Inc., BIA Associates, Inc.[,] and Forsyth/BIA, Inc[.,] were voluntarily dismissed from this lawsuit. It was not until March 25, 2010, more than a year after the accident, that Plaintiff filed his Second Amended Complaint adding Zurich as a defendant. The Michigan Department of State Assigned Claim Facility was also added as a defendant on December 9, 2010, but was dismissed from the lawsuit on May 18, 2011.
On September 9, 2010, in its Opinion and Order, the Honorable Michael F. Sapala granted Zurich's motion for summary disposition, dismissed Hudson and named Citizens the highest priority insurer. Subsequently, Citizens filed a motion for reconsideration, which was granted on November 8, 2010. In its Opinion and Order, Judge Sapala dismissed Citizens and named Hudson the highest priority insurer. Thereafter, Hudson filed a motion for reconsideration. [312 Mich.App. 248] The motion was denied in a February 11, 2011 Opinion and Order which confirmed Hudson had priority over Zurich and dismissed all claims against Citizens.
On December 20, 2012, the Michigan Court of Appeals reversed this Court's decision, ruling that Zurich is the highest priority insurer, and dismissed all claims against Hudson.[1] The court held that MCL 500.3114(3) applied in this case and upheld Hudson's exclusion of coverage provision reasoning that, because Zurich provided coverage, the Hudson and Zurich policies together provided Plaintiff ...

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