United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART, AND DENYING IN
PART, DEFENDANT'S MOTION TO DISMISS
F. Cox, United States District Court Judge.
February 17, 2017, Defendant Thomas Proben
(“Proben”) was involved in an automobile accident
in Florida, while insured by an automobile insurance policy
issued by Plaintiff Citizens Insurance Company of the Midwest
(“Citizens”). Thereafter, Proben submitted an
application for Michigan no-fault benefits for injuries he
alleges to have sustained in the accident. On November 5,
2018, Citizens filed this action against Proben, seeking a
declaration that: 1) Citizens has a statutory and contractual
right to reimbursement from Proben as to his recovery against
the third-party tort feasor in Florida; and 2) the hyperbaric
oxygen therapy treatment Proben has been receiving is not
covered under his policy because he has failed to establish
that the treatment was reasonably necessary for his care,
recovery, or rehabilitation. In lieu of an answer, Proben
filed a Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6).
The motion was heard by the Court on May 23, 2019.
reasons set forth below, the Court shall GRANT THE MOTION IN
PART AND DENY IT IN PART. The Court shall GRANT the motion to
the extent that the Court shall dismiss Count 1 without
prejudice because it is undisputed that Proben has not
obtained any recovery from the other driver. The motion is
DENIED as to Count 2 and that count shall proceed in this
November 5, 2018, Plaintiff Citizens filed this action
against Defendant Proben, based on diversity jurisdiction.
Complaint alleges that Defendant Thomas Proben is a dual
resident of Michigan and Florida and was insured under an
automobile policy of insurance issued by Citizens. It is
undisputed that on February 17, 2017, Proben was involved in
an automobile accident in Florida. The Complaint alleges the
other vehicle was owned by Powertown Line Construction and
was operated by Travis Martin Burchard on the date of the
Complaint includes two counts: 1) “Declaratory Judgment
Regarding Plaintiff Citizens' Statutory And Contractual
Right To Subrogation And Reimbursement” (Count 1); and
2) “Declaratory Judgment Regarding Defendant Thomas
Proben's Claim For First-Party No-Fault Benefits”
Count 1, Citizens seeks equitable relief in the form of a
declaration that Citizens has a statutory and contractual
right to reimbursement against and as to Defendant
Proben's “prospective recovery against the
third-party tort feasor in the state of Florida, relative to
the Accident.” (Compl. at ¶ 10) (emphasis added).
The body of Count 1 alleges as follows:
21. Plaintiff CITIZENS incorporates by reference the
allegations in paragraphs 1-20 of its Complaint as though
fully set forth herein.
22. The Michigan no-fault act MCL 500.3101, et. seq., makes
clear that Plaintiff CITIZENS possesses a statutory right to
reimbursement as to Defendant PROBEN's recovery against
23. An insurer has a right to reimbursement from an
insured's tort recovery paid in out-of-state accidents.
The insurer has a lien on the tort recovery to the extent of
the reimbursement amounts paid. MCL 500.3116(2).
24. The purpose of the statutory provision for reimbursement
is to prevent an injured party from double recovery, and its
purpose applies legal force to accidents occurring outside of
Michigan. Allstate Insurance Company v Jewell, 182
Mich.App. 611 (1990).
25. In this instance, Plaintiff CITIZENS possesses a
statutory right to reimbursement from Defendant PROBEN's
tort recovery as Plaintiff CITIZENS was the Michigan no-fault
insurer of Defendant PROBEN at the time Defendant PROBEN was
involved in a motor vehicle accident on February 17, 2017,
outside the state of Michigan, in the state of Florida.
26. Plaintiff CITIZENS also possesses a contractual right to
reimbursement from Defendant PROBEN's tort recovery. With
regard to no-fault ...