United States District Court, E.D. Michigan, Southern Division
MEMBERSELECT INSURANCE CO. (BRUCE DUNBAR), Plaintiff,
COFINITY, INC. and AETNA HEALTH, INC., Defendants.
Stephanie Dawkins Davis Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT 
J. MICHELSON UNITED STATES DISTRICT JUDGE
2014, Corey Dunbar sustained serious injuries in a car
accident. Dunbar was covered by his father's no-fault
automobile insurance policy provided by Memberselect
Insurance Company. Memberselect paid over $55, 000 in
resulting medical expenses. Dunbar was also covered as a
dependent under his parents' self-funded, ERISA
health-insurance plans provided by their employers.
Memberselect requested reimbursement for Dunbar's medical
expenses from Cofinity Inc., which administers his
father's health insurance. Memberselect argued Cofinity
was Dunbar's primary insurer according to
Memberselect's policy on coordination of benefits.
Cofinity refused the requests, stating that the mother's
insurance plan was, in fact, Dunbar's primary health
insurance coverage. Memberselect brought suit against
Cofinity and its parent company, Aetna Health Inc. Defendants
seek summary judgment on the ground that it is not the
insurer responsible for Dunbar's medical expenses. (ECF
No. 13.) For the reasons that follow, the Court grants
material facts of this case are not in dispute. On or about
June 22, 2014, Corey Dunbar, a minor, was injured when he was
struck by a motor vehicle. (ECF No. 1, PageID.9.) Dunbar was
covered by a valid automobile insurance policy issued by
Memberselect to his father, Bruce Dunbar. (Id.) The
Memberselect policy provided for coordinated medical benefits
in the case of personal injury from a motor vehicle accident.
(Id.) Memberselect paid Dunbar's medical costs
that resulted from the car accident. (Id. at
time of the accident, Corey Dunbar was also insured under the
health insurance plans of his father and mother.
(Id. at PageID.9; ECF No.13-2, PageID.162.)
Cofinity was “created by AETNA Health, Inc. to provide
services and products to other insurance companies, third
party administrators (TPAs), and other health plans.”
(ECF No. 13, PageID.142.) Cofinity provides network services
for Bruce Dunbar's health fund, the Electrical
Workers' Insurance Fund (EWIF). (ECF No. 13, PageID.142.)
These services are administered by Professional Benefits
Services, Inc./Varipro, a third-party administrator of
self-funded health benefits plans. (Id.; ECF No.
13-3, PageID.165.) EWIF was created through collective
bargaining and is subject to the Employee Retirement Income
Security Act of 1974 (ERISA). (Id.)
health care plan of Corey Dunbar's mother, Judy Dunbar,
is a self-funded plan through UMR-Beaumont. (ECF No. 13,
PageID.146.) It too is governed by ERISA. That plan is not a
party to this suit.
November 24, 2014, Memberselect sent Cofinity a “formal
notice of . . . subrogation rights, ” which stated that
it considered Cofinity to be Dunbar's primary health
insurer and planned to seek reimbursement for Dunbar's
claims. (ECF No. 13-5, PageID.170.)
assertion that it was not Dunbar's primary insurer was
based on its General Insuring Agreement, which sets out
limits for benefits for bodily injury when the customer
elects a “Coordinated Medical Benefits”
plan. (ECF No. 1, PageID.23.) The policy states,
“it is agreed that primary medical insurance or health
care benefit plans providing coverage for motor vehicle
accident injuries are available to you or a resident relative
and are your primary source of protection.”
(Id.) The policy goes on to say Memberselect will
pay benefits for reasonable charges “except to the
extent that . . . benefits are paid or payable under your
primary protection.” (Id.)
April 28, 2014, a Memberselect claims specialist sent another
letter to Cofinity, this time formally requesting
reimbursement in the amount of $55, 535.18. (ECF No. 13-6,
PageID.173.) Memberselect identified itself as an
“excess insurer.” (Id.) On October 12,
2015, Memberselect sent a final letter to Cofinity again
requesting reimbursement. (ECF No. 13-7, PageID.175.)
on behalf of Cofinity, declined the requests for
reimbursement based on a determination by Varipro that Judy
Dunbar's health-insurance plan was primary over Bruce
Dunbar's EWIF plan. (ECF No. 13-2, PageID.162.)
determination was made based on the Coordination of Benefits
provision in the EWIF summary plan description. (ECF No.
13-8, PageID.179.) The plan contains specific guidelines for
determining primary and secondary plans for dependents. In
relevant part, the policy states “(The ‘Birthday
Rule'): If a child is covered under both their
mother's and father's plan, the plan of the parent .
. . whose birthday is earlier in the year is primary.”
(Id. at PageID.180.) Judy Dunbar was born earlier in
the year than Bruce Dunbar (March versus December). (ECF No.
13-2, PageID.163.) The EWIF plan description also asks the
customer “to ask your health care provider to submit
claims to your primary carrier first.” (ECF No. 13-8,
Defendants declined to reimburse Memberselect, Memberselect
sued Aetna and Cofinity in the Wayne County Circuit Court.
(ECF No. 1, PageID.7.) The ...