Insurance Companies Appeal No Fault Decision to State Supreme Court

Auto insurers this week officially appealed a Court of Appeals decision that ruled the 45 percent cut to entities providing health care to those catastrophically injured in traffic crashes cannot be applied retroactively and unconstitutionally infringes upon contracts.

The insurance entities involved asked the Supreme Court for immediate consideration and a stay of the decision.

In Andary v. USAA Casualty Insurance Company (COA Docket No. 356487), the court held the Legislature failed to clearly indicate that the law was to apply retroactively.

Insurance Alliance of Michigan Executive Director Erin McDonough said in a statement the appeal is intended "to ensure the savings Michigan drivers have been experiencing since the 2019 bipartisan reforms took effect can indeed continue."

Specifically, the appeal takes issue with the majority’s stance that the 2019 auto insurance laws were retroactive when the plain language of the statute puts the cost controls in place for services rendered after July 1, 2021.

"The majority not only ignored the statute’s clear language, but also completely disregarded this court’s controlling precedent that a statute does not operate retroactively if it only applies to causes that ‘accrued after the effective date of amendment," the filing says.

Further, the filing says the decision means that billions of dollars in savings that were predicted and realized in-part will be lost.

With the Court of Appeals majority also finding the law unconstitutionally infringed on contracts, attorneys for the auto insurers assert the plaintiffs cannot show a substantial impairment of a contractual relationship because there are no contracts between the plaintiffs and the defendants.

"While these policies provide coverage to plaintiffs as required … they are not the named insureds – those are the purchasers who bought the contract and paid the premiums," the filing says.

The Insurance Alliance of Michigan will file a supporting brief in the coming days, Ms. McDonough said.

"The medical fee schedule established by these bipartisan auto no-fault reforms is critical because it reins in overcharging by medical providers and brings fairness, common sense and transparency to the costs of medical care," she said. "The Court of Appeals ruling striking a key portion of the fee schedule threatens to roll back that progress."

Coalition to Protect Auto No Fault President Devin Hutchings said in a statement that it is "completely baseless" to claim the Court of Appeals decision will affect auto insurance rates.

"It’s important for the public to understand the terrible injustice that the Andary Court of Appeals’ decision so appropriately addresses. The insurance industry’s attempt to retroactively apply the medical benefit cuts contained in Michigan’s new auto no-fault insurance law to those patients who sustained severe injury years before the law went into effect, has been devastating," he said. "Thousands of Michigan families who purchased auto insurance policies that did not contain these severe benefit reductions have been subjected to a cruel rule change that has deprived them of the essential care that they had been receiving; that they were depending upon; and that they had previously paid premiums to secure. It is indeed uplifting to see our court system protect Michigan consumers and disabled people by not allowing their vested legal rights to be taken away by inappropriately applied legislation."

Canvassers Certify Abortion, Voting Rights Measures for Ballot
As reported by Gongwer, voters will officially get to decide in November whether to enshrine the right to obtain an abortion into the state Constitution and to broaden voting rights following Friday action by the Board of State Canvassers  to certify the two proposals for inclusion on the ballot.

Friday’s certifications of the two measures were by votes of 4-0 and were in response to Thursday’s order by the Michigan Supreme Court.

The votes capped a fight over whether to certify the measures ahead of the deadline Friday for finalizing the November ballot. Late last month, the panel deadlocked 2-2 along party lines on both measures prompting appeals to the Michigan Supreme Court to order certification. The high court issued orders on both measures Thursday to certify the two items for the November ballot.

"There was never any doubt in my mind that once the court spoke what we were going to do, and that’s follow what they have requested of us," Board Chair Tony Daunt (R-DeWitt) said prior to the votes.

Mr. Daunt and Board Member Richard Houskamp (R-Grand Rapids) voted against certification last month, triggering the appeals to the Supreme Court and subsequent orders.

The voting rights and abortion rights proposals are Proposal 22-2 and Proposal 22-3, respectively.

At issue with the abortion rights measure was a lack of spacing between multiple words in the proposed amendment, which caused a split along party lines as to whether this constituted enough of a flaw or typo to keep the measure off the ballot.

For the voting rights measure, the argument in opposition was that the petition failed to include all the constitutional provisions that would be repealed by the proposed amendments.

Mr. Daunt told reporters that although he voted to certify he still, to an extent, disagreed with the high court’s interpretation in its order. The ruling provided clarity, though, he said, adding that if there was spacing problem in the future, like there was in the abortion language measure, the panel shouldn’t be held up by it.

"I think that clarity is appropriate, it’s nice to have that clarity," Mr. Daunt said.

Mr. Daunt said there will be differences of interpretation on matters before the canvassers, but when the court speaks, it’s the duty of the panel to comply.

Regarding the deadlock, he said he had no doubt "if the shoe was on the other foot" with a ballot measure the two Democratic members would have done what he and Mr. Houskamp did Friday and voted to certify.

Ultimately, Mr. Daunt said the system may experience its share of stresses, but it works.

Prior to the votes, Mr. Houskamp explained his votes against certification last week as being due to legitimate questions over the process.

"It really, truly wasn’t partisan," Mr. Houskamp said. "I have to tell you that the process did work, but we would have raised that same process no matter what was in front of us."

Vice-Chair Mary Ellen Gurewitz (D-Detroit) told reporters the certification was "a victory for the people of Michigan who signed in such record numbers" for both petitions.

She praised the Supreme Court for its decision and clarification on the canvassers’ duties.

"It is not for the board to determine whether or not the content of a petition is confusing, or in any other way insufficient," Ms. Gurewitz said. "The Supreme Court did a wonderful job of clarifying the limited nature of the board’s power and I hope that the board will understand that in the future."

Steve Liedel, an attorney representing Reproductive Freedom for All, told the members prior to the vote to certify and let the people decide on the measure. He said the more than 753,000 people who signed the petitions that were submitted did so knowing what they wanted.

"They read it, they understood it, they signed their name to it," Mr. Liedel said. "They made no mistakes or errors, and they don’t need government officials telling them otherwise."

Several other supporters who helped circulate the Reproductive Freedom for All petitions were on hand at Friday’s meeting and spoke in support of certification, making similar pleas as that of Mr. Liedel.

Also before the panel Friday was the voting rights measure from Promote the Vote 2022, which would enshrine in the Constitution statutory voter identification language. It would also create an early voting period, require state-funded prepaid postage for returned absentee ballot applications and voted absentee ballots, mandate state funding for absentee ballot drop boxes and other provisions. Existing law on what information boards of canvassers can use when deciding whether to certify elections would also be enshrined in the Constitution.

Defend Your Vote, the group opposing the proposal, argued that the petition failed to include all the constitutional provisions that would be abrogated by the proposed amendments. This, they said, includes two sections of the petition that would repeal provisions in the state Constitution, contending these sections and the proposed changes should have been listed in the petition.

Attorney Chris Trebilcock, who represents Promote the Vote, told the panel prior to the votes the process was messy, but it worked and allowed things to reach the point of certification. He said the two voting against certification at the previous hearing asked questions and those questions have been answered by the high court.

"I think your duties and your fulfillment of your oath is clear," Mr. Trebilcock said, urging a vote to certify.

Khalilah Spencer, board president for Promote the Vote 2022, said the group was pleased with Friday’s vote in a statement following the meeting.

"We applaud the board for finally placing Proposal 2 on the ballot because it will help ensure every voice is heard and every vote is counted in every election no matter where we live, what we look like, or what political candidate we support," Ms. Spencer said. "Now that Proposal 2 is on the ballot, we will be encouraging Michigan voters to vote yes on 2."

Michigan’s Connection to English Royalty:  Lamprey Pie
An odd tradition – sea lamprey pie – linking the Great Lakes to Great Britain’s Royals is expected to continue with the crowning of King Charles III.

Lampreys are considered an undesirable invasive species in the Great Lakes. They devastate native fish by latching onto them with a sucker-like mouth filled with sharp teeth.

Great Lakes states, Canadian and U.S. governments spend millions of dollars to control them.

But baking them into a pie is a longtime tradition in the United Kingdom.

Queen Elizabeth II, who died Thursday after reigning 70 years, was served the eel-like sea lamprey in 2002 to celebrate her Golden Jubilee, or 50th anniversary of being on the throne.

The Great Lakes Fishery Commission made another shipment of the fish taken from the Great Lakes 10 years later in 2012 for her 60th anniversary, and once again in 2016 for her 90th birthday.

“We capture them and send them over to Gloucester, England, so that they can continue their long tradition,” said Marc Gaden, the deputy executive secretary of the fishery commission, a binational organization founded in 1954 to fight the parasite. 

“With the coronation of King Charles III coming up, I can only assume I’m going to be sending a few more over there.” 

Sea lamprey are protected in the U.K. because streams there are heavily dammed, and they cannot spawn as much as they do in the Great Lakes, Gaden said. 

The lamprey pie is a tradition in the U.K. going back hundreds of years. Serving it was discontinued except for coronations in 1836, due to its high cost, according to “What’s Cooking America,” a website that documents food history.

The lamprey is baked while coated in syrup, along with some wine and spices. It is then spooned out and served on sliced white bread.

In 1996, Wisconsin Sea Grant organized a sea lamprey taste test in hopes of spurring a commercial market for the fish instead of simply landfilling those that they trapped.

Taste ratings were high, but the plan fell apart when contaminant tests showed that the Great Lakes lamprey contained mercury levels that were too high to meet European Union standards. 

How does it taste? 

“Surprisingly good,” Bob Bennet, the owner and chef of a Duluth restaurant that hosted the event said at the time. “Try selling it without telling people what they are eating. It would be better.”

But don’t ask Gaden.

“I can’t say I’ve tried the lamprey pie,” he said.

(Contributed by Capital News Service correspondent Douglas Tamru).


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