Tousignant v. Allstate Ins. Co., 444 Mich.

301 (1993)
506 N.W.2d 844

9 Cases that cite this headnote

KeyCite Yellow Flag - Negative Treatment
Declined to Extend by Batts v. Titan Insurance Company, Mich.App.,
December 12, 2017
[2] Insurance Primary and Excess Insurance
Insured who coordinates no-fault and health
444 Mich. 301 coverages is required to obtain payment and
Supreme Court of Michigan. services from health insurer to extent of health

Louise Ann TOUSIGNANT, Plaintiff–Appellee, coverage. M.C.L.A. §§ 500.3107, 500.3109a.

v. 5 Cases that cite this headnote
ALLSTATE INSURANCE
COMPANY, Defendant–Appellant.
[3] Insurance Primary and Excess Insurance
Docket No. 93773. Coordination of no-fault and health coverages is
|
optional. M.C.L.A. § 500.3109a.
Calendar No. 12, April Term.
| 1 Cases that cite this headnote
Argued April 2, 1993.
|
Decided Sept. 29, 1993. [4] Insurance Other Insurance
No-fault insured who desires duplicative medical
Synopsis coverage from no-fault and health insurers
Insured brought action against no-fault insurer to obtain can, by not coordinating and thus paying
payment for medical expenses. The Circuit Court, Oakland higher premiums, contract for coverage by no-
County, Robert L. Templin, J., granted summary disposition
fault insurer and health insurer. M.C.L.A. §
in favor of insurer. Insured appealed. The Court of Appeals,
500.3109a.
193 Mich.App. 415, 484 N.W.2d 404, reversed. Appeal
was granted. The Supreme Court, Levin, J., held that insured 3 Cases that cite this headnote
who chooses to coordinate no-fault and health coverages is
required to obtain payment and services from health insurer [5] Insurance Primary and Excess Insurance
to extent of health coverage.
Insureds who coordinate no-fault and health
insurance and thus pay reduced premium
Reversed.
are deemed to have made health insurer
primary insurer respecting injuries in automobile
Boyle, J., concurred in result, dissented in part, and filed
opinion joined by Riley and Brickley, JJ. accident. M.C.L.A. §§ 500.3107, 500.3109a.

Procedural Posture(s): On Appeal; Motion for Summary 2 Cases that cite this headnote
Judgment.
[6] Insurance Primary and Excess Insurance
West Headnotes (8) Whether controversies regarding coordination of
benefits is between no-fault and health insurer
or between no-fault insurer and no-fault insured,
[1] Insurance Other Insurance health insurer is primary insurer to extent that
No-fault insurer is not subject to liability for health insurer has agreed to pay for and provide
medical expense that insured's health care insurer necessary medical care. M.C.L.A. §§ 500.3107,
is required, under its contract, to pay for or
500.3109a.
provide. M.C.L.A. §§ 500.3107, 500.3109a.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

19 Cases that cite this headnote

OPINION
[7] Insurance Primary and Excess Insurance
LEVIN, Justice.
Where no-fault insured's employer chooses to
provide health insurance or insured chooses to [1] The question presented concerns the liability of a no-
obtain health insurance from health maintenance fault automobile insurer when the insured purchases a policy
organization (HMO) and insured chooses to of no-fault **846 automobile insurance coordinated with
coordinate no-fault and health coverages, insured other health coverage. We hold that a no-fault insurer is not
has, in effect, agreed to relinquish choice of
subject to liability for medical expense that the insured's 1
physician and facility. M.C.L.A. § 500.3109a. health care insurer is required, under its contract, to pay for
or provide. 2
5 Cases that cite this headnote

[8] Insurance Primary and Excess Insurance

I
Medical services that health insurer acting as
health care provider or health maintenance Louise Ann Tousignant was injured in an automobile accident
organization (HMO) is obliged to provide are in July, 1987. Tousignant's automobile *304 was insured
“benefits payable” within meaning of statute under a no-fault automobile policy with Allstate Insurance
on coordination of no-fault benefits and health Company.
coverage and are “required to be provided”
within meaning of no-fault policy relieving Tousignant's employer provided her with health care
insurer of liability to extent that benefits are insurance through Health Alliance Plan (HAP), a health
required to be provided under medical plan. maintenance organization. Tousignant chose to coordinate her
M.C.L.A. § 500.3109a. no-fault insurance with “other health ... coverage,” provided
by her employer through HAP, pursuant to § 3109a of
22 Cases that cite this headnote the no-fault automobile liability act, which provides for
such coordination “at appropriately reduced [automobile
insurance] premium rates.” 3

Attorneys and Law Firms The coordination provision in the Allstate no-fault policy
provides that when the insured coordinates health care
**845 *302 Louis Gordon, P.C., Southfield by David W. coverages, Allstate shall not be subject to liability for medical
Martin for plaintiff-appellee.
expense, under § 3107 of the no-fault act, 4 to the extent
Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., such expense is “paid, payable or required to be provided”
Detroit by James L. Borin and Daniel S. Saylor, for defendant- under any collectible accident, disability, or hospitalization
appellant. insurance or medical or surgical reimbursement plan. 5

Nancy L. Bosh, Detroit, for Auto Club Ins. Ass'n. *305 Tousignant was examined and treated after the
accident for back and neck pain at the emergency room of
*303 John A. Lydick, Detroit, for amicus curiae Michigan
the Henry Ford Medical Clinic in West Bloomfield, an HAP
Ass'n of Ins. Companies.
facility. She was released with instructions to return if her
Thomas H. Hay, Hay & O'Rourke, P.C., Lansing, Monica back or neck pain continued.
Farris Linkner, Berkley, and Charles P. Burbach, Southfield,
for amicus curiae Michigan Trial Lawyers Ass'n. Tousignant apparently continued to suffer pain. Instead of
returning to the Henry Ford Medical Clinic or another HAP
facility or physician, Tousignant sought treatment from a

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

physician other than an HAP physician. This physician been provided by the health insurer, the no-fault insurer is
performed tests and placed Tousignant on a course of heat relieved of liability for payment of the expense of such care. 8
treatments for her neck and back one to three times per week
for a year. Tousignant argues, however, that when the no-fault insured
does not seek medical care from the *307 health insurer,
Tousignant also began periodic treatment with a dentist for but rather obtains medical care from other physicians of her
possible temporomandibular joint syndrome. The dentist was choice, the health insurer is not then obliged to provide or pay
not an HAP affiliated doctor. It had been suggested that she for such medical care, and thus neither such medical care nor
consult the dentist for clicking in her jaw. the expense of providing it is “required to be provided ” by the
health insurer. Allstate, Tousignant contends, therefore must
Tousignant telephoned Allstate shortly after her accident to pay the bills of the non-HAP physician and dentist, and there
inquire whether it would pay for non-HAP medical care. is no duplication because only Allstate would pay.
She acknowledges, and this was confirmed in a letter from
Allstate, that Allstate told her **847 that it would only Tousignant stresses that neither § 3109a nor the no-fault
pay for medical care by a non-HAP physician pursuant to a policy states that a no-fault insured must seek medical care
referral from an HAP physician. from a health insurer who is a health care provider, and that
neither § 3109a nor the Allstate no-fault policy speak of a
Tousignant has not contended that necessary medical care was health insurer as the “primary insurer.”
unavailable or of inadequate quality at HAP facilities.
We conclude, however, that the legislative policy that led to
Allstate, relying on the coordination of benefits provision of the enactment of § 3109a requires an insured who chooses to
the no-fault policy, refused to pay bills submitted by the non- coordinate no-fault and health coverages to obtain payment
HAP physician and dentist. It contends that any necessary and services from the health insurer to the extent of the health
services were “required to be provided” by HAP. coverage available from the health insurer.

The circuit court granted summary disposition for Allstate. 6

The Court of Appeals reversed stating:
III

[3] [4] Coordination of no-fault and health coverages is

*306 “Nothing in the language of the coordination of
optional. “[I]t allows individuals to tailor their insurance
benefits clause contained in the no-fault contract requires
plaintiff to seek all possible treatment through her HMO coverage to their own special needs.” 9 A no-fault insured
[health maintenance organization] before she may receive who desires duplicative medical coverage from no-fault and
no-fault insurance benefits for medical care not covered health insurers can, by not coordinating and thus paying
higher premiums, contract for coverage both by a no-fault
by her health coverage.” 193 Mich.App. 415, 418, 484 insurer and a health insurer.
7
N.W.2d 404 (1992).
**848 [5] Insureds who coordinate, and thus pay a
reduced premium, however, are deemed to have made the
II
health insurer the “primary” insurer respecting injuries in
[2] Tousignant contends that coordination does not require an automobile accident. In Federal *308 Kemper Ins.
that a no-fault insured seek all medical care from the Co. Inc. v. Health Ins. Administration, Inc., 424 Mich. 537,
health insurer. When no-fault and health care coverages are 383 N.W.2d 590 (1986), this Court held that when a no-
coordinated, and, as here, the health insurer (HMO) is a health fault insured coordinates no-fault and health coverages, health
care provider, and the no-fault insured seeks and obtains insurance is the “primary” coverage, and, thus, the health
medical care from or through the health insurer, the legislative insurer is primarily liable for payment of the insured's medical
purpose underlying § 3109a of avoiding duplicative payment expense. The Court so held in the construction of § 3109a,
is achieved because, in such a case, the medical care having stating that such construction was necessary to make effective
the legislative purpose in enacting § 3109a of eliminating, in

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

exchange for a reduction of the premium charged for no-fault generally has a wide choice of physicians and facilities. 12
insurance, health care coverage under a no-fault policy that is Section 3109a, however, does not require that “other health
duplicative of health care coverage with a health insurer. coverage,” with which the no-fault insured has chosen to
coordinate, provide the no-fault insured with such choice.
[6] The dispute in Kemper was between a no-fault insurer
and a health insurer. But the rationale of Kemper requires the Nor does the legislative policy embodied in § 3107, requiring
same construction when the dispute is between an insured a no-fault insurer to provide *310 necessary medical
under a no-fault policy and the no-fault insurer. If a no-fault expense, require that “other health coverage” under § 3109a
insured, who has chosen to coordinate no-fault and health provide the no-fault insured with a choice of physician or
coverages, could recover from the no-fault insurer medical facility.
expense obtainable from the health insurer, the legislative
purpose—eliminating, in exchange for reduction in premium, [7] The no-fault insured may retain a wide choice
health care coverage under a no-fault policy that is duplicative of physicians and facilities by not coordinating. Where,
of health care coverage with a health insurer—would be however, the no-fault **849 insured's employer chooses
defeated. Whether the controversy is between a no-fault and to provide health insurance, or the no-fault insured chooses
a health insurer, as in Kemper, or is between a no-fault insurer to obtain health insurance, from an HMO, and the no-fault
and a no-fault insured, as in the instant case, to make effective insured chooses to coordinate no-fault and health coverages,
the legislative policy underlying § 3109a, the health insurer is the no-fault insured has, in effect, thereby agreed to relinquish
the primary insurer to the extent the health insurer has agreed choice of physician and facility.
to pay for or provide necessary medical care.
Section 3109a and the Allstate policy concern “benefits”
It appears that in Kemper the health insurer was strictly “paid, payable or required to be provided.” No-fault benefits
an insurer and not also a provider of health care. In the
are usually expressed in dollar amounts. 13 Thinking of
instant case, the health insurer is a health care provider.
benefits in monetary terms is understandable when benefits
Section 3109a speaks of *309 “other health and accident
are provided to the recipient in dollar form. 14
coverage on the insured.” 10 Tousignant does not contend that
the health care provided by HAP is not “health coverage”
[8] Where, however, the health insurer is also a health care
within the meaning of § 3109a. It seems to be generally
provider, benefits cannot readily be expressed in monetary
understood and undoubted that HMO coverage is “health
terms. Nevertheless, medical services that a health insurer,
coverage” within the meaning of § 3109a, even though HMO
who is also a health care provider, is obliged to provide, and
coverage consists of providing services rather than paying
would provide if requested, are “benefits payable” within the
bills rendered by health care providers chosen by the no-fault
meaning of § 3109a and are “required to be provided” within
insured.
the meaning of the Allstate no-fault policy.

Health care coverage is most frequently provided by one's

employer. When an employer opts for coverage by an HMO,
rather than by a health insurer that pays bills rendered IV
by health care providers, there is generally limited choice
of physicians or facilities because the HMO generally The Allstate no-fault policy states that Allstate “shall not be
designates the physicians and facilities where services will be liable to the extent that any elements of loss covered under
Personal Protection Insurance allowable expenses benefits
performed. 11 When the “other health coverage” coordinated
are paid, *311 payable or required to be provided to or
with no-fault coverage is coverage by an HMO, the no-
on behalf of the named insured or any relative under the
fault insured will thus have limited choice of physicians or
provisions of any valid and collectible” health insurance
facilities through the HMO.
policy. (Emphasis added.)

When the “other health coverage” coordinated with no-

The Allstate policy thus states that Allstate will not pay any
fault coverage is coverage by a health insurer who is not a
expense that the health insurer has paid, will pay, or is required
health care provider (HMO), and thus the health insurer pays
bills rendered by health care providers, the no-fault insured

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

Section 3109a states that the coordination of benefits shall

to pay or provide. Allstate will only pay the expense the health
apply to “benefits payable.” The words “payable” and
insurer is not obligated to pay for or provide.
“required to be provided” are “functionally equivalent.” 17
We agree with Allstate that the language of its policy is a
fair construction of the meaning of § 3109a as construed in
Kemper, and fairly reflects what it means for a health insurer B
to be “primary.”
In deciding whether health care was available from HAP,
The question then is what benefits were “payable” or the focus should be on the HAP contract as it is applied in
“required to be provided” by HAP. practice. Section 3109a does not require a health insurer to
provide particular benefits. The availability of services thus
depends on what the contract means as applied in practice, a
question of fact as well as of legal construction of a contract
A
document.

In Perez v. State Farm Mutual Automobile Ins. Co., 418

Tousignant does not contend that HAP would not *313 or
Mich. 634, 344 N.W.2d 773 (1984), this Court construed the
term “required to be provided” under another section of the could not provide the medical care she needed. 18 Nor is this
no-fault act. The Court held that no setoff was available under a case in which it is claimed that the quality of the available
care was such that it can be said that the benefit was not
§ 3109(1) 15 for workers' compensation benefits where the
benefits would not in fact be paid to a worker injured in an available. 19
automobile accident because the employer had not obtained
workers' compensation insurance. The lead opinion states: Where there is no claim that the health insurer would not or
could not provide the necessary medical treatment, there is
no basis for a finding that the benefits were not available—
*312 “The ‘required to be provided’ clause of § 3109(1) not “payable” or “required to be provided”—from the health
means that the injured person is obliged to use reasonable insurer.
efforts to obtain payments that are available from a
workers' compensation insurer. If workers' compensation
payments are available to him, he does not have a choice
ROBERT P. GRIFFIN, MICHAEL F. CAVANAGH and
of seeking workers' compensation or no-fault benefits;
MALLETT, JJ., concur.
the no-fault insurer is entitled to subtract the available
workers' compensation payments even if they are not in
fact paid because of the failure of the injured person to use BOYLE, Justice (concurring in part and dissenting in part ).
For the reasons expressed in my separate opinion in Profit v.
reasonable efforts to obtain them.” 16 (Emphasis added.)
Citizens Ins. Co., 444 Mich. 281, 506 N.W.2d 514 (1993), I
“[P]rovided or required to be provided” is the term used in §
concur in the majority's result but disagree with the majority's
3109(1) establishing mandatory statutory coordination of no-
rationale.
fault benefits with benefits required to be provided under state
or federal law. Similar language **850 is used in the Allstate
policy. Section 3109(1) sets up a mandatory setoff by using
the terms “provided or required to be provided.” RILEY and BRICKLEY, JJ., concur.

All Citations

444 Mich. 301, 506 N.W.2d 844

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

Footnotes

1 Where the insured coordinates no-fault automobile insurance with other health coverage, coordination applies
to benefits payable to the insured, the spouse of the insured, and any relative of either domiciled in the same
household, as set forth in § 3109a of the no-fault automobile liability act:
“An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium
rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured.
The deductibles and exclusions required to be offered by this section shall be subject to prior approval by
the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse
of the insured and any relative of either domiciled in the same household.” M.C.L. § 500.3109a; M.S.A.
§ 24.13109(1).
2 We do not address the issues that might arise were a health insurer to fail to pay or reimburse an insured for
the expense or, in the case of a health insurer who is also a provider, fail to provide medical care.
3 See n 1 for text of § 3109a.
4 Section 3107 of the no-fault act provides:
“[P]ersonal protection insurance benefits are payable for the following:
“(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products,
services and accommodations for an injured person's care, recovery, or rehabilitation.” M.C.L. § 500.3107;
M.S.A. § 24.13107.
5 The Allstate policy provides:
“If medical expense benefits are identified as excess under Coverage VA in the declarations, Allstate shall
not be liable to the extent that any elements of loss covered under Personal Protection Insurance allowable
expenses benefits are paid, payable or required to be provided to or on behalf of the named insured or any
relative under the provisions of any valid and collectible
“(a) individual, blanket or group accident disability or hospitalization insurance,
“(b) medical or surgical reimbursement plan....”
6 Tousignant commenced this action in April, 1988, seeking no-fault benefits for medical expense, wage loss,
and replacement services. The only issue now before this Court is Allstate's liability for medical expense.
7 The majority observed that there was a conflict among panels of the Court regarding this issue, and referred
to Calhoun v. Auto Club Ins. Ass'n, 177 Mich.App. 85, 441 N.W.2d 54 (1989), and Major v. Auto Club
Ins. Ass'n, 185 Mich.App. 437, 462 N.W.2d 771 (1990).
The majority stated that it believed Calhoun represents “the better-reasoned view.” Id. at 418, 484 N.W.2d
404. A dissenting judge stated she would follow Major “which holds that an insured who pays a reduced
premium in exchange for coordinated medical benefits coverage is required to seek benefits provided by the
primary insurer before seeking payment from the no-fault insurer.” Id. at 419, 484 N.W.2d 404.
8
See Morgan v. Citizens Ins. Co., 432 Mich. 640, 648, n. 11, 442 N.W.2d 626 (1989).
9
LeBlanc v. State Farm Mutual Automobile Ins. Co., 410 Mich. 173, 197, 301 N.W.2d 775 (1981).
10 See n 1 for text of § 3109a.
11 An HMO merges the obligation to provide benefits with a requirement that treatment be obtained from
particular physicians designated by the HMO at or through HMO facilities.
12
See Morgan, n. 8 supra, 432 Mich. pp. 649–650, 442 N.W.2d 626.
13
Morgan, n. 8 supra, p. 646, 442 N.W.2d 626.
14
See O'Donnell v. State Farm Mutual Automobile Ins. Co., 404 Mich. 524, 273 N.W.2d 829 (1979) (social
security survivor's benefits); Thompson v. DAIIE, 418 Mich. 610, 344 N.W.2d 764 (1984) (social security
© benefits
disability 2021 Thomson
receivedReuters. No claim to original U.S. Government Works.
by dependents). 6
Tousignant v. Allstate Ins. Co., 444 Mich. 301 (1993)
506 N.W.2d 844

15 “Benefits provided or required to be provided under the laws of any state or the federal government shall
be subtracted from the personal protection insurance benefits otherwise payable for the injury.” M.C.L. §
500.3109(1); M.S.A. § 24.13109(1).
In Perez, the no-fault insurer had refused to pay no-fault medical and work loss benefits because it claimed
a setoff under § 3109(1) for workers' compensation benefits that were required to be provided under state
law. The injured worker would not, however, receive workers' compensation benefits because the employer
did not have this insurance coverage.
16
Perez, supra, pp. 645–646, 344 N.W.2d 773 (opinion of Levin, J.).
17
Perez, supra, p. 647, n. 19, 344 N.W.2d 773.
18
Cf. Owens v. ACIA, 444 Mich. 314, 506 N.W.2d 850 (1993), in which the plaintiff alleged that the Veteran's
Administration medical system could not provide the rehabilitation services he needed.
19
See Morgan, n. 8 supra, 432 Mich. pp. 649, 652, n. 3, 442 N.W.2d 626.

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