Insurers Named as Defendants in Challenge to Michigan Auto Insurance Law

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Crash victims and a brain-injury rehabilitation facility challenged Michigan’s new auto insurance law on Oct. 3, contending that pending limits on reimbursement rates for nursing and other care violate their constitutional rights.

The lawsuit, filed in Ingham County Circuit Court, names two insurance companies and seeks a declaration that two provisions of the no-fault law are unconstitutional. Democratic Gov. Gretchen Whitmer signed the Republican-sponsored legislation and a subsequent fix in May and June, in a bid to lower high car premiums by letting drivers forego unlimited medical benefits starting next July.

Other key components will take effect in 2021. The suit disputes the legality of limiting reimbursements for in-home attendant care services provided by families of injured people and setting fee schedules for health providers.

“This new law essentially means government can step in and determine who can come into my home and provide my disabled wife her needed around-the-clock care,” said Dr. Michael Andary.

He is the guardian of one of the plaintiffs, Ellen Andary of East Lansing. She sustained near-fatal injuries in 2014 when a drunken driver going the wrong way on U.S. 127 nearly Mt. Pleasant hit a vehicle in which she was a passenger. The suit says she receives 36 hours of in-home attendant care a day — 24 of unskilled care and 12 of skilled care.

The law will cap reimbursement to families at 56 hours a week, or eight per day — which the complaint says will retroactively interfere with the vested contractual rights included in the insurance policy of Andary and another plaintiff, Philip Krueger. He sustained a traumatic brain injury and other injuries in a 1990 accident and is a residential patient at the Ann Arbor-based Eisenhower Center, which also joined the suit.

The 156-patient facility says it is at risk of going out of business due to the law, which includes fee schedules to restrict what car insurers must pay for care, recovery and rehabilitation. Beginning in July 2021, the rehab center will be reimbursed at 55% of what it charged this past January, a rate that will drop to 52.5% by mid-2023.

“The Michigan Legislature’s passing of this new, rushed law is a stain on the legal and moral conscience of this great state,” said George Sinas, the lawyer for those suing and general counsel for the Coalition Protecting Auto No-Fault, which opposes the revised law. Thousands of people, including those catastrophically injured in crashes and some Democratic lawmakers, rallied against the law outside the Capitol last week.

Unlike several other no-fault states, hospitals, doctors and rehab facilities treating crash victims have effectively been able to charge auto insurers far more than they do for patients covered by private or government health plans.

Supporters of the new law have said the lack of fee schedules and Michigan’s one-of-a-kind mandate for unlimited medical coverage are big reasons why premiums are so much higher in the state.

A spokesman for one defendant, Howell-based Citizens Insurance Company of America, declined to comment. A message seeking comment was left with the other defendant, San Antonio-based USAA Casualty Insurance Co.

The Insurance Alliance of Michigan, an industry group that has welcomed the law while saying the “overcharging” of accident victims should stop sooner than 2021, said it was reviewing the suit.

Legal challenges to other parts of the law could be filed later.

Starting in July, motorists will be able to pick among levels of personal injury protection — which on average accounts for half of premiums.

Insurers will be required, for eight years, to reduce — on average— the PIP portion of policies by between 10% and 45% depending on the option a driver chooses. They will be prohibited from using nondriving factors such as homeownership, educational level, occupation, ZIP code or credit scores in setting rates — though critics have said other avenues for potential discriminatory prices remain intact.