By Maxwell Coolidge
If you want to win an appeal, hire a grammar nerd. Don’t take my word for it, ask the plaintiff in Jesperson v Auto Club Insurance Association, opinion of the Michigan Supreme Court, issued March 21, 2016 (Docket No. 150332). In Jesperson the plaintiff was in a car accident on May 12, 2009. The accident was reported to defendant Auto Club Insurance Association (ACIA) on June 2, 2010, more than one year after the accident. On July 23, 2010, ACIA began paying personal protection insurance benefits to plaintiff. ACIA later stopped paying and plaintiff added ACIA as a defendant to an existing lawsuit related to the crash. ACIA moved for summary disposition arguing that plaintiff’s claim was barred by the 1-year statute of limitations found in MCL 500.3145(1). MCL 500.3145(1) states:
“An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury.”
Thus, the statute provides a one-year statute of limitations with two exceptions: (1) where the insurer receives written notice of the injury within the one-year period, or (2) where “the insurer has previously made a payment of personal protection insurance benefits for the injury.”
Resolution of this case turned on the definition of the word “previously,” and required the court to examine the disjunctive nature of the word “or” and the distinction between the indefinite article “a” and the definite article “the.”
The trial court granted defendant’s motion holding that the claim was time-barred. The Court of Appeals affirmed holding that the second exception only applies when the insurer starts making payments within one year of the accident. Justice Bridget McCormack, writing for a unanimous Supreme Court, disagreed with the Court of Appeals and reversed. First the Court stated that the word “or” as used in the statute indicates disunion – two alternative exceptions to the limitations period: the “notice” exception and the “payment” exception. The Court then noted that the phrase “within one year” is only stated within the notice exception – the payment exception uses the word “previously.”
Applying the principle that the Legislature did not inadvertently make use of one word or phrase instead of another, the Court concluded that
“‘previously’ must mean something different from ‘within 1 year after the accident.’” The court’s ultimate conclusion was that the word “previously” means any time before the commencement of the action.
The second sentence of the statute discusses an alternative limitations period where “the notice” has been given or “a payment” has been made. Here the Legislature’s choice of article was cited by the Court in support of its conclusion. The Court stated,
“While the second sentence of § 3145(1) refers to ‘the notice,’ it also refers to ‘a payment,’ suggesting that while the Legislature was referring to a specific notice—the notice given to the insurer within 1 year after the accident—it was not referring to a specific payment made at any particular time but rather to any payment previously made.”
Garrison Keillor half-mockingly promotes the Professional Organization of English Majors (POEM) on his radio show “A Prairie Home Companion”; in a case like this, you would do well to hire a card-carrying member as appellate counsel. The skill set that makes for a great trial lawyer does not typically include the ability or desire to finely parse the grammar, syntax, and vocabulary employed by the Legislature.
(Diagraming a sentence in front of a jury would be a great way to put them to sleep). On appeal, however, this work can be critical. Jesperson contains no sweeping discussion of public policy, nor does it look to dusty ancient legal doctrine. Victory in Jesperson went to the party that marshalled the argument from Webster’s Dictionary and the principle of giving words and phrases their ordinary, plain meaning. Hail to the conquering grammar nerds.
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Maxwell Coolidge received his bachelor's degree in human ecology from the College of the Atlantic in Bar Harbor, Maine, and graduated summa cum laude from Western Michigan University Cooley Law School. After law school, Max worked as a staff attorney for the Michigan Court of Appeals. He now uses his expertise in Michigan appellate practice to help clients who have been denied justice in the trial court get a second chance on appeal.
