Action for first-party no-fault personal insurance protection (PIP) benefits; Real party in interest; Barclae v Zarb; Assignments of the right to pursue PIP benefits; Whether revoking the assignments allowed plaintiff to maintain a PIP claim she filed pre-revocation; Nunc pro tunc; Enzo APA & Son, Inc v Geapag AG (Fed Cir); Effect of a mutual revocation of assignment; Suburban Mobility Authority for Regional Transportation (SMART)

Holding that the revocation of plaintiff’s assignments to medical providers of her right to pursue PIP benefits did not allow her to maintain her PIP claim filed before the revocation, the court reversed the trial court’s order partially denying defendant-SMART summary disposition. Before filing suit, plaintiff “assigned her rights to recover PIP benefits to several of her medical providers[.]” When SMART moved for summary disposition, asserting that she lacked standing as she had already assigned her claims to the providers, she contended “that after she filed her complaint, she and a number of her medical providers executed ‘Mutual Revocation[s] of Assignment(s).’” While the trial court granted SMART’s motion as to a provider that had filed its own suit, it denied the motion as to two other providers. On appeal, the court concluded plaintiff was not the real party in interest when she filed this action because her “rights to recover the unpaid medical bills were divested by virtue of the assignments.” As the real parties in interest, the providers “owned the right to bring an action to recover the unpaid” bills. But the record showed that except for one, they did not do so “within a year of providing the services.” As a result, their “rights under the assignment were statutorily barred. While plaintiff timely sued to recover the cost of the medical services, she had assigned those rights to the medical providers, who were now the real parties in interest. In order to remedy that situation, the revocations” that were signed contained “‘nunc pro tunc’ language in an attempt to essentially eradicate the original assignments. The attempt, though creative, did not have the intended effect.” Reviewing federal patent and trademark cases that have used the nunc pro tunc term, the court found that while this was not a patent or trademark case, “the same logic applies: one must be the real party in interest at the time the lawsuit is filed, and a retroactive, or nunc pro tunc, revocation may not be used to correct a factual problem that existed when the lawsuit was filed.” The revocations were effective as of the date they “were executed and could not essentially eliminate the fact that the assignments” took place before plaintiff filed suit. And the providers did not have timely claims to return to her at that point. “Thus, the mutual revocations did not reassign any timely claims to plaintiff.” Remanded.