Applicability of MCL 500.3107c(3); The law-of-the-case doctrine; Effect of the court’s decision in Downer v USA Underwriters (Unpub); Distinguishing Northland Radiology, Inc v Allstate Fire & Cas Ins Co; Whether the rebuttable presumption was established; Whether an affidavit was legally deficient; MCR 2.119(B)(1); VHS of Michigan, Inc., d/b/as Detroit Medical Center (DMC)

The court held that its conclusion in Downer that MCL 500.3107c(3)’s rebuttable presumption applied governed here under the law-of-the-case doctrine. It rejected plaintiff-DMC’s reliance on Northland Radiology, and its contention that defendant-USA Underwriters’ affidavit failed to establish the presumption because it was legally deficient under MCR 2.119(B)(1). Thus, the court affirmed the trial court’s order granting USA summary disposition in part, and its opinion and order denying DMC’s motion for reconsideration. This case arose out of the same relevant facts as Downer. DMC argued on appeal here that MCL 500.3107c(3)’s rebuttable presumption did not apply “because the statute does not address circumstances in which a selection of coverage is ineffective due to the insured’s statutory ineligibility to make” it. But the court determined that it previously addressed DMC’s arguments relating to the statute’s applicability, and the facts remained “materially the same as in the previous appeal.” It expressly held in Downer “that MCL 500.3107c(3) applied and remanded the case for further proceedings to determine whether the rebuttable presumption had been sufficiently established and, if so, whether it had been rebutted.” Northland Radiology and Downer addressed “distinct statutory issues.” The rebuttable presumption under MCL 500.3107c(3) “precludes the automatic application of the unlimited PIP benefits otherwise available under MCL 500.3107c(1)(d) when an applicant or named insured, such as Downer, makes an ineffective selection.” As to the affidavit provided by a USA employee (T), she explained in it that she was a USA underwriting specialist “and had been assigned to review Downer’s application and payment history.” Her statements as to these “matters logically flowed from the review she was assigned to conduct, making it apparent that the affidavit was based on her personal knowledge. Moreover, [T] affirmed under the penalty of perjury that the statements contained in the affidavit were true, further supporting the reliability of her assertions.” The affidavit also “cited and attached several supporting documents substantiating” her assertions.