Bill Text: MI SB0649 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Insurance; no-fault; coverage and benefits; make miscellaneous changes. Amends secs. 3101, 3104, 3107, 3114, 3115, 3135, 3157, 3163 & 3172 of 1956 PA 218 (MCL 500.3101 et seq.) & adds secs. 1245, 3107c & 3178.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2011-09-15 - Referred To Committee On Insurance [SB0649 Detail]
Download: Michigan-2011-SB0649-Introduced.html
SENATE BILL No. 649
September 15, 2011, Introduced by Senators HUNE and SMITH and referred to the Committee on Insurance.
A bill to amend 1956 PA 218, entitled
"The insurance code of 1956,"
by amending sections 3101, 3104, 3107, 3114, 3115, 3135, 3157,
3163, and 3172 (MCL 500.3101, 500.3104, 500.3107, 500.3114,
500.3115, 500.3135, 500.3157, 500.3163, and 500.3172), section 3101
as amended by 2008 PA 241, section 3104 as amended by 2002 PA 662,
section 3107 as amended by 1991 PA 191, section 3114 as amended by
2002 PA 38, sections 3135 and 3163 as amended by 2002 PA 697, and
section 3172 as amended by 1984 PA 426, and by adding sections
1245, 3107c, and 3178.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1245. (1) An insurance producer and an agency and their
authorized representatives and employees involved in the sale or
purchase of personal protection insurance benefits under section
3107 are not liable for damages arising from the loss or inadequacy
of personal protection insurance benefits and do not have any other
liability for damages caused by, arising out of, or related to any
actual or alleged act, error, or omission concerning the choice of
personal protection insurance benefit amounts under section 3107.
(2) As used in this section, "agency" means that term as
defined in section 1243.
Sec. 3101. (1) The owner or registrant of a motor vehicle
required to be registered in this state shall maintain security for
payment
of benefits under personal protection insurance , in an
amount not less than that required under section 3107(1)(a)(i) and
property
protection insurance , and
residual liability insurance in
an amount not less than that required under section 3009. Security
shall only be required to be in effect during the period the motor
vehicle is driven or moved upon a highway. Notwithstanding any
other provision in this act, an insurer that has issued an
automobile insurance policy on a motor vehicle that is not driven
or moved upon a highway may allow the insured owner or registrant
of the motor vehicle to delete a portion of the coverages under the
policy and maintain the comprehensive coverage portion of the
policy in effect.
(2) As used in this chapter:
(a) "Automobile insurance" means that term as defined in
section 2102.
(b) "Highway" means that term as defined in section 20 of the
Michigan vehicle code, 1949 PA 300, MCL 257.20.
(c) "Motorcycle" means a vehicle having a saddle or seat for
the use of the rider, designed to travel on not more than 3 wheels
in contact with the ground, which is equipped with a motor that
exceeds 50 cubic centimeters piston displacement. The wheels on any
attachment to the vehicle shall not be considered as wheels in
contact with the ground. Motorcycle does not include a moped, as
defined in section 32b of the Michigan vehicle code, 1949 PA 300,
MCL 257.32b. Motorcycle does not include an ORV.
(d) "Motorcycle accident" means a loss involving the
ownership, operation, maintenance, or use of a motorcycle as a
motorcycle, but not involving the ownership, operation,
maintenance, or use of a motor vehicle as a motor vehicle.
(e) "Motor vehicle" means a vehicle, including a trailer,
operated or designed for operation upon a public highway by power
other
than muscular power which that
has more than 2 wheels. Motor
vehicle does not include a motorcycle or a moped, as defined in
section 32b of the Michigan vehicle code, 1949 PA 300, MCL 257.32b.
Motor vehicle does not include a farm tractor or other implement of
husbandry
which that is not subject to the registration
requirements of the Michigan vehicle code pursuant to section 216
of the Michigan vehicle code, 1949 PA 300, MCL 257.216. Motor
vehicle does not include an ORV.
(f) "Motor vehicle accident" means a loss involving the
ownership, operation, maintenance, or use of a motor vehicle as a
motor vehicle regardless of whether the accident also involves the
ownership, operation, maintenance, or use of a motorcycle as a
motorcycle.
(g) "ORV" means a motor-driven recreation vehicle designed for
off-road use and capable of cross-country travel without benefit of
road or trail, on or immediately over land, snow, ice, marsh,
swampland, or other natural terrain. ORV includes, but is not
limited to, a multitrack or multiwheel drive vehicle, a motorcycle
or related 2-wheel, 3-wheel, or 4-wheel vehicle, an amphibious
machine, a ground effect air cushion vehicle, an ATV as defined in
section 81101 of the natural resources and environmental protection
act, 1994 PA 451, MCL 324.81101, or other means of transportation
deriving motive power from a source other than muscle or wind. ORV
does not include a vehicle described in this subdivision that is
registered for use upon a public highway and has the security
described in section 3101 or 3103 in effect.
(h) "Owner" means any of the following:
(i) A person renting a motor vehicle or having the use
thereof,
of a motor vehicle, under a lease or otherwise, for a period that
is greater than 30 days.
(ii) A person who holds the legal title to a vehicle, other
than a person engaged in the business of leasing motor vehicles who
is the lessor of a motor vehicle pursuant to a lease providing for
the use of the motor vehicle by the lessee for a period that is
greater than 30 days.
(iii) A person who has the immediate right of possession of a
motor vehicle under an installment sale contract.
(i) "Registrant" does not include a person engaged in the
business of leasing motor vehicles who is the lessor of a motor
vehicle pursuant to a lease providing for the use of the motor
vehicle by the lessee for a period that is greater than 30 days.
(3) Security may be provided under a policy issued by an
insurer
duly authorized to transact business in this state which
that affords insurance for the payment of benefits described in
subsection (1). A policy of insurance represented or sold as
providing security is considered to provide insurance for the
payment of the benefits.
(4) Security required by subsection (1) may be provided by any
other method approved by the secretary of state as affording
security equivalent to that afforded by a policy of insurance, if
proof of the security is filed and continuously maintained with the
secretary of state throughout the period the motor vehicle is
driven or moved upon a highway. The person filing the security has
all the obligations and rights of an insurer under this chapter.
When the context permits, "insurer" as used in this chapter,
includes any person filing the security as provided in this
section.
Sec. 3104. (1) An unincorporated, nonprofit association to be
known
as the catastrophic claims association
, hereinafter referred
to
as the association, is created.
Each insurer engaged in writing
insurance coverages that provide the security required by section
3101(1) within this state, as a condition of its authority to
transact insurance in this state, shall be a member of the
association and shall be bound by the plan of operation of the
association. Each insurer engaged in writing insurance coverages
that provide the security required by section 3103(1) within this
state, as a condition of its authority to transact insurance in
this state, shall be considered a member of the association, but
only for purposes of premiums under subsection (7)(d). Except as
expressly provided in this section, the association is not subject
to any laws of this state with respect to insurers, but in all
other respects the association is subject to the laws of this state
to the extent that the association would be if it were an insurer
organized and subsisting under chapter 50.
(2)
The All of the following
apply to the amount of ultimate
loss sustained under personal protection insurance coverages:
(a) For loss occurrences attributable to a motor vehicle
accident for policies issued or renewed before July 1, 2012, the
association shall provide, payable from the MCCA account under
subsection (25)(a), and each member shall accept indemnification
for 100% of the amount of ultimate loss sustained under personal
protection insurance coverages in excess of the following amounts
in each loss occurrence:
(i) (a)
For a motor vehicle accident policy
issued or renewed
before July 1, 2002, $250,000.00.
(ii) (b)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2002 to June 30, 2003, $300,000.00.
(iii) (c)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2003 to June 30, 2004, $325,000.00.
(iv) (d)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2004 to June 30, 2005, $350,000.00.
(v) (e)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2005 to June 30, 2006, $375,000.00.
(vi) (f)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2006 to June 30, 2007, $400,000.00.
(vii) (g)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2007 to June 30, 2008, $420,000.00.
(viii) (h)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2008 to June 30, 2009, $440,000.00.
(ix) (i)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2009 to June 30, 2010, $460,000.00.
(x) (j)
For a motor vehicle accident policy
issued or renewed
during the period July 1, 2010 to June 30, 2011, $480,000.00.
(xi) (k)
For a motor vehicle accident policy
issued or renewed
during
the period July 1, 2011 to June 30, 2013 2012,
$500,000.00.
Beginning
July 1, 2013, this $500,000.00 amount shall be increased
biennially
on July 1 of each odd-numbered year, for policies issued
or
renewed before July 1 of the following odd-numbered year, by the
lesser
of 6% or the consumer price index, and rounded to the
nearest
$5,000.00. This biennial adjustment shall be calculated by
the
association by January 1 of the year of its July 1 effective
date.
(b) For loss occurrences attributable to a motor vehicle
accident for policies issued or renewed on or after July 1, 2012,
each member shall retain 100% of the amount of ultimate loss
sustained under personal protection insurance coverages up to
$500,000.00 in each loss occurrence. For an ultimate loss of
$500,000.00 to $1,000,000.00, the association shall provide,
payable from the excess PIP account under subsection (25)(b), and
each member shall accept, indemnification for 90% of the amount of
ultimate loss sustained under personal protection insurance
coverages. For an ultimate loss in excess of $1,000,000.00, the
association shall provide, payable from the excess PIP account
under subsection (25)(b), and each member shall accept,
indemnification for 100% of the amount of ultimate loss sustained
under personal protection insurance coverages.
(3) An insurer may withdraw from the association only upon
ceasing to write insurance that provides the security required by
section 3101(1) in this state.
(4) An insurer whose membership in the association has been
terminated by withdrawal shall continue to be bound by the plan of
operation,
and upon withdrawal , all
unpaid premiums that have been
charged to the withdrawing member are payable as of the effective
date of the withdrawal.
(5) An unsatisfied net liability to the association of an
insolvent member shall be assumed by and apportioned among the
remaining members of the association as provided in the plan of
operation. The association has all rights allowed by law on behalf
of the remaining members against the estate or funds of the
insolvent
member for sums money due to
the association.
(6) If a member has been merged or consolidated into another
insurer or another insurer has reinsured a member's entire business
that provides the security required by section 3101(1) in this
state, the member and successors in interest of the member remain
liable for the member's obligations.
(7) The association shall do all of the following on behalf of
the members of the association:
(a)
Assume 100% of all liability as provided in subsection
(2).
(b) Establish procedures by which members shall promptly
report to the association each claim that, on the basis of the
injuries or damages sustained, may reasonably be anticipated to
involve the association if the member is ultimately held legally
liable for the injuries or damages. Solely for the purpose of
reporting claims, the member shall in all instances consider itself
legally liable for the injuries or damages. The member shall also
advise the association of subsequent developments likely to
materially affect the interest of the association in the claim.
(c) Maintain relevant loss and expense data relative to all
liabilities of the association and require each member to furnish
statistics, in connection with liabilities of the association, at
the times and in the form and detail as may be required by the plan
of operation.
(d) In a manner provided for in the plan of operation,
calculate
and charge to members of the association a total premium
for the MCCA account under subsection (25)(a) and a premium for the
excess PIP account under subsection (25)(b). Each premium shall be
sufficient to cover the expected losses and expenses of the
association that the association will likely incur during the
period
for which the premium is applicable
for each account. The
Each premium shall include an amount to cover incurred but not
reported losses for the period and may be adjusted for any excess
or deficient premiums from previous periods. Excesses or
deficiencies from previous periods may be fully adjusted in a
single period or may be adjusted over several periods in a manner
provided for in the plan of operation. Each member shall be charged
an amount equal to that member's total written car years of
insurance providing the security required by section 3101(1) or
3103(1), or both, written in this state during the period to which
the premium applies, multiplied by the average premium per car. The
premium for the excess PIP account shall be adjusted to reflect the
amount of coverage selected by each member's insureds under section
3107. The average premium per car shall be the total premium
calculated divided by the total written car years of insurance
providing the security required by section 3101(1) or 3103(1)
written in this state of all members during the period to which the
premium applies. A member shall be charged a premium for a historic
vehicle that is insured with the member of 20% of the premium
charged for a car insured with the member. As used in this
subdivision:
(i) "Car" includes a motorcycle but does not include a historic
vehicle.
(ii) "Historic vehicle" means a vehicle that is a registered
historic vehicle under section 803a or 803p of the Michigan vehicle
code, 1949 PA 300, MCL 257.803a and 257.803p.
(e) Require and accept the payment of premiums from members of
the association as provided for in the plan of operation. The
association shall do either of the following:
(i) Require payment of the premium in full within 45 days after
the premium charge.
(ii) Require payment of the premiums to be made periodically to
cover the actual cash obligations of the association.
(f)
Receive and distribute all sums money
required by the
operation of the association.
(g) Establish procedures for reviewing claims procedures and
practices of members of the association. If the claims procedures
or practices of a member are considered inadequate to properly
service the liabilities of the association, the association may
undertake or may contract with another person, including another
member, to adjust or assist in the adjustment of claims for the
member on claims that create a potential liability to the
association and may charge the cost of the adjustment to the
member.
(8) In addition to other powers granted to it by this section,
the association may do all of the following:
(a) Sue and be sued in the name of the association. A judgment
against the association shall not create any direct liability
against the individual members of the association. The association
may provide for the indemnification of its members, members of the
board of directors of the association, and officers, employees, and
other persons lawfully acting on behalf of the association.
(b) Reinsure all or any portion of its potential liability
with reinsurers licensed to transact insurance in this state or
approved by the commissioner.
(c) Provide for appropriate housing, equipment, and personnel
as may be necessary to assure the efficient operation of the
association.
(d) Pursuant to the plan of operation, adopt reasonable rules
for the administration of the association, enforce those rules, and
delegate authority, as the board considers necessary to assure the
proper administration and operation of the association consistent
with the plan of operation.
(e) Contract for goods and services, including independent
claims management, actuarial, investment, and legal services, from
others within or without this state to assure the efficient
operation of the association.
(f) Hear and determine complaints of a company or other
interested party concerning the operation of the association.
(g) Perform other acts not specifically enumerated in this
section that are necessary or proper to accomplish the purposes of
the association and that are not inconsistent with this section or
the plan of operation.
(9)
A board of directors is created , hereinafter referred to
as
the board, which shall be that
is responsible for the operation
of the association consistent with the plan of operation and this
section.
(10) The plan of operation shall provide for all of the
following:
(a) The establishment of necessary facilities.
(b) The management and operation of the association.
(c) Procedures to be utilized in charging premiums, including
adjustments from excess or deficient premiums from prior periods.
(d) Procedures governing the actual payment of premiums to the
association.
(e) Reimbursement of each member of the board by the
association for actual and necessary expenses incurred on
association business.
(f) The investment policy of the association.
(g) Any other matters required by or necessary to effectively
implement this section.
(11) Each board shall include members that would contribute a
total
of not less than 40% of the total premium premiums calculated
pursuant
to subsection (7)(d). Each director shall be is entitled
to
1 vote. The initial term of office of a director shall be is 2
years.
(12) As part of the plan of operation, the board shall adopt
rules providing for the composition and term of successor boards to
the initial board, consistent with the membership composition
requirements in subsections (11) and (13). Terms of the directors
shall be staggered so that the terms of all the directors do not
expire at the same time and so that a director does not serve a
term of more than 4 years.
(13) The board shall consist of 5 directors, and the
commissioner shall be an ex officio member of the board without
vote.
(14) Each director shall be appointed by the commissioner and
shall serve until that member's successor is selected and
qualified. The chairperson of the board shall be elected by the
board. A vacancy on the board shall be filled by the commissioner
consistent with the plan of operation.
(15) After the board is appointed, the board shall meet as
often as the chairperson, the commissioner, or the plan of
operation shall require, or at the request of any 3 members of the
board. The chairperson shall retain the right to vote on all
issues. Four members of the board constitute a quorum.
(16) An annual report of the operations of the association in
a
form and detail as may be determined by the board shall be
furnished to each member.
(17) Not more than 60 days after the initial organizational
meeting of the board, the board shall submit to the commissioner
for approval a proposed plan of operation consistent with the
objectives and provisions of this section, which shall provide for
the economical, fair, and nondiscriminatory administration of the
association and for the prompt and efficient provision of
indemnity. If a plan is not submitted within this 60-day period,
then the commissioner, after consultation with the board, shall
formulate and place into effect a plan consistent with this
section.
(18) The plan of operation, unless approved sooner in writing,
shall be considered to meet the requirements of this section if it
is not disapproved by written order of the commissioner within 30
days after the date of its submission. Before disapproval of all or
any part of the proposed plan of operation, the commissioner shall
notify the board in what respect the plan of operation fails to
meet the requirements and objectives of this section. If the board
fails to submit a revised plan of operation that meets the
requirements and objectives of this section within the 30-day
period, the commissioner shall enter an order accordingly and shall
immediately formulate and place into effect a plan consistent with
the requirements and objectives of this section.
(19) The proposed plan of operation or amendments to the plan
of operation are subject to majority approval by the board,
ratified by a majority of the membership having a vote, with voting
rights being apportioned according to the premiums charged in
subsection (7)(d), and are subject to approval by the commissioner.
(20) Upon approval by the commissioner and ratification by the
members of the plan submitted, or upon the promulgation of a plan
by the commissioner, each insurer authorized to write insurance
providing the security required by section 3101(1) in this state,
as provided in this section, is bound by and shall formally
subscribe to and participate in the plan approved as a condition of
maintaining its authority to transact insurance in this state.
(21) The association is subject to all the reporting, loss
reserve, and investment requirements of the commissioner to the
same
extent as would is a member of the association.
(22) Premiums charged members by the association shall be
recognized in the rate-making procedures for insurance rates in the
same manner that expenses and premium taxes are recognized.
(23) The commissioner or an authorized representative of the
commissioner may visit the association at any time and examine any
and all the association's affairs.
(24) The association does not have liability for losses
occurring before July 1, 1978.
(25) The association shall maintain the following 2 separate
accounts out of which members shall be indemnified for ultimate
loss:
(a) An MCCA account to indemnify for loss occurrences
attributable to a motor vehicle accident that occurs before July 1,
2012.
(b) An excess PIP account to indemnify for loss occurrences
attributable to a motor vehicle accident that occurs on or after
July 1, 2012.
(26) Each account under subsection (25) shall be self-
supporting, and assets or liabilities shall not be transferred
between the accounts.
(27) (25)
As used in this section:
(a)
"Consumer price index" means the percentage of change in
the
consumer price index for all urban consumers in the United
States
city average for all items for the 24 months prior to
October
1 of the year prior to the July 1 effective date of the
biennial
adjustment under subsection (2)(k) as reported by the
United
States department of labor, bureau of labor statistics, and
as
certified by the commissioner.
(a) "Association" means the catastrophic claims association
created in subsection (1).
(b) "Board" means the board of directors created in subsection
(9).
(c) (b)
"Motor vehicle accident
policy" means a policy
providing the coverages required under section 3101(1).
(d) (c)
"Ultimate loss" means the
actual loss amounts that a
member is obligated to pay and that are paid or payable by the
member,
and do does not include claim expenses. An ultimate loss is
incurred by the association on the date that the loss occurs.
Sec.
3107. (1) Except as provided in subsection (2), personal
Personal protection insurance benefits are payable for the
following:
(a)
Allowable expenses consisting of all reasonable charges as
provided in subparagraph (i), (ii), (iii), or (iv) incurred for
reasonably necessary products, services, and accommodations for an
injured
person's care, recovery, or rehabilitation. Allowable
expenses
within personal protection insurance coverage shall not
include
charges for a hospital room in excess of a reasonable and
customary
charge for semiprivate accommodations except if the
injured
person requires special or intensive care, or for funeral
and
burial expenses in the amount set forth in the policy which
shall
not be less than $1,750.00 or more than $5,000.00. Any change
in a limit selected under subparagraph (i), (ii), (iii), or (iv)
applies only to benefits payable for an accident that occurs on or
after the date of the change in the limit. An insurer shall provide
the following coverages, and an insured shall select 1 of the
following coverages, which shall apply to the insured named in the
policy, the insured's spouse, and any relative of either domiciled
in the same household:
(i) Coverage for allowable expenses consisting of all
reasonable charges incurred up to a maximum of $250,000.00 for
reasonably necessary products, services, and accommodations for an
injured person's care, recovery, or rehabilitation.
(ii) Coverage for allowable expenses consisting of all
reasonable charges incurred up to a maximum of $500,000.00 for
reasonably necessary products, services, and accommodations for an
injured person's care, recovery, or rehabilitation.
(iii) Coverage for allowable expenses consisting of all
reasonable charges incurred up to a maximum of $1,000,000.00 for
reasonably necessary products, services, and accommodations for an
injured person's care, recovery, or rehabilitation.
(iv) Coverage for allowable expenses consisting of all
reasonable charges incurred up to a maximum of $5,000,000.00 for
reasonably necessary products, services, and accommodations for an
injured person's care, recovery, or rehabilitation.
(b)
Work Except as provided in
subsection (2), work loss
consisting of loss of income from work an injured person would have
performed during the first 3 years after the date of the accident
if he or she had not been injured. Work loss does not include any
loss after the date on which the injured person dies. Because the
benefits received from personal protection insurance for loss of
income are not taxable income, the benefits payable for such loss
of income shall be reduced 15% unless the claimant presents to the
insurer in support of his or her claim reasonable proof of a lower
value of the income tax advantage in his or her case, in which case
the lower value shall apply. Beginning March 30, 1973, the benefits
payable for work loss sustained in a single 30-day period and the
income earned by an injured person for work during the same period
together shall not exceed $1,000.00, which maximum shall apply pro
rata to any lesser period of work loss. Beginning October 1, 1974,
the maximum shall be adjusted annually to reflect changes in the
cost of living under rules prescribed by the commissioner but any
change in the maximum shall apply only to benefits arising out of
accidents occurring subsequent to the date of change in the
maximum.
(c) Expenses not exceeding $20.00 per day, reasonably incurred
in obtaining ordinary and necessary services in lieu of those that,
if he or she had not been injured, an injured person would have
performed during the first 3 years after the date of the accident,
not for income but for the benefit of himself or herself or of his
or her dependent.
(2) A person who is 60 years of age or older and in the event
of an accidental bodily injury would not be eligible to receive
work loss benefits under subsection (1)(b) may waive coverage for
work loss benefits by signing a waiver on a form provided by the
insurer. An insurer shall offer a reduced premium rate to a person
who waives coverage under this subsection for work loss benefits.
Waiver of coverage for work loss benefits applies only to work loss
benefits payable to the person or persons who have signed the
waiver form.
(3) The following apply to subsection (1)(a):
(a) If an insured fails to select 1 of the personal protection
coverage limits, an insurer shall provide coverage in the amount
set forth in subsection (1)(a)(i).
(b) The same personal protection coverage limits apply to all
motor vehicles insured under the same policy.
(c) Coverage limits are provided on a per individual per loss
occurrence basis. Coverage applies only to benefits payable to the
insured named in the policy, the insured's spouse, and any relative
of either domiciled in the same household.
(d) A person who is not an insured named in a policy, not the
insured's spouse, and not a relative of either domiciled in the
same household is entitled only to coverage in the limit set forth
in subsection (1)(a)(i). Personal protection insurance benefits
payable under this subdivision are not payable to the extent that
the benefits covering the same loss are available from other
sources, regardless of the nature and number of benefit sources
available and regardless of the nature or form of the benefits.
(e) Regardless of the number of motor vehicles insured or
insurers providing security in accordance with this chapter, or the
provisions of any other law providing for direct benefits without
regard to fault for motor or any other vehicle accidents, a person
shall not recover duplicate benefits for the same expenses or
losses incurred.
(f) If eligible under section 3163, personal protection
insurance benefits are limited to the limit set forth in section
3163 for accidents occurring in this state if the injured person is
a nonresident of this state and the injured person's benefits are
payable under a policy delivered outside of this state.
(g) Personal protection insurance benefits are not payable to
a nonresident injured in an accident occurring outside of this
state to the extent that benefits covering the same loss are
available from other sources, regardless of the nature and number
of benefit sources available and regardless of the nature or form
of the benefits. If personal protection insurance benefits are
payable to a nonresident under this subdivision, the benefits are
limited to the limit set forth in subsection (1)(a)(i) per
individual per loss occurrence.
Sec. 3107c. (1) Allowable expenses under section 3107(1)(a) do
not include charges for a hospital room in excess of a reasonable
and customary charge for semiprivate accommodations, unless the
injured person requires special or intensive care, or charges for
funeral and burial expenses in excess of the amount set forth in
the policy, which shall not be less than $1,750.00 or more than
$5,000.00.
(2) All of the following apply to allowable expenses under
section 3107(1)(a) for attendant care or nursing services provided
in the injured person's home:
(a) Payment is limited to a total of 56 hours per week for
services performed by 1 or more individuals who are not certified,
registered, or licensed to render the attendant care or nursing
services under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(b) Payment for services performed by an individual who is not
certified, registered, or licensed to render the attendant care or
nursing services under article 15 of the public health code, 1978
PA 368, MCL 333.16101 to 333.18838, shall be $11.00 per hour for
basic care or $17.00 per hour for skilled care. Beginning January
1, 2013, the amounts in this subdivision shall be adjusted annually
to reflect changes in the cost of living under rules prescribed by
the commissioner in the same manner as the maximum under section
3107(1)(b) is adjusted. Any changes in the amounts apply only to
services rendered after the effective date of the changes.
(3) As used in this section:
(a) "Basic care" means any of the following:
(i) Providing personal care services, including, but not
limited to, bathing, shampooing, skin care, oral hygiene, shaving
male patients, catheter care, and toileting assistance, including
urinal and bedpan assistance.
(ii) Measuring and documenting vital signs.
(iii) Providing or assisting with exercise, ambulation, or
positioning as directed by a nurse or therapist, including
ambulation with or without assistive devices, basic range of motion
both passive and active, light pivot transfers, and assisting from
bed, chair, or commode.
(iv) Providing environmental and homemaking services, including
bed-making whether occupied or unoccupied, light housekeeping to
maintain a healthy environment, laundering of bedding and clothing,
shopping for groceries, and transportation as necessary.
(v) Assisting with self-administered medications.
(b) "Skilled care" means providing basic care services and any
of the following:
(i) Performing intermittent straight catheterization, catheter
perineal care, and colostomy care as directed.
(ii) Performing a bowel program under the direction of a
registered nurse.
(iii) Performing tube feedings and simple wound care under the
direction of a registered nurse.
(iv) Performing full 1-person transfers and transfers using a
patient lift or hoist.
Sec. 3114. (1) Except as provided in subsections (2), (3), and
(5), a personal protection insurance policy described in section
3101(1) applies to accidental bodily injury to the person named in
the policy, the person's spouse, and a relative of either domiciled
in the same household, if the injury arises from a motor vehicle
accident. A personal injury insurance policy described in section
3103(2) applies to accidental bodily injury to the person named in
the policy, the person's spouse, and a relative of either domiciled
in the same household, if the injury arises from a motorcycle
accident. When personal protection insurance benefits described in
section 3107(1), or personal injury benefits described in section
3103(2), are payable to or for the benefit of an injured person
under his or her own policy and would also be payable under the
policy of his or her spouse, relative, or relative's spouse, the
injured person's insurer shall pay all of the benefits and is not
entitled to recoupment from the other insurer. The coverage for
allowable expenses for 2 or more motor vehicles under 1 policy or
for 2 or more policies shall not be added together, combined, or
stacked to determine the limit of insurance coverage available for
each injured person covered under the policy.
(2) A person suffering accidental bodily injury while an
operator or a passenger of a motor vehicle operated in the business
of transporting passengers shall receive the personal protection
insurance benefits to which the person is entitled from the insurer
of the motor vehicle. This subsection does not apply to a passenger
in the following, unless that passenger is not entitled to personal
protection insurance benefits under any other policy:
(a) A school bus, as defined by the department of education,
providing transportation not prohibited by law.
(b) A bus operated by a common carrier of passengers certified
by the department of transportation.
(c) A bus operating under a government sponsored
transportation program.
(d) A bus operated by or providing service to a nonprofit
organization.
(e) A taxicab insured as prescribed in section 3101 or 3102.
(f) A bus operated by a canoe or other watercraft, bicycle, or
horse livery used only to transport passengers to or from a
destination point.
(3) An employee, his or her spouse, or a relative of either
domiciled
in the same household , who
suffers accidental bodily
injury while an occupant of a motor vehicle owned or registered by
the
employer , shall
receive personal protection insurance benefits
to
which the employee is entitled from in the following order of
priority:
(a) From the insurer of the furnished vehicle.
(b) From his or her own policy, from his or her spouse's
policy, or from the policy of a relative of either the person or
his or her spouse domiciled in the same household.
(4) Except as provided in subsections (1) to (3), a person
suffering accidental bodily injury arising from a motor vehicle
accident while an occupant of a motor vehicle shall claim personal
protection insurance benefits from insurers in the following order
of priority:
(a) The insurer of the owner or registrant of the vehicle
occupied.
(b) The insurer of the operator of the vehicle occupied.
(5) A person suffering accidental bodily injury arising from a
motor vehicle accident which shows evidence of the involvement of a
motor vehicle while an operator or passenger of a motorcycle shall
claim personal protection insurance benefits from insurers in the
following order of priority:
(a) The insurer of the owner or registrant of the motor
vehicle involved in the accident.
(b) The insurer of the operator of the motor vehicle involved
in the accident.
(c) The motor vehicle insurer of the operator of the
motorcycle involved in the accident.
(d) The motor vehicle insurer of the owner or registrant of
the motorcycle involved in the accident.
(6) An injured person claiming personal protection insurance
benefits under subsection (5) is limited to reasonable charges
incurred up to a maximum of $250,000.00 for reasonable necessary
products, services, and accommodations for his or her care,
recovery, or rehabilitation.
(7) (6)
If 2 or more insurers are in the
same order of
priority
to provide personal protection insurance benefits, under
subsection
(5), an insurer paying benefits due
is entitled to
partial recoupment from the other insurers in the same order of
priority, together with a reasonable amount of partial recoupment
of the expense of processing the claim, in order to accomplish
equitable distribution of the loss among all of the insurers.
Sec.
3115. (1) Except as provided in subsection (1) of section
3114
3114(1), a person suffering accidental bodily injury while
not
an occupant of a motor vehicle shall claim personal protection
insurance benefits from insurers in the following order of
priority:
(a) Insurers of owners or registrants of motor vehicles
involved in the accident.
(b) Insurers of operators of motor vehicles involved in the
accident.
(2)
When The following apply
if 2 or more insurers are in the
same order of priority to provide personal protection insurance
benefits:
(a) If the coverages for allowable expenses in the policies
are the same, an insurer paying benefits due is entitled to partial
recoupment from the other insurers in the same order of priority,
together with a reasonable amount of partial recoupment of the
expense of processing the claim, in order to accomplish equitable
distribution of the loss among such insurers.
(b) If the coverages for allowable expenses in the policies
are not the same, each insurer shall pay the ratio of its limit of
allowable expense coverage to the total allowable expense coverage
available under all of the policies.
(3) A limit upon the amount of personal protection insurance
benefits available because of accidental bodily injury to 1 person
arising from 1 motor vehicle accident shall be determined without
regard to the number of policies applicable to the accident.
(4) The limit of personal protection insurance benefits
available for 2 or more motor vehicles under 1 policy or for 2 or
more policies shall not be added together, combined, or stacked to
determine the limit of insurance coverage available for each
injured person covered under the policy.
Sec. 3135. (1) A person remains subject to tort liability for
noneconomic loss caused by his or her ownership, maintenance, or
use of a motor vehicle only if the injured person has suffered
death, serious impairment of body function, or permanent serious
disfigurement.
(2)
For Except as otherwise
provided in this section, for a
cause of action for damages pursuant to subsection (1) filed on or
after July 26, 1996, all of the following apply:
(a) The issues of whether an injured person has suffered
serious impairment of body function or permanent serious
disfigurement are questions of law for the court if the court finds
either of the following:
(i) There is no factual dispute concerning the nature and
extent of the person's injuries.
(ii) There is a factual dispute concerning the nature and
extent of the person's injuries, but the dispute is not material to
the determination as to whether the person has suffered a serious
impairment of body function or permanent serious disfigurement.
However,
for a closed-head injury, a question of fact for the jury
is
created if a licensed allopathic or osteopathic physician who
regularly
diagnoses or treats closed-head injuries testifies under
oath
that there may be a serious neurological injury.
(b) Damages shall be assessed on the basis of comparative
fault, except that damages shall not be assessed in favor of a
party who is more than 50% at fault.
(c) Damages shall not be assessed in favor of a party who was
operating his or her own vehicle at the time the injury occurred
and did not have in effect for that motor vehicle the security
required by section 3101 at the time the injury occurred.
(3) Notwithstanding any other provision of law, tort liability
arising from the ownership, maintenance, or use within this state
of a motor vehicle with respect to which the security required by
section 3101 was in effect is abolished except as to:
(a) Intentionally caused harm to persons or property. Even
though a person knows that harm to persons or property is
substantially certain to be caused by his or her act or omission,
the person does not cause or suffer that harm intentionally if he
or she acts or refrains from acting for the purpose of averting
injury to any person, including himself or herself, or for the
purpose of averting damage to tangible property.
(b) Damages for noneconomic loss as provided and limited in
subsections
(1), and (2), and (7) to (13).
(c) Damages for allowable expenses, work loss, and survivor's
loss
as defined described in sections 3107 to 3110 in excess of the
daily,
monthly, and 3-year limitations
contained in those sections.
The party liable for damages is entitled to an exemption reducing
his or her liability by the amount of taxes that would have been
payable on account of income the injured person would have received
if he or she had not been injured.
(d)
Damages for economic loss by in
excess of the personal
protection insurance benefits provided under section 3107 or, for a
nonresident, in excess of the personal protection insurance
benefits provided under section 3163(4). Damages under this
subdivision are not recoverable to the extent that benefits
covering the same loss are available from other sources, regardless
of the nature or number of benefit sources available and regardless
of the nature or form of the benefits.
(e) Damages up to $500.00 to motor vehicles, to the extent
that the damages are not covered by insurance. An action for
damages pursuant to this subdivision shall be conducted in
compliance with subsection (4).
(4) In an action for damages pursuant to subsection (3)(e):
(a) Damages shall be assessed on the basis of comparative
fault, except that damages shall not be assessed in favor of a
party who is more than 50% at fault.
(b) Liability shall not be a component of residual liability,
as prescribed in section 3131, for which maintenance of security is
required by this act.
(5) Actions under subsection (3)(e) shall be commenced,
whenever legally possible, in the small claims division of the
district court or the municipal court. If the defendant or
plaintiff removes the action to a higher court and does not
prevail, the judge may assess costs.
(6) A decision of a court made pursuant to subsection (3)(e)
is not res judicata in any proceeding to determine any other
liability arising from the same circumstances as gave rise to the
action brought pursuant to subsection (3)(e).
(7) As used in this section, "serious impairment of body
function"
means an objectively manifested impairment of injury that
impairs or impaired an important body function and that affects or
affected the person's general ability to lead his or her normal
life. All of the following apply to serious impairment of body
function:
(a) To establish a serious impairment of body function, the
injured person must satisfy both of the following:
(i) In order for an injury to be objectively manifested, there
must be, or must have been, a medically identifiable injury or
condition that has a physical basis.
(ii) The injury and impairment must have, or must have had, a
meaningful effect on the person's general ability and capacity to
lead his or her normal life.
(b) A person asserting that he or she suffered a serious
impairment of body function is not required to prove that the
injury and impairment were permanent, were extensive, lasted for a
significant period of time, or altered the course and trajectory of
the person's entire normal life, if there is proof that the injury
and impairment otherwise satisfy the requirements of this
subsection.
(8) A person has suffered a serious impairment of body
function as a matter of law if there is no material factual dispute
that the person sustained any of the following injuries as a result
of the accident:
(a) Amputation of an arm, leg, hand, foot, thumb, or index
finger.
(b) A comminuted, dislocated, open, compound, nonunion, or
intra-articular fracture of the pelvis, femur, tibia, or humerus.
(c) Loss of a reproductive organ.
(d) An injury to the spinal cord, a spinal disc, or a vertebra
that required the person to undergo surgery on an inpatient
hospitalization basis.
(e) An injury that required replacement of a joint in a hip,
knee, or shoulder.
(f) Permanent paralysis that affects an important body
function.
(g) Loss or removal of all or part of a vital organ, except
skin.
(9) Except in cases described in subsection (8), the issue of
whether a person suffered a serious impairment of body function as
a result of the accident shall be submitted to a jury or trier of
fact, as a question of fact, if there is evidence that the person
suffered any of the following injuries:
(a) An injury described in subsection (8).
(b) A closed-head injury if a licensed allopathic or
osteopathic physician who regularly diagnoses or treats closed-head
injuries testifies under oath that there may be a serious
neurological injury.
(c) Except as provided in subsection (8)(b), a comminuted,
open, dislocated, compound, nonunion, or intra-articular fracture
of a bone, except a bone in the finger or toe.
(d) Loss of an eye or ear or permanent loss of vision or
hearing in 1 or both eyes or ears.
(e) Permanent damage to the cardiovascular or respiratory
system that impairs the functioning of that system.
(f) An injury that required the person to undergo any of the
following:
(i) If the injury was a traumatic injury to any part of a
shoulder, surgery.
(ii) Except as provided in subsection (8)(b), open reduction of
a fracture with fixation. This subparagraph does not apply to a
fracture in a finger or toe, unless the fracture is located in the
index finger or thumb.
(iii) If the injury is a dislocation injury, reduction or
surgery to an elbow, hip, or knee.
(iv) Except as provided in subsection (8)(d), if the injury is
a herniated or ruptured spinal disc, as diagnosed by a licensed
neurosurgeon or orthopedic surgeon, surgery on an outpatient basis.
As used in this subparagraph, "surgery" does not include
injections.
(10) Except for causes of action based on an injury enumerated
in subsection (8), all of the following factors shall be considered
by a court under subsection (2)(a), or by a jury or trier of fact
if a material factual dispute exists, in determining whether the
injured person suffered a serious impairment of body function:
(a) The nature and extent of the injury and impairment.
(b) The type and duration of treatment required.
(c) The duration of the injury and impairment.
(d) The extent of any residual injury and impairment.
(e) The prognosis for eventual recovery.
(f) The differences between the person's life before and after
the accident that were caused by the injury and impairment.
(g) Any other relevant factors.
(11) The factors stated in subsection (10) are not exclusive,
and no individual factor is dispositive.
(12) The jury or trier of fact shall not consider the
inclusion or exclusion of injuries and treatments enumerated in
subsections (8) and (9) in determining whether the injured person
suffered a serious impairment of body function.
(13) If, under subsection (2) or (9), the jury or trier of
fact is to resolve the question of whether the accident resulted in
a serious impairment of body function, the jury or trier of fact
must find that a serious impairment of body function exists if the
jury or trier of fact finds that the person sustained any of the
injuries described in subsection (8).
(14) The changes to this section by the amendatory act that
added this subsection apply to actions filed on and after and
actions pending in a trial or appellate court on the effective date
of the amendatory act that added this subsection.
Sec.
3157. (1) A Subject
to subsection (2), a physician,
hospital, clinic, or other person or institution lawfully rendering
treatment to an injured person for an accidental bodily injury
covered by personal protection insurance, and a person or
institution providing rehabilitative occupational training
following the injury, may charge a reasonable amount for the
products, services, and accommodations rendered. The charge shall
not exceed the amount the person or institution customarily charges
for like products, services, and accommodations in cases not
involving personal protection insurance.
(2) A physician, hospital, clinic, or other person or
institution lawfully rendering treatment to an injured person for
an accidental bodily injury covered by personal protection
insurance, or a person or institution providing rehabilitative
occupational training following the injury, is limited to, and
shall be paid by the automobile insurer at, an amount that does not
exceed the amount paid for treatment, service, accommodation, and
medicine under R 418.10101 to R 418.101503 of the Michigan
administrative code or schedules of maximum fees for worker's
compensation developed pursuant to those rules. The commissioner
shall examine changes to R 418.10101 to R 418.101503 of the
Michigan administrative code made after the effective date of the
amendatory act that added this subsection. If the commissioner
finds that those changes are reasonable and appropriate for
purposes of automobile insurance, those changes shall apply to this
section and the commissioner shall issue an order to that effect.
Sec. 3163. (1) An insurer authorized to transact automobile
liability insurance and personal and property protection insurance
in this state shall file and maintain a written certification that
any accidental bodily injury or property damage occurring in this
state arising from the ownership, operation, maintenance, or use of
a motor vehicle as a motor vehicle by an out-of-state resident who
is insured under its automobile liability insurance policies, is
subject to the personal and property protection insurance system
under this act.
(2) A nonadmitted insurer may voluntarily file the
certification described in subsection (1).
(3) Except as otherwise provided in subsection (4), if a
certification filed under subsection (1) or (2) applies to
accidental bodily injury or property damage, the insurer and its
insureds with respect to that injury or damage have the rights and
immunities under this act for personal and property protection
insureds, and claimants have the rights and benefits of personal
and property protection insurance claimants, including the right to
receive benefits from the electing insurer as if it were an insurer
of personal and property protection insurance applicable to the
accidental bodily injury or property damage.
(4) If an insurer of an out-of-state resident is required to
provide benefits under subsections (1) to (3) to that out-of-state
resident for accidental bodily injury for an accident in which the
out-of-state resident was not an occupant of a motor vehicle
registered in this state, the insurer is only liable for the amount
of
ultimate loss sustained up to $500,000.00 $250,000.00. Benefits
under this subsection are not recoverable to the extent that
benefits covering the same loss are available from other sources,
regardless of the nature or number of benefit sources available and
regardless of the nature or form of the benefits.
Sec. 3172. (1) A person entitled to claim because of
accidental bodily injury arising out of the ownership, operation,
maintenance, or use of a motor vehicle as a motor vehicle in this
state may obtain personal protection insurance benefits through an
assigned
claims plan if in any of
the following situations:
(a) If no personal protection insurance is applicable to the
injury. ,
(b) If no personal protection insurance applicable to the
injury
can be identified. ,
(c) If the personal protection insurance applicable to the
injury cannot be ascertained because of a dispute between 2 or more
automobile insurers concerning their obligation to provide coverage
or
the equitable distribution of the loss.
, or
(d) If the only identifiable personal protection insurance
applicable to the injury is, because of financial inability of 1 or
more insurers to fulfill their obligations, inadequate to provide
benefits
up to the maximum prescribed. In such case
(2) In any of the situations under subsection (1), unpaid
benefits due or coming due are subject to being collected under the
assigned claims plan, and the insurer to which the claim is
assigned, or the assigned claims facility if the claim is assigned
to it, is entitled to reimbursement from the defaulting insurers to
the extent of their financial responsibility.
(3) (2)
Except as otherwise provided in
this subsection,
personal protection insurance benefits, including benefits arising
from
accidents occurring before the effective date of this
subsection,
March 29, 1985, payable through an assigned claims plan
shall be reduced to the extent that benefits covering the same loss
are available from other sources, regardless of the nature or
number of benefit sources available and regardless of the nature or
form of the benefits, to a person claiming personal protection
insurance benefits through the assigned claims plan. This
subsection
shall only apply when only
applies if the personal
protection insurance benefits are payable through the assigned
claims plan because no personal protection insurance is applicable
to the injury, no personal protection insurance applicable to the
injury can be identified, or the only identifiable personal
protection insurance applicable to the injury is, because of
financial inability of 1 or more insurers to fulfill their
obligations, inadequate to provide benefits up to the maximum
prescribed. As used in this subsection "sources" and "benefit
sources" do not include the program for medical assistance for the
medically
indigent under the social welfare act, Act No. 280 of the
Public
Acts of 1939, being sections 400.1 to 400.121 of the
Michigan
Compiled Laws, or insurance under the health insurance for
the
aged act, title XVIII of the social security amendments of 1965
1939 PA 280, MCL 400.1 to 400.119b, or the federal medicare program
established under title XVIII of the social security act, 42 USC
1395 to 1395kkk-1.
(4) (3)
If the obligation to provide
personal protection
insurance benefits cannot be ascertained because of a dispute
between 2 or more automobile insurers concerning their obligation
to provide coverage or the equitable distribution of the loss, and
if a method of voluntary payment of benefits cannot be agreed upon
among or between the disputing insurers, all of the following shall
apply:
(a) The insurers who are parties to the dispute shall, or the
claimant may, immediately notify the assigned claims facility of
their inability to determine their statutory obligations.
(b) The claim shall be assigned by the assigned claims
facility
to an insurer which that shall immediately provide
personal protection insurance benefits to the claimant or claimants
entitled to benefits in the lowest amount applicable among the
policies in dispute.
(c) An action shall be immediately commenced on behalf of the
assigned claims facility by the insurer to whom the claim is
assigned in circuit court for the purpose of declaring the rights
and duties of any interested party.
(d) The insurer to whom the claim is assigned shall join as
parties defendant each insurer disputing either the obligation to
provide personal protection insurance benefits or the equitable
distribution of the loss among the insurers.
(e) The circuit court shall declare the rights and duties of
any interested party whether or not other relief is sought or could
be granted.
(f) After hearing the action, the circuit court shall
determine the insurer or insurers, if any, obligated to provide the
applicable personal protection insurance benefits and the equitable
distribution, if any, among the insurers obligated therefor, and
shall order reimbursement to the assigned claims facility from the
insurer or insurers to the extent of the responsibility as
determined
by the court. The reimbursement ordered under this
subdivision
shall include all benefits and costs paid or incurred
by
the assigned claims facility and all benefits and costs paid or
incurred
by insurers determined not to be obligated to provide
applicable
personal protection insurance benefits, including
reasonable
attorney fees and interest at the rate prescribed in
section
3175 as of December 31 of the year preceding the
determination
of the circuit court.
(5) If no personal protection insurance is applicable to the
injury or no personal protection insurance applicable to the injury
can be identified, personal protection insurance benefits shall be
paid only to the limit provided for in section 3107(1)(a)(i). If the
only identifiable personal protection insurance applicable to the
injury is, because of financial inability of 1 or more insurers to
fulfill their obligations, inadequate to provide benefits up to the
maximum prescribed, personal protection insurance benefits shall be
paid to the limit selected by the insured under section 3107(1)(a)
or as provided in section 3107(3)(a).
(6) Any reimbursement ordered under this section and any
recovery obtained in circumstances where personal protection
insurance benefits have been or may be paid through the assigned
claims facility shall include all benefits and costs paid or
incurred by insurers determined not to be obligated to provide the
applicable personal protection insurance benefits, including
reasonable attorney fees and interest at the rate prescribed in
section 3175 as of December 31 of the year preceding the
reimbursement order or recovery determination.
Sec. 3178. (1) The commissioner shall develop and make
available to the public 1 or more informational pamphlets
explaining the substance of the changes to this chapter made by the
amendatory act that added this section. The pamphlet shall include
in particular, but not be limited to, an explanation of the
adoption of multiple limits for personal protection benefits under
section 3107(1)(a), the ability of an insured to choose the
applicable limit, when the insured will have the opportunity to
make the choice and when the choice made will be effective, and the
consequences of that choice.
(2) Before July 1, 2013, the commissioner shall report to the
standing committees of the senate and the house of representatives
with primary jurisdiction over insurance matters on the effect of
the changes to this chapter made by the amendatory act that added
this section, including in particular, but not limited to, the
adoption of multiple limits for personal protection benefits under
section 3107(1)(a). The report shall contain any recommendations of
the commissioner for changes to this chapter.
(3) For the fiscal year ending September 30, 2012, $50,000.00
is appropriated from the general fund to the department of
licensing and regulatory affairs to be used by the office of
insurance and financial services to implement this section.
Enacting section 1. (1) Sections 3101, 3104, 3107, 3114, 3115,
3163, and 3172 of the insurance code of 1956, 1956 PA 218, MCL
500.3101, 500.3104, 500.3107, 500.3114, 500.3115, 500.3163, and
500.3172, as amended by this amendatory act, and section 1245 of
the insurance code of 1956, 1956 PA 218, as added by this
amendatory act, take effect on July 1, 2012.
(2) Section 3157 of the insurance code of 1956, 1956 PA 218,
MCL 500.3157, as amended by this amendatory act, and section 3107c
of the insurance code of 1956, 1956 PA 218, as added by this
amendatory act, take effect on the effective date of this
amendatory act and apply to products, services, and accommodations
that are provided on and after the effective date of this
amendatory act irrespective of the date of loss, but do not affect
any obligation involving a specific claim under a written agreement
or consent judgment entered into before the effective date of this
amendatory act.
(3) Section 3135 of the insurance code of 1956, 1956 PA 218,
MCL 500.3135, as amended by this amendatory act, takes effect on
the effective date of this amendatory act.
