COA 368812 BRONSON HEALTHCARE GROUP INC V CONIFER INSURANCE COMPANY Opinion - Authored - Published 2/2/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
BRONSON HEALTHCARE GROUP, INC.,
Plaintiff-Appellee,
FOR PUBLICATION
February 02, 2026
11:44 AM
v No. 368812
Kalamazoo Circuit Court
CONIFER INSURANCE COMPANY, LC No. 2020-000203-NO
Defendant-Appellant.
BRONSON HEALTHCARE GROUP, INC.,
Plaintiff-Appellant,
v No. 368816
Kalamazoo Circuit Court
CONIFER INSURANCE COMPANY, LC No. 2020-000203-NO
Defendant-Appellee.
Before: SWARTZLE, P.J., and GARRETT and YATES, JJ.
SWARTZLE, P.J.
When a workmen’s compensation insurer does not pay a medical provider for services
rendered because there is a dispute over coverage, and Medicare makes a conditional payment
under the Medicare Secondary Payer Act (MSPA), 42 USC 1395y et seq., does the provider have
a private cause of action for double damages under the MSPA? As explained, as long as the insurer
has a good-faith ground for disputing coverage, the service provider does not have a viable cause
of action unless and until it is demonstrated that the insurer has a responsibility to pay but fails to
do so in a timely manner consistent with the MSPA. The trial court erred in granting summary
disposition to plaintiff Bronson Healthcare Group, Inc., and, for the reasons stated here, we vacate
and remand with instructions to the trial court to dismiss without prejudice.

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I. BACKGROUND
Defendant, Conifer Insurance Company, provided workmen’s compensation insurance to
the Fraternal Order of Eagles, Aerie #299, located in Battle Creek, Michigan. On June 14, 2017,
Linda Roach fell and injured her hip while bartending at the Eagles. Bronson Healthcare billed
Conifer for Roach’s medical expenses, but Conifer denied the claim on the basis that Roach was a
volunteer and not an employee covered under the plan. Medicare conditionally paid for Roach’s
medical expenses.
With respect to Roach’s employment status, although there was no question that she had
been an employee, Roach had not received a paycheck since April 2017. She and the
establishment’s manager talked about her going to “volunteer status,” and there was evidence that,
at the time of the incident, she was considered to be a volunteer. Roach subsequently filed a
workmen’s compensation claim against Conifer, claiming that she was, in fact, an employee, and
Bronson Healthcare intervened.
While the workmen’s compensation proceedings were pending, Bronson Healthcare
brought a private cause of action against Conifer under the MSPA. Bronson Healthcare initially
moved for partial summary disposition on the issue of damages. The trial court partially granted
the motion, stating that, in the event that Bronson Healthcare established Conifer’s obligation to
pay for Roach’s medical expenses, Bronson Healthcare would be entitled to double damages under
the MSPA.
Months later, the workmen’s compensation magistrate issued a written opinion finding that
Roach was an employee at the time of her injury, she was injured in the course of her employment,
and the medical care that she received was reasonable and necessary. Therefore, the magistrate
found that Conifer was responsible for covering her medical expenses and responsible for repaying
Medicare. Conifer appealed that administrative decision, and at the time of oral argument in the
instant appeals, no decision had yet been rendered by the agency.
While the workers’ compensation appeal was pending, the parties filed cross-motions for
summary disposition under MCR 2.116(C)(10). Bronson Healthcare argued that the workmen’s
compensation decision resolved the only open issue in the case—whether Roach was an employee
when she was injured—and that collateral estoppel precluded defendant from relitigating the issue.
Bronson Healthcare argued that because Roach was an employee covered by Conifer’s policy, the
insurer violated the MSPA by failing to pay for Roach’s medical expenses, entitling Bronson
Healthcare to double damages.
Conifer rejected this and argued, as it had done throughout the litigation, that Roach was
not an employee at the time of her injury. The insurer recognized that the workmen’s
compensation magistrate reached a different decision, but it stated that it was not aware of any
caselaw making that decision binding on the trial court and requested a stay pending the
administrative appeal.
The trial court held a hearing on the parties’ motions, and at the conclusion of the hearing,
the trial court denied Conifer’s request for a stay and granted Bronson Healthcare’s motion for
summary disposition. With regard to the damages and interest owed, the trial court ordered that

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interest run from the date of the workmen’s compensation decision and that the damages be offset
by the award in the workmen’s compensation proceedings.
The parties appealed. In Docket No. 368812, Conifer argues that (1) the trial court erred
by granting summary disposition to Bronson Healthcare because the provider had not
demonstrated the insurer’s responsibility to reimburse Medicare or that the insurer had failed to
reimburse Medicare within the meaning of the MSPA; and (2) the trial court erred by finding that
Conifer was collaterally estopped by the workmen’s compensation magistrate’s order, which had
been appealed and did not address the issue of statutory damages under the MSPA. In Docket
No. 368816, Bronson Healthcare argues that (1) the trial court erred by ordering that the
calculation of prejudgment interest occur from the date of the workmen’s compensation
magistrate’s order, rather than the date the complaint was filed; and (2) the trial court erred by
offsetting the damages on the basis of the award in the workmen’s compensation proceedings.
The matters were consolidated on appeal, Bronson Healthcare Group, Inc v Conifer Ins
Co, unpublished order of the Court of Appeals, entered January 2, 2024 (Docket Nos. 368812 and
368816), oral argument was held, and the matters are now ripe for decision.
II. ANALYSIS
Conifer primarily argues on appeal that the trial court erred by granting summary
disposition to Bronson Healthcare because, when the provider filed suit, it had not yet been
demonstrated that Conifer was responsible for payment. Conifer maintains that, when Bronson
Healthcare sued the insurer, there was, at minimum, a good-faith question whether Roach was
covered under the policy as an “employee” of the Fraternal Order of Eagles when she was injured.
Given this, according to Conifer, any requirement that it cover Roach’s medical bills would not
have arisen until and unless a court or administrative agency determined that she was, in fact, an
employee and not a volunteer.1 As explained below, defendant’s position has merit.
A. STANDARD OF REVIEW
Plaintiff brought its motion under MCR 2.116(C)(10), as did defendant. “We review de
novo a trial court’s decision to grant or deny a motion for summary disposition.” Sherman v City
of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020). “When deciding a motion for
summary disposition under MCR 2.116(C)(10), we consider the evidence submitted in a light most
favorable to the nonmoving party.” Payne v Payne, 338 Mich App 265, 274; 979 NW2d 706
(2021). Summary disposition is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Id.
1 Bronson Healthcare argues that Conifer waived this argument by not raising it below.
Throughout the proceedings below, Conifer argued it had no obligation to pay Roach’s medical
expenses; put another way, that any responsibility it had to pay had not been demonstrated. Parties
are generally free to argue a point in a more sophisticated way on appeal, as long as the point is
not novel. Glasker-Davis v Auvenshine, 333 Mich App 222, 228; 964 NW2d 809 (2020). We
conclude that Conifer did not waive or forfeit this issue, and we address its merits here.

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To the extent that resolution of these issues requires interpretation and application of
statutes, statutory interpretation is a question of law, which we review de novo. Sherman, 332
Mich App at 632. Our Legislature and Congress are “presumed to intend the meaning clearly
expressed, and this Court must give effect to the plain, ordinary, or generally accepted meaning”
of a statute’s terms. D’Agostini Land Co LLC v Dep’t of Treasury, 322 Mich App 545, 554; 912
NW2d 593 (2018). “A statutory provision is ambiguous only if it irreconcilably conflicts with
another provision, or when it is equally susceptible to more than a single meaning.” Id. (internal
quotation marks omitted). “Only when ambiguity exists does the Court turn to common canons
of construction for aid in construing a statute’s meaning.” Id. at 554-555.
B. OVERVIEW OF THE MSPA
“Medicare is a federal health insurance program that provides health insurance benefits to
people 65 years of age or older, disabled people, and people with end-stage renal disease.” Stalley
v Methodist Healthcare, 517 F3d 911, 915 (CA 6, 2008). Before 1980, “Medicare paid for all
medical treatment within its scope and left private insurers merely to pick up whatever expenses
remained.” Bio-Medical Applications of Tenn, Inc v Central States Southeast & Southwest Areas
Health & Welfare Fund, 656 F3d 277, 278 (CA 6, 2011). In 1980, “to curb the rising costs of
Medicare, Congress enacted the Medicare Secondary Payer Act, which flipped the payment order,
such that private insurers became the primary payers and Medicare became (as the Act’s name
indicates) the secondary payer.” MSPA Claims 1, LLC v Kingsway Amigo Ins Co, 950 F3d 764,
767 (CA 11, 2020) (cleaned up).
To understand the dispute, it will be helpful to explore several provisions of 42 USC
1395y(b) of the MSPA:
 Paragraph (1), “Requirements of group health plans”: Generally speaking, this
provision prohibits group health plans from considering a covered individual’s
entitlement to certain Medicare benefits. This provision is not at issue here.
 Paragraph (2), “Medicare secondary payer”: This provision sets forth the
circumstances under which Medicare will be a secondary payer, i.e., the payer
next in priority after a primary payer. In relevant part, the paragraph reads as
follows:
(A) In general
Payment under this subchapter may not be made, except as provided in
subparagraph (B), with respect to any item or service to the extent that—
(i) payment has been made, or can reasonably be expected to be made,
with respect to the item or service as required under subparagraph
(1), or
(ii) payment has been made or can reasonably be expected to be made
under a worker’s compensation law or plan . . . .

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In this subsection, the term “primary plan” [includes] . . . a
workmen’s compensation law or plan. . . .
(B) Conditional payment
(i) Authority to make conditional payment
The Secretary may make payment under this subchapter with
respect to an item or service if a primary plan described in
subparagraph (A)(ii) has not made or cannot reasonably be expected
to make payment with respect to such item or service promptly (as
determined in accordance with regulations). Any such payment by
the Secretary shall be conditioned on reimbursement to the
appropriate Trust Fund in accordance with the succeeding
provisions of this subsection.
(ii) Repayment required
Subject to paragraph (9), a primary plan . . . shall reimburse the
appropriate Trust Fund for any payment made by the Secretary
under this subchapter with respect to an item or service if it is
demonstrated that such primary plan has or had a responsibility to
make payment with respect to such item or service. A primary
plan’s responsibility for such payment may be demonstrated by a
judgment, a payment conditioned upon the recipient’s compromise,
waiver, or release (whether or not there is a determination or
admission of liability) of payment for items or services included in
a claim against the primary plan or the primary plan’s insured, or by
other means. . . .
(iii) Action by United States
In order to recover payment made under this subchapter for an item
or service, the United States may being an action against any or all
entities that are or were required or responsible . . . to make payment
. . . .
 Paragraph (3), “Enforcement”: This provision creates a private right of action
for double damages against a primary plan. In relevant part, the provision reads:
(A) Private cause of action
There is established a private cause of action for damages (which shall be
in an amount double the amount otherwise provided) in the case of a
primary plan which fails to provide for the primary payment (or appropriate
reimbursement) in accordance with paragraphs (1) and (2)(A).

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To summarize, as applicable here, when a workmen’s compensation plan has made or is
reasonably expected to make a payment for covered medical services, the MSPA prohibits
Medicare from making a payment (subparagraph (2)(A)(ii)). This furthers the act’s objective of
making Medicare a secondary payer. The exception to this is when the workmen’s compensation
plan has not made or is not reasonably expected to make a timely payment; in that circumstance,
Medicare can come in and make a conditional payment for the services (subparagraph (2)(B)(i)).
To recover its conditional payment, the federal government can bring an action against the
workmen’s compensation plan (subparagraph (2)(B)(iii)). Alternatively, a private entity, such as
the medical provider, can bring a private cause of action against the plan when the plan fails to
make payment “in accordance with paragraphs (1) and (2)(A)” (subparagraph (3)(A)). In doing
so, the private entity can seek double damages (subparagraph (3)(A)).
C. PRIVATE CAUSE OF ACTION AND
DEMONSTRATION OF RESPONSIBILITY TO PAY
The dispute here centers on whether the “demonstrated . . . responsibility” provision of
subparagraph (2)(B)(ii) applies to a private cause of action brought by a medical provider against
a workmen’s compensation insurer, when there exists a good-faith dispute about coverage. To put
it another way: When there is a good-faith dispute about coverage, does there have to be some
kind of demonstration (via judgment or other means) that a workmen’s compensation plan actually
covered the injured person before a medical provider can bring a viable cause of action against the
plan for double damages under subparagraph (3)? If yes, then Bronson Healthcare was premature
in suing Conifer and its lawsuit against the insurer should be dismissed without prejudice; if no,
then Bronson Healthcare can proceed with its lawsuit.
Notably, neither party provides caselaw addressing MSPA actions in the workmen’s
compensation context, and we have found few such cases. Of these few cases, most were filed
after the conclusion of workmen’s compensation proceedings (i.e., there was a “demonstration” of
responsibility to pay before the lawsuit was filed), and so have little relevance here. See, e.g.,
Manning v Utilities Mut Ins Co, Inc, 254 F3d 387, 390-391 (CA 2, 2001); Estate of McDonald v
Indemnity Ins Co of North America, 107 F Supp 3d 764, 765-766 (WD Ky, 2014). In the one case
in which the workmen’s compensation proceedings had not concluded when the lawsuit was filed,
the trial court found that it did not have jurisdiction to hear the case until the administrative body
with exclusive jurisdiction over claims involving workmen’s compensation made its
determination. Fisher v Clarendon Nat Ins Co, unpublished opinion of the United States District
Court for the Western District of Missouri, issued January 18, 2008 (Case No. 07-04092-CV-C-
NKL), p 3.
Stepping back for a broader view, courts disagree about whether the demonstrated-
responsibility provision is a condition precedent to a private right of action under the MSPA,
Glover v Ligget, 459 F3d 1304, 1309 (CA 11, 2006), or is solely applicable to an action brought
against a tortfeasor, Bio-Medical, 656 F3d at 292. The U.S. Supreme Court has not ruled on this
question of federal law (which would bind all courts), nor has our Supreme Court ruled on it (which
would bind lower Michigan courts). Although the U.S. Court of Appeals for the Sixth Circuit
geographically covers Michigan (along with Ohio, Kentucky, and Tennessee), and that court has
resolved the question in a published decision, see Bio-Medical, 656 F3d at 292, this Court is not

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obligated to follow decisions of lower federal courts, Dobronski v Transamerica Life Ins Co, 347
Mich App 92, 102; 13 NW3d 895 (2023). “With that said, as with any nonbinding caselaw, we
can consider the decisions of lower federal courts for their persuasive value, if any.” Id. (cleaned
up).
Bronson Healthcare asks this Court to follow the decision of the Sixth Circuit in Bio-
Medical and conclude that the demonstrated-responsibility provision does not apply to this
coverage dispute. In Bio-Medical, a patient had been diagnosed with end-stage renal disease and
began receiving dialysis treatment from the plaintiff medical provider. The defendant in the case
was the patient’s health insurer. As soon as the patient became entitled to Medicare benefits, the
defendant health insurer ceased coverage per an express condition in its plan: “Coverage under
this Plan shall terminate on the earliest of the following dates: . . . (b) the date [the insured] first
becomes entitled to Medicare benefits.” Bio-Medical, 656 F3d at 280. This contract provision
was in direct contradiction to the Medicare statute. Id. at 283 (citing 42 USC 1395y(b)(1)(C)(i)).
Medicare stepped in and made a conditional payment, but the payment was purportedly
less than what the plaintiff medical provider would have received from the defendant health
insurer. The plaintiff medical provider sued the defendant, asserting a private cause of action for
double damages under the MSPA. The defendant health insurer argued, similar to Conifer in the
instant case, that a health insurer’s responsibility to pay must be “demonstrated” before a medical
provider can bring a viable claim against that insurer under the MSPA, and that no such
demonstration had occurred yet. Id. at 281, 287.
The Bio-Medical court rejected the defendant health insurer’s position. The court began
its statutory analysis by asking, “When does a primary plan fail to make payment ‘in accordance
with paragraphs (1) and (2)(A)’?” Id. at 285 (quoting 42 USC 1395y(b)(3)(A)). (Recall that this
is the triggering event, the condition precedent, to bring a private cause of action in the first place.)
“Determining when a primary plan violates paragraph (1) is easy,” according to the Bio-Medical
court, id., though it was not relevant to the parties’ dispute in that case (or the instant case).
Moving to subparagraph (2)(A), the Bio-Medical court read that provision to apply solely
to Medicare, i.e., Medicare may make a conditional payment under certain circumstances. Id. at
285-286. The provision had little relevance to primary plans, according to the court. Id. at 286.
Read in this way, the court concluded,
[A] primary plan fails to pay “in accordance with paragraphs (1) and (2)(A)” when
it terminates a planholder’s coverage and thereby induces Medicare to make a
conditional payment on its behalf—that is, when the primary plan violates the
statutory system that these two paragraphs set into motion. Put differently, a
primary plan is liable under the private cause of action when it discriminates against
planholders on the basis of their Medicare eligibility and therefore causes Medicare
to step in and (temporarily) foot the bill. [Id.]
Under this reading, there was no specific requirement that a primary plan’s responsibility be
“demonstrated” by some separate action or otherwise; it was sufficient alone to look at the
“insurance contract (where insurers assume the responsibility of paying for enumerated
contingencies ex ante).” Id. at 291.

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One problem with this interpretation, however, is that subparagraph (2)(A) expressly
restricts Medicare from making any payment “except as provided in subparagraph (2)(B),” the
very subparagraph that provides for conditional payments by Medicare. And it is in subparagraph
(2)(B) where Congress set forth the requirement of a primary plan to reimburse Medicare for a
conditional payment, as long as it has been “demonstrated” that the primary plan “had a
responsibility” for payment in the first place. 42 USC 1395y(b)(2)(B)(ii). It appears, in other
words, that when Congress created the private cause of action in subparagraph (3), and explicitly
conditioned that cause of action on when “a primary plan . . . fails to provide for primary payment
(or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A),” 42 USC
1395y(b)(3), it also conditioned that cause of action on the requirements of subparagraph (2)(B),
including the “demonstration” requirement of subparagraph (2)(B)(ii), 42 USC 1395y(b)(2)(B)(ii).
On this reading, before the plaintiff in Bio-Medical could have brought a private cause of action
for double damages against the defendant insurer, there would have had to have been some
“demonstration” that the insurer was responsible for payment before the action could be brought
against it.
The Bio-Medical court rejected this interpretation of the MSPA. In doing so, the court
eschewed a plain reading of the text and relied instead on legislative history and its understanding
of the purpose of the “demonstrated responsibility” provision. Specifically, the court noted that
the “demonstrated responsibility” provision of subparagraph (2)(B)(ii) was added by Congress
after a series of court cases held that the MSPA did not apply to tortfeasors, which in effect shielded
certain wrongdoers (including tobacco companies) from Medicare reimbursement and private
causes of action. Id. at 289-290. The court did recognize that “the text of that provision is
addressed to all ‘primary plans’—the Act’s broadest category of private insurer,” id. at 290, and
this would presumably cover not only the tortfeasor added to the MSPA by the earlier amendment,
but also, much more plainly, a group health plan (like the Bio-Medical defendant) or a workmen’s
compensation plan (like defendant here). But, based on the “context of [the provision’s]
inclusion”—i.e., the legislative history and policy—the court concluded “that Congress intended
it only as a condition precedent to tortfeasor liability.” Id.
The Bio-Medical court too readily swept past the actual text of the MSPA. The
fundamental mistake that court made in reading the MSPA was to conclude that Congress drafted
subparagraph (2)(A) with only Medicare in mind. It is true that subparagraph (2)(A) is directed to
Medicare, but it is equally true that the subparagraph is also directed, implicitly and explicitly, to
covered primary plans, including group health plans and workmen’s compensation plans. First,
implicitly, paragraph (2) sets forth the conditions under which Medicare is a “secondary payer,”
which necessarily means that there must be a primary payer. Paragraph (2) makes no semantic
sense unless one understands that some entity—a group insurance plan, a self-insured plan, a
tortfeasor—must be the primary payer.
Second, explicitly, subparagraph (2)(A) recognizes that a primary plan, like a group health
plan or workmen’s compensation plan, might well have already made, or “can reasonably be
expected” to make, payment on behalf of an insured. 42 USC 1395y(b)(2)(A)(ii). In that case,
Medicare is prohibited from making any payment to the medical provider “except as provided in
subparagraph (B).” 42 USC 1395y(b)(2)(A). And what does subparagraph (B) provide? The
authority for Medicare to make a conditional payment, 42 USC 1395y(b)(2)(B)(i), and the right to
recoup such conditional payment from a primary plan only when “it is demonstrated that such
primary plan has or had responsibility to make payment” in that circumstance, 42 USC
1395y(b)(2)(B)(ii).

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Third, and again explicitly, this recognition in subparagraph (2) of a primary plan’s duty
to pay is further recognized and reinforced in paragraph (3), the private cause of action. In that
provision, Congress again recognized that a primary plan is supposed “to provide for primary
payment (or appropriate reimbursement) in accordance with paragraphs (1) and (2)(A),” and when
it does not, the medical provider will have a private cause of action against that plan. 42 USC
1395y(b)(3) (emphasis added). Thus, Congress made it quite clear that subparagraph (2)(A) does,
contrary to the Bio-Medical court’s reading, relate to the duties of a primary plan, in that the
primary plan has a duty to be the primary payer, with Medicare as the secondary one.
Thus, there is no ambiguity in the text when it comes to reading the private-cause-of-action
provision of the MSPA in a case like the instant one. There is a private cause of action for double
damages when a “primary plan” (like a workmen’s compensation plan) does not make a primary
payment or make a reimbursement “in accordance with paragraphs (1) and (2)(A).” Paragraph (1)
is not applicable here; to pay “in accordance with” subparagraph (2)(A) means to pay or reasonably
be expected to pay in accordance with the plan’s terms and conditions and applicable law, subject
to the provisions of subparagraph (2)(B). And subparagraph (2)(B) provides that Medicare can
make a conditional payment and, if it is shown that a primary plan is responsible for payment, then
that primary plan must reimburse Medicare. Unless and until there is a “demonstration” of the
primary plan’s responsibility to pay, the condition precedent of failing to pay “in accordance with”
subparagraph (2)(A) has not been met.
Our reading is consistent with other federal case law interpreting the MSPA’s private cause
of action, both in the tort context and, like here, the insurance-coverage context. In the context of
a tort action, the United States Court of Appeals for the Eleventh Circuit concluded “that an alleged
tortfeasor’s responsibility for payment of a Medicare beneficiary’s medical costs must be
demonstrated before an [MSPA] private cause of action for failure to reimburse Medicare can
correctly be brought under section 1395y(b)(3)(A).” Glover, 459 F3d at 1309. The Glover court’s
analysis focused on the text of the MSPA, reasoning as follows:
We begin our analysis by closely examining the text of section 1395y(b)(3),
which creates a private cause of action for double damages “in the case of a primary
plan which fails to provide for primary payment (or appropriate reimbursement) in
accordance with . . . (2)(A).” Paragraph (2)(A) prohibits Medicare from paying for
items or services for which payment can reasonably be expected to be made under
a primary plan “except as provided in subparagraph (B).” Subparagraph (B)
authorizes Medicare to make conditional payments, but requires that “[a] primary
plan, and any entity that receives payment from a primary plan, shall reimburse
[Medicare] with respect to an item or service if it is demonstrated that such primary
plan has or had a responsibility to make payment with respect to such item or
service.” 42 USC 1395y(b)(2)(A) & (b)(2)(B)(ii) (emphasis added). [Id. at 1308-
1309 (alterations in original).]
Accordingly, the Glover court concluded that demonstrating responsibility is a condition precedent
to a defendant’s obligation to reimburse Medicare and a private cause of action. Id. at 1309. Until
“responsibility to pay for a Medicare beneficiary’s expenses has been demonstrated (for example,
by a judgment), [the] obligation to reimburse Medicare does not exist,” and therefore, it cannot be
said that a defendant has failed to reimburse Medicare. Id.
In the insurance-coverage context, the United States Court of Appeals for the Ninth Circuit
has similarly interpreted the MSPA’s private cause of action. In DaVita Inc v Virginia Mason

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Memorial Hosp, 981 F3d 679 (CA 9, 2020), the court considered whether Medicare conditional
payment was a prerequisite to a provider bringing a private action. In answering this question, the
court had to consider a penultimate question, the same one addressed here and in Bio-Medical,
namely, does subparagraph (2)(A) apply solely to Medicare or to both Medicare and primary
plans? The DaVita court pointedly rejected the Bio-Medical court’s reading: “[S]ubparagraph
(2)(A) assigns secondary-payer status to Medicare and therefore necessarily assigns primary-payer
status to the private insurer. . . . [T]he functional effect of subparagraph (2)(A) on a private insurer
is to require the private insurer to be the primary payer.” Id. at 688; see also id. at 689-691. The
court then considered what its plain reading of the text would mean in the context of a private
cause of action involving a coverage dispute:
Specifically, our reading does not convert ordinary billing disputes into [MSPA]
claims giving rise to double damages. If a plan denies payment for any reason other
than those reasons forbidden by paragraphs (1) and (2)(A), then no [MSPA] claim
is available. For example, no [MSPA] claim would be available if the insurer
declines to pay because of a good faith assertion4 that the beneficiary has reached
the plan’s maximum payments, that the claim is fraudulent, that the beneficiary
failed to obtain preapproval for a service, that the beneficiary’s coverage had
expired, and so on. Those disputes would require resolution through ordinary
ERISA channels or state-law contract claims. An [MSPA] claim, and its allowance
of double damages, would be available only if the plan declined to pay for a reason
forbidden by either paragraph (1) or (2)(A).
* * *
4 A bad-faith assertion might require a different result. If a plan raised a bad-faith
defense to mask its violation of the [MSPA] provisions, an [MSPA] action might
be valid. Of course, the plaintiff would have the burden to show that the real reason
for the denial was one of the [MSPA]-forbidden grounds. [Id. at 692 (citation
omitted).]
This reading of the private-cause-of-action provision in the MSPA accords with our own.
Although the MSPA has been described as “convoluted and torturous,” Michigan Spine &
Brain Surgeons, PLLC v Esurance Prop & Casualty Ins Co, 758 F3d 787, 791 (CA 6, 2014)
(cleaned up), the demonstrated-responsibility provision is relatively clear and unambiguous, as
explained in Glover, 459 F3d at 1309. The private cause of action arises “in the case of a primary
plan which fails to provide for primary payment (or appropriate reimbursement) in accordance
with . . . (2)(A).” 42 USC 1395y(b)(3). Subparagraph (2)(A) prohibits Medicare from paying for
services that a primary plan is obligated to pay “except as provided in subparagraph (B).” And
subparagraph (B) allows Medicare to make conditional payments and expressly states that
reimbursement to Medicare is required “if it is demonstrated that such primary plan has or had a
responsibility to make payment with respect to such item or service.” 42 USC 1395y(b)(2)(B)(ii)
(emphasis added). Thus, we agree with the Glover court that the demonstrated-responsibility
provision is a condition precedent to an action under the MSPA.
Likewise, we similarly agree with the DaVita court that an ordinary, good-faith billing
dispute does not give rise to a private cause of action for double damages under the MSPA. When

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there is no question that a primary plan covers a particular person, service, or item, then the
demonstration of subparagraph (2)(B) is accomplished by reference to the plan documents and the
law. See, e.g., MSP Recovery, LLC v Allstate Ins Co, 835 F3d 1351, 1361 (CA 11, 2016) (holding
that “a contractual obligation may serve as sufficient demonstration of responsibility for payment
to satisfy the condition precedent to suit under” the MSPA); 42 CFR 411.22(b)(3) (noting that
responsibility for payment can be demonstrated by a “contractual obligation”). But when there is
a good-faith question about coverage, something more is needed to demonstrate that a primary
plan is responsible to pay, such as a “judgment,” a “waiver”, or some “other means.” 42 USC
1395y(b)(2)(B)(ii). Based on the record before this Court, there is no genuine issue of material
fact that Conifer had a good-faith basis for disputing coverage; thus, something more than mere
reference to the plan documents and law was needed to demonstrate that Conifer was, in fact,
responsible for payments related to Roach’s care.
Beyond a plain reading of the statute, we further recognize that a contrary holding would
have several distorting effects in cases like this one. To hold otherwise would, for example,
prohibit a workmen’s compensation insurer like Conifer from ever contesting liability without
risking the penalty of double damages. Further, to allow an MSPA action before conclusion of the
workmen’s compensation proceedings presents procedural problems that have been highlighted
by this litigation, such as the trial court being presented with a factual issue that is in the province
of the administrative tribunal and the possibility of an insurer being ordered, in effect, to pay treble
damages. In this case, the trial court grappled with both of these issues, noting the possibility of
inconsistent judgments and the apparent unfairness of treble damages.
To be clear, neither the plain text of the MSPA nor our holding today should be read to
give carte blanche to a workmen’s compensation insurer or other primary payer to deny payment
when the law or the plan’s own terms and conditions plainly provide coverage. As the DaVita
court recognized, and we reiterate today, a denial of coverage made in bad faith will not shield a
primary payer from a double-damages lawsuit under the MSPA.
Although an initial decision in the workmen’s compensation proceedings has now arguably
demonstrated Conifer’s responsibility for Roach’s medical care, Bronson Healthcare has not
demonstrated that Conifer failed to reimburse Medicare within the meaning of the MSPA, and the
trial court erred by granting summary disposition in favor of the medical provider. Because
Bronson Healthcare filed this litigation prematurely, Conifer had no real opportunity to reimburse
Medicare. At the very least, Conifer should be given that opportunity, as other workmen’s
compensation insurers have been. See Manning, 254 F3d at 390-391; Estate of McDonald, 107 F
Supp 3d at 765-766.
D. REMAINING ISSUES
Conifer also argues on appeal that the trial court erred by granting summary disposition on
the basis of collateral estoppel when the workmen’s compensation decision had been appealed and
when the magistrate’s decision did not resolve the issue of statutory damages under the MSPA. In
the trial court, Conifer did not address the issue of collateral estoppel in its briefing. In fact, at the
hearing, Conifer conceded to the authority cited by Bronson Healthcare and arguably waived the
collateral-estoppel issue. See Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, 347
Mich App 280, 289; 14 NW3d 472 (2023). Regardless, as discussed earlier, this MSPA action

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was filed prematurely. Further, Conifer correctly points out that the workmen’s compensation
decision did not resolve the issue of statutory damages under the MSPA.
Our conclusion that the trial court erred by granting summary disposition and that the case
should be dismissed renders the other issues presented in these consolidated appeals not ripe for
review. See People v Warner, 514 Mich 41, 62-63; 22 NW3d 1 (2024). The issues raised in
Bronson Healthcare’s appeal with regard to prejudgment interest and the offsetting of damages
have arisen precisely because the medical provider prematurely brought a claim under the MSPA
and the insurer had no opportunity to reimburse Medicare when its responsibility to do so was
established.
III. CONCLUSION
The trial court erred by granting summary disposition in favor of Bronson Healthcare. We
vacate the trial court’s order and remand with instructions to the trial court to dismiss this matter
without prejudice. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Kristina Robinson Garrett
/s/ Christopher P. Yates

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