Judge Scott Fairgrieve
Provider sued to recover no-fault benefits for medical services provided to its assignor arising from a car accident. An arbitration was held and the arbitrator found in plaintiff’s favor. Insurer demanded a trial de novo, and the court, after trial, found in plaintiff’s favor. Judgment for $7,784.06 was entered, and insurer moved for, among other things, modification of the judgment to reflect that the policy of insurance was exhausted and claimant was owed nothing more. Insurer’s claim representative asserted insurer already paid out more than what was owed claimant under the policy. Insurer’s counsel contended an insurance company was not required to pay no-fault benefits beyond the policy limit even if the issue was raised after judgment was entered. The court stated insurer pleaded the affirmative defense of exhaustion of the policy limits in its answer, proceeded to trial, but failed to raise or present evidence of such defense despite being aware for over three years before trial of same, and having the opportunity to do so. The court also noted the policy limits were exhausted months before insurer’s service of its answer, stating showing the limits were exhausted was not a requisite part of plaintiff’s case, but on insurer to plead and prove. Thus, insurer’s motion was denied.