Michigan Court of Appeals; Docket #344385; Unpublished
Judges Redford, Jansen, and Letica; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Replacement Service Expense Benefits: Nature of the Benefit (§3107)(1)(c))
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing the plaintiff’s first-party action to recover no-fault PIP benefits, and remanded for further proceedings. At the time the defendant, State Auto Property & Casualty Insurance Company, filed its motion for summary disposition, the plaintiff, Ronald McPhilmy, had not yet submitted sufficient documentation to support his claim for various no-fault PIP benefits. The Court of Appeals determined that the trial court erred by granting State Auto’s motion at that juncture because the burden had merely shifted to McPhilmy to establish a genuine issue of material fact, which he subsequently did by attaching documentation to support his claims in response to the defendant’s motion.
Ronald McPhilmy was injured in a motor vehicle collision and brought this action against State Auto seeking unpaid medical expenses, replacement services benefits, and work loss benefits. Throughout the trial court proceedings, State Auto requested McPhilmy’s medical bills and documentation to support his work loss claim, which McPhilmy did not produce until the close of discovery, in response to the defendant’s motion for summary disposition. The trial court granted State Auto’s motion
concluding that no evidence of work loss was produced, as plaintiff’s income tax returns did not establish work loss, and that “[m]edical services and transportation ha[d] not been documented to the Defendant within the appropriate time with discovery having been cut off in January[.]” Further, the trial court determined that the replacement services claimed were not for “heavy work,” as was required by plaintiff’s disability certificate.
The Court of Appeals reversed the trial court’s summary disposition order in favor of State Auto, ruling that the trial court erred by granting State Auto’s motion when it did, without affording McPhilmy an opportunity to establish a genuine issue of material fact in response to the motion. McPhilmy did establish a genuine issue of material fact by providing documentation in support of all of his claims for benefits, and thus summary disposition was improper.
At the time defendant filed its motion for summary disposition, it had not yet received sufficient documentation to support plaintiff’s claim for outstanding costs related to his accident. By demonstrating that plaintiff had failed to support his claim for outstanding costs under the no- fault act, defendant satisfied its burden demonstrating that plaintiff could not establish an essential element of his claims, i.e., showing by a preponderance of the evidence that his expenses were reasonable and necessary. Douglas, 492 Mich at 269; Quinto, 451 Mich at 362. This is not the end of the analysis, however. This merely shifted the burden to plaintiff to establish a genuine issue of material fact. Barnard Mfg Co, 285 Mich App at 370.
Interestingly, the Court of Appeals determined that the plaintiff did present sufficient evidence to support his claims for medical expenses and work loss benefits, but not his claims for replacement services. It is the opinion of the authors of this website that the Court’s determination as to McPhilmy’s claims for replacement services is wholly incorrect. The Court claimed that “recoverable replacement services do not include ‘ordinary and necessary’ household services, such as yard, house and car maintenance, that are not for the injured person’s ‘care.’” The services listed on McPhilmy’s claims for replacement services benefits included laundry, cooking, cleaning, etc., and the Court of Appeals concluded that “these services were not for the plaintiff’s care,” and were therefore unrecoverable. Thus, the Court conflated attendant care services with replacement services.
Regarding replacement services, we note that recoverable replacement services do not include “ordinary and necessary” household services, such as yard, house and car maintenance, that are not for the injured person’s “care.” Douglas v Allstate Ins Co, 492 Mich 241, 261-262; 821 NW2d 472 (2012); see also Meemic Ins Co v Forston, 324 Mich App 467, 474; 922 NW2d 467 (2018), lv gtd 503 Mich 1031 (2019). Here, plaintiff’s response to defendant’s motion for summary disposition included an affidavit from his wife indicating that plaintiff agreed to pay her $20 per day for replacement services. In her affidavit, plaintiff’s wife listed the following replacement services: preparing meals, doing laundry, cleaning house, washing windows, grocery shopping, lifting and carrying groceries, driving, gardening, mowing the lawn, taking out the garbage, shoveling snow, household repairs, anything requiring bending or lifting, washing the car, and caring for pets. Since these services were not for plaintiff’s care, the cost allegedly incurred in providing them was not recoverable.
