Michigan Court of Appeals; Docket # 327435; Unpublished
Judges Murray, Cavanagh and Wilder; Unanimous, per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Insurer’s Right to Penalty Attorney Fees for Fraudulent/Excessive Claims [§3148(2)]
TOPICAL INDEXING:
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals issued several rulings:
- the jury’s verdict that plaintiff-insured did not sustain an injury in the auto accident was not against the great weight of the evidence;
- the jury’s verdict that plaintiff-service provider engaged in fraud was not against the great weight of the evidence; and
- the trial court properly granted penalty attorney fees to defendant-insurer under MCL 500.3148 because plaintiff-service provider engaged in fraud.
Plaintiff was injured in an auto accident in July 2011. Because she did not know that her husband’s no-fault policy with defendant-Progressive would provide her coverage, plaintiff asked Ana Lou Brooks, a case manager, for help. Brooks Neurological Practice (BNP), owned by Ana Lou’s husband, began providing plaintiff case management services. Level One, a home healthcare service company, and Timely Transportation, a company that provides transportation, also began providing services to plaintiff. As part of Level One’s services, Abdullah Haqq was to be paid $1,085 per month for providing six to eight hours of attendant care services each day, and $20 per day for replacement household services. In August 2011, BNP requested that Grange pay for the case management, attendant care and transportation services provided to plaintiff. Grange sent an investigation letter because it had not received plaintiff’s medical records and because plaintiff had previously indicated that she did not plan to receive such services. Over the course of several months, Haqq received preprinted forms from Level One that indicated he performed various services for plaintiff, when he actually did not, including some forms that stated he performed services while he was in Japan. Haqq also received preprinted forms for services to be provided in the future. Haqq went ahead and signed the forms, asserting that Level One “told him to.” When the forms were submitted, no one verified that the services listed were actually performed. The forms were then forwarded to Grange for payment. Grange paid Level One $21,450. An independent medical examination was later conducted and the IME report indicated that plaintiff did not need attendant care and household services. Grange sent plaintiff a letter terminating her benefits. Plaintiffs filed this suit seeking payment for those services. Grange filed a counterclaim for fraud, innocent misrepresentation, unjust enrichment and payment under “mistake of fact.” Summary disposition motions were filed by both sides. The trial court granted summary disposition to defendant on plaintiff’s claim for replacement services, and denied both parties’ motions for summary disposition on Grange’s counterclaims, finding an issue of material fact existed about whether fraud was committed. A jury found that plaintiff was not injured in the auto accident and that Level One had committed fraud. Grange was awarded $21,450. Plaintiff’s motions for JNOV, new trial and remittitur were denied. The trial court granted Grange’s motion for attorney fees under §3148(2).
In its analysis, the Court of Appeals first affirmed the jury’s conclusion that plaintiff was not injured in the accident. The Court said the jury verdict was not against the great weight of the evidence:
“While there was sufficient evidence for a jury to find that Lanurias was injured in the motor vehicle accident, competent evidence supports the jury’s finding that she was not injured. First, evidence was presented that Lanurias left the hospital alert and under her own power the same day as the accident and later called defendant to inform them of her accident and her injuries. When making the call, Lanurias described her injuries to Kara Damm, a claim representative for defendant, as a soft tissue strain of the neck and injuries to her back, knee, and left arm, and noted that she was not planning on any follow up care. But, when she visited Dr. Campbell, Lanurias then complained of right arm pain and weakness, indicating to the jury that her injuries could have been fabricated and she could not keep her story straight. Second, the MRIs of Lanurias’s brain and spine revealed no injuries related to the motor vehicle accident. …Thus, the jury could have found that Lanurias was not injured in a motor vehicle accident.”
The Court further held the jury’s finding that Leve One committed fraud was also not against the great weight of the evidence. The Court said:
“Haqq testified that he received preprinted forms from Level One that indicated that he had performed services, even though he testified that he did not perform all the services indicated and that he did not spend as much time performing services as indicated on the forms. … Haqq acknowledged that the attendant care logs were inaccurate, but signed them anyway because he was told to do so by Level One. … Thus, at the very least, Level One’s representation that services were being performed was made recklessly without knowledge of the potential truth. … The verdict is not against the great weight of the evidence as competent evidence supported the jury’s finding.”
In conclusion, the Court of Appeals rejected plaintiffs’ argument that sanctions under §3148(2) were improper and declined to address this argument, noting it was not included in plaintiffs’ questions presented. The Court said:
“It is well established that this Court will not ordinarily review questions not separately stated in the statement of the questions presented for review as ‘[t]he court rules require that a brief contain a statement of questions involved.’ … Because this issue was not contained in plaintiffs’ questions presented, we decline to address plaintiffs’ claim of error.”
