Michigan Court of Appeals; Docket # 349346; Unpublished
Judges Meter, Beckering, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses for Medical Treatment [§3107(1)(a)]
Allowable Expenses for Room and Board [§3107(1)(a)]
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this majority unpublished per curiam decision (Beckering, concurring), the Court of Appeals vacated a judgment entered in favor of the plaintiff, Russell Loiola, in the trial court and remanded for a new trial. The Court of Appeals held, as a matter of law, that certain charges incurred by Loiola while he recovered from a traumatic brain injury at a semi-independent living facility were not compensable as allowable expenses, and that the trail court erred in submitting some of these charges—food stipends, personal trainer charges, etc.—to the jury. The Court of Appeals further held that the trial court erred in denying defendant Citizens Insurance Company of America’s jury instructions regarding both allowable expenses and fraud.
Russell Loiola sustained a traumatic brain injury in a motor vehicle collision in January 2010, and after the collision, he received treatment at various locations: his mother’s house, a facility called Special Tree, a facility called Progressions, and, lastly, a semi-independent living facility called NeuroRestorative. Among the charges Loiola incurred at NeuroRestorative were, “(1) per diem charges, relating to things like food and room and board, and (2) additional charges for professional services Loiola received.” Citizens never paid the per diem charges, and eventually stopped paying benefits related to NeuroRestorative’s services altogether. Loiola’s guardian filed suit against Citizens on Loiola’s behalf in November 2016, and the jury ultimately returned a verdict in Loiola’s favor.
On appeal, Citizens first argued that the trial court erred in submitting charges to the jury related to “(1) a food stipend, (2) wages paid to Loiola by NeuroRestorative, (3) a personal trainer, (4) nonmedical transportation, and (5) room and board, including amenities such as utilities and cable,” because such charges were not allowable expenses. The Court of Appeals agreed, holding that although some of the charges were properly submitted, others, such as the food stipend, wages, and personal trainer charges, were not allowable expenses as a matter of law. The Court contrasted the semi-independent structure of NeuroRestorative with that of a hospital, in which charges for food are “integrated” charges, because patients do not necessarily have an option to eat anything other than the hospital’s food.
The $75 per week food stipend is easily identifiable as a noncompensable, ordinary expense, and it is easily severed conceptually from the rest of the per diem. Further, contrary to the trial court’s reasoning, although Loiola is not living at home, he is also not in the in-patient hospital setting described in Griffith and Admire as examples of integrated charges. In recognizing that food and other everyday expenses may be compensable during a hospital stay, Griffith and Admire both expressly contemplated situations in which a hospital patient was “required to eat that particular food.” Admire, 494 Mich at 29-30; Griffith, 472 Mich at 537-538. Indeed, both Courts considered hospital food akin to a special diet. Admire, 494 Mich at 32; Griffith, 472 Mich at 537. Loiola, in comparison, was not required to eat any particular food. He enjoys considerable freedom in his semi-independent living facility, including the ability to leave, go to the store, and purchase normal food which he then prepared in his apartment. He was also free to go to restaurants and has in fact used the food stipend for restaurants. Quite simply, Loiola is not eating “hospital food,” and his everyday food expenses—in the form of a $75 per week food stipend—are not compensable. See Admire, 494 MIch at 27-30; Griffith, 472 Mich at 535-538. The trial court erred as a matter of law by submitting the food stipend charges to the jury and denying Citizens’ motion for JNOV on this basis.
As for the personal trainer charges, the Court of Appeals held that Loiola failed to present any evidence that he needed personal training for his care, recovery, or rehabilitation from the motor vehicle collision. The Court found NeuroRestorative’s argument that Loiola had been “institutionalized,” and that every charge he incurred while there was therefore compensable.
More generally, the inclusion of the personal trainer expense in its bills to Citizens evinces NeuroRestorative’s blanket approach to both services and charges. In the trial court, particularly in responding to Citizens’ motion for summary disposition, Loiola’s attorney seemed to take the position that any service NeuroRestorative provided was compensable because Loiola had been “institutionalized.” As discussed, this comparison to a hospital or other facility where patients have no control over things like food does not necessarily hold true of the semi-independent living at NeuroRestorative, where residents enjoy considerable freedom and choice. Indeed, at trial, Susan Krygier, NeuroRestorative’s representative, denied that NeuroRestorative was an “institution.” But, with regard to a personal trainer and other itemized charges (such as charges for smoking cessation services), this “institutional” approach to billing is particularly unavailing. The personal trainer is not included in the per diem; it is a separate, hourly charge, so it is not a combined expense, and it is certainly not an integrated charge. See Admire, 494 Mich at 28-29. In these circumstances, Loiola cannot justify the personal trainer expense simply by offering evidence that he needs to live in a semi-independent living facility. Instead, Loiola bore the burden of proving that “each particular expense” was both reasonable and necessary. See Nasser, 435 Mich at 50. Given Loiola’s failure to offer any evidence of a change to his basic fitness needs, Loiola did not meet his burden of proving that the particular charge for a personal trainer was reasonably necessary. The trial court erred by denying Citizens’ motion for JNOV regarding this expense.
The Court of Appeals next held that the trial court erred in submitting to the jury charges for “wages” that NeuroRestorative paid to Loiola as a part of its prevocational rehabilitation program. The wages included payments made to Loiola for performing janitorial work at NeuroRestorative, and the Court noted that, “to the extent the wages signal a return to work, the wages are not compensable because a return to work is the goal of rehabilitation, not part of rehabilitation.” Furthermore, these charges could easily be identified and separated out from the other costs of NeuroRestorative’s services, and thus could have, and should have been, subtracted by the trial court prior to submitting NeuroRestorative’s other charges to the jury.
As for charges relating to nonmedical transportation and housing, the Court of Appeals held that those did, however, more closely resemble “integrated” charges, and that the trial court did not err in submitting them to the jury.
Accordingly, the Court of Appeals next held that the trial court erred in denying Citizens’ requests for special jury instructions regarding both allowable expenses and fraudulent insurance acts. As to the instruction regarding fraud, Citizens asked the trial court to inform the jury that, if it determined Loiola presented any false information concerning any fact or thing material to his claim, Loiola would not be eligible for payment of benefits. The trial court denied Citizens’ request, ruling that Citizens’ allegation that Loiola had committed fraud by lying to his treatment providers about his substance abuse history was not material to his claim for benefits. The Court of Appeals reversed, however, holding that such misstatements were potentially material because “Loiola’s history was relevant to determining his pre-accident functioning.”
