Michigan Court of Appeals; Docket No. 247669; Unpublished
Judges Fitzgerald, Neff, and Markey; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses for Medical Treatment [§3107(1)(a)]
Requirement That Benefits Were Unreasonably Delayed or Denied [3148(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion dealing with the attorney fee sanction provisions of §3148(1) of the Act, the Court of Appeals affirmed the trial court’s refusal to award attorney fees to plaintiff following a substantial jury verdict in plaintiff’s favor for unpaid attendant care benefits and medical expenses. At trial, plaintiff alleged that plaintiff had sustained a serious traumatic brain injury which required attendant care and other expenses. The defendant denied plaintiff had suffered any kind of brain injury and offered medical testimony disputing that such a brain injury had been sustained and that plaintiff required attendant care. Following an eight day trial, the jury awarded plaintiff $657,000 for unpaid attendant care, approximately $73,000 in interest on the unpaid attendant care benefits, approximately $92,000 in unpaid medical bills, and approximately $5,200 in unpaid mileage. After the trial, the trial court denied plaintiff’s motion seeking an award of attorney fees with regard to the unpaid benefits pertaining to plaintiff’s traumatic brain injury. With regard to that issue, the trial court found that there was a bona fide factual uncertainty concerning the traumatic brain injury issue and, therefore, defendant’s refusal to pay benefits related to the traumatic brain injury, was not an “unreasonable denial” within the meaning of §3148(1) of the Act. The Court of Appeals affirmed the trial court’s refusal to award attorney fees on the basis there was no abuse of discretion with regard to the trial court’s handling of this issue. In this regard, the court stated:
"the trial court ruled that given the factual uncertainty concerning plaintiff’s claim of traumatic brain injury, ‘defendant did not unreasonably refuse or unreasonably delay the benefits which are mostly charges for attendant care.’ The court stated that this was not a case in which the brain injury was clearly evident--the evidence did not show much outwardly wrong with plaintiff, and there was contradictory medical evidence. Further, many cases involving traumatic brain injury or closed head injury hinge on expert testimony, and in this case the experts disagreed whether there was such an injury.”
However, the trial court did award attorney fees regarding defendant’s failure to pay three medical bills which totaled $9,267.68. One of these bills was not paid until a few days before trial. These bills did not arise out of plaintiff’s traumatic brain injury, but rather related to other injuries that were sustained by plaintiff in the accident. The court found the payment of these particular medical expenses had been unreasonably delayed and, therefore, an attorney fee award was proper. With regard to the amount of the attorney fee sanction, the court utilized plaintiff’s one-third contingency fee agreement with his attorney and awarded attorney fee penalties in the amount of $3,086.14. The Court of Appeals affirmed this ruling and rejected plaintiff’s argument that he was entitled to reasonable fees based upon all of the work plaintiff’s counsel performed in the case, even though only certain medical expenses were found to have been unreasonably delayed. In rejecting this argument, the Court of Appeals noted that plaintiff’s counsel had actually urged the court to utilize the plaintiff’s one-third contingency fee agreement in determining the amount of attorney fees to award under §3148(1). The trial court did exactly what the plaintiff requested and, therefore, the plaintiff cannot be heard to complain on appeal that the trial court did not utilize some other standard.
