Michigan Court of Appeals; Docket #253991; Unpublished
Judges Owens, Cavanagh and Neff; 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 Home Accommodations [3107(1)(a)]
12% Interest Penalty on Overdue Benefits – Nature and Scope [3142(2)(3)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed a directed verdict for plaintiff that (a) found defendant was obligated to pay an additional $60,000 for a new, larger and more suitable home to accommodate plaintiff’s paraplegic minor daughter and (b) found defendant was obligated to pay attendant care benefits for 24 hour a day care for the daughter. The court held that the question whether the increased size of the plaintiff’s new home was reasonably necessary for the care of plaintiff’s daughter was a question for the jury where there was evidence that between one-quarter and one-half the size of the new home was not for the daughter’s accommodation but was rather to accommodate her family. In so ruling, the court stated:
“‘As long as housing larger and better equipped is required for the injured person than would be required if he were not injured, the full cost is an “allowable expense” under the no-fault act.’ Sharp v Preferred Risk Mutual Insurance Co, 142 Mich App 499, 511; 370 NW2d 619 (1985) [RB #957]. However, in Sharp, the plaintiff was the sole occupant, and the entire cost of the accommodations was necessarily for the plaintiff’s benefit. Here, the accommodations were for Kayla’s entire family, which presumably gained some benefit from the additional space. The difference in mortgage amounts did not, by itself, prove that the accommodations for Kayla were reasonable. Therefore, the issue should not have been disposed of by directed verdict but, rather, was a question for the jury.”
The Court of Appeals also reversed the directed verdict for plaintiff on the issue whether plaintiff required 24-hour attendant care, finding there was a question of fact regarding the required amount of care. In so finding, the court reasoned:
“Defendant relied on four expired prescriptions for twelve hours a day of attendant care. The first prescription predated Kayla’s release from the hospital, and the last expired on January 1, 2002. One doctor refused to estimate the number of attendant care hours required because, once a patient left the hospital, the number of hours could no longer be predicted without knowing how long the care provider took to perform certain tasks. The other doctor testified that his original prescription had been for attendant care hours in addition to those Kayla was already receiving and opined that she required twenty-four-hour care. Kayla’s parents testified that she required twenty-four-hour care. Defendant’s claims specialist testified that she had seen nothing to contradict the prescriptions for twelve hours of care a day, but the rehabilitation nurse assigned to the case testified that it was solely the doctors’ role to specify attendant-care needs. The conflicting testimony could have led reasonable jurors to disagree, and the court improperly substituted its judgment for that of the jury.”
Finally, the Court of Appeals determined that plaintiff was improperly awarded no-fault penalty interest for the home and attendant care awards because those amounts had not yet been found to be owed. It also determined plaintiff was improperly awarded penalty interest for reimbursement for diapers because that expense was never formally submitted. In this regard, it stated:
“‘Penalty interest must be assessed against a no-fault insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the insurer’s good faith in not promptly paying benefits.’ Williams v AAA Michigan, 250 Mich App 249, 256; 646 NW2d 476 (2002) [RB #2284]. . . . The trial court’s award of penalty interest on the $60,000 for the house, and its award of penalty interest on the attendant care, must be reversed because they have not yet been determined to be owing. . . . Similarly, the penalty interest on the claim for diaper expenses must be reversed. Although defendant apparently did not contest awareness of the claim, diaper expenses were not mentioned until plaintiff’s trial brief under the heading ‘Miscellaneous medical expenses.’ The pleadings otherwise referred to ‘other allowable expenses not yet identified.’ Kayla’s parents testified that they informally asked if diapers were allowable expenses and were denied. However, defendant’s representative stated that diapers were compensable, and she would have paid for them if she had been asked. Thus, although both parties agreed at trial that plaintiff was entitled to the cost of diapers, and the court granted plaintiff judgment on the issue, the testimony indicated that whether defendant was made aware of the claim was an issue for the jury. . . . Because this was an issue for the jury, an award of penalty interest was premature. . . . Reversed and remanded.”
