Michigan Court of Appeals; Docket #292401; Unpublished
Judges Cavanagh, Hoekstra, and Gleicher; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [3107(1)(a)]
Allowable Expenses: Incurred Expense Requirement [3107(1)(a)]
Replacement Service Expense Benefits: The Incurred Requirement [3107(1)(c)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed summary disposition in favor of defendant on plaintiff’s attendant care and replacement services claims. The trial court ruled plaintiff had failed to establish that any of the attendant care or replacement services in question were “reasonably necessary” or that plaintiff “incurred” any expenses for those services. In reversing, the Court of Appeals held that the evidence, when viewed in a light most favorable to the plaintiff, created fact questions as to both issues.
With regard to the issue of reasonable necessity, the court noted that the testimony of plaintiff’s attending physician established that even though plaintiff had significant health problems before the accident, those problems were made worse as a result of the accident and, accordingly, plaintiff needed more assistance with activities of daily living than she had required before the accident.
With regard to the issue of whether plaintiff incurred the expenses for the claimed attendant care and replacement services, the court held that there was sufficient evidence to create a fact question. Citing the Supreme Court’s decision in Proudfoot v State Farm Mut Ins Co, 469 Mich 476 (2003), the court held that to “incur” means “to become liable or subject to, especially because of one’s own actions.” In the case at bar, there was testimony that plaintiff and her care giver had entered into an agreement that the care giver would be compensated for the services that were rendered, even though there was inconsistent testimony as to the specifics of that agreement. The court distinguished this case from the Supreme Court’s decision in Burris v Allstate Ins Co, 480 Mich 1081 (2008), where the Supreme Court ruled that attendant care benefits were not compensable because there was no proof that the attendant care providers expected compensation for their services. Contrary to Burris, both the plaintiff and her care giver had testified that there was an agreement the care giver would be paid. The court further cited Justice Corrigan’s concurring opinion in Burris wherein she stated that the term “liable” means “obligated according to law or equity.” Thus, the Court of Appeals in the instant case held, “an insured does not necessarily need to enter into a contract to be liable for services. . . . In addition, the fact that plaintiff never paid [her care giver] for her services is not dispositive of whether plaintiff incurred any expenses. Out-of-pocket payment is only one way that an insured can be liable for expenses. . . . Accordingly, the trial court erred in holding that plaintiff failed to present sufficient evidence that she incurred any expenses to withstand summary disposition.”
