Michigan Court of Appeals; Docket No. 292649; Published
Judges Beckering, Whitbeck, and M. J. Kelly; unanimous: by Judge M. J. Kelly
Official Michigan Reporter Citation: Forthcoming, Link to Opinion 
On April 18, 2012, the Michigan Supreme Court held the Application for Leave to Appeal in ABEYANCE pending the decisions of Johnson v Recca and Douglas v Allstate; Link to Order
On December 5, 2012, the Michigan Supreme Court VACATED the Judgment of the Court of Appeals and REMANDED for reconsideration in light of the Court's decisions in Johnson v Recca and Douglas v Allstate; Link to Order
STATUTORY INDEXING:
Allowable Expenses for Conservatorships and Guardianships [3107(1)(a)]
Allowable Expenses: Causation Requirement [3107(1)(a)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion by Judge M. J. Kelly, the Court of Appeals reversed the probate court’s Order obligating ACIA to only pay $99 of the fees incurred in excess of $6,800 for the conservator services the plaintiff, Alan May, rendered to Edward Carrol, a person who would not have needed a conservator but for the injuries he sustained in the subject motor vehicle accident.
Mr. Carroll sustained serious brain injuries in a motor vehicle accident that occurred in 1982. For over 26 years, ACIA paid 24-hour attendant care to Mr. Carroll’s wife. Mr. Carroll’s wife died in November 2008. Mr. Carroll was briefly admitted into an adult foster care home. However, after he was released, Mr. Carroll ultimately petitioned the probate court to appoint a conservator to handle his financial affairs. The probate court granted Mr. Carroll’s petition and Alan May was nominated as conservator. Over the course of the next year, Mr. May provided conservator services that resulted in his outstanding bill in excess of $6800.
The probate court determined that ACIA was only obligated to pay $99 of the total expenses incurred for the conservator services rendered to Mr. Carroll. The court concluded that while the fees were related to Mr. May’s duty as a conservator, the services were, for the most part, not related to Mr. Carroll’s care, recovery, or rehabilitation, as required under MCL 500.3107(1)(a).
The Court of Appeals ultimately reversed the probate court and determined that ACIA should pay the total expenses incurred for the conservator services rendered to the injured person. The court noted that in Heinz v Auto Club Ins Ass’n, 214 Mich App 195 (1995), the Court of Appeals held that guardianship services a person needed as a result of injuries sustained in a motor vehicle accident were compensable under §3107(1)(a). The court noted that Heinz stands for the proposition that compensable services under §3107(1)(a) are not necessarily limited to medical services and can include other types of services an injured person needs as a result of the accident, including guardianship services.
The court further noted that to the extent that Heinz did not specifically hold that conservator services would be compensable under §3107(1)(a), the statutory language of §3107(1)(a), as well as the Probate Code certainly supports this proposition. In this regard, under MCL 700.5401(3), a probate court may appoint a conservator if the court determines that the individual is unable to effectively manage property and business affairs due to mental illness, mental deficiency, physical illness or disability. The court reasoned that in Mr. Carroll’s case, it was clearly demonstrated that as a result of the injuries he sustained in the subject motor vehicle accident, he could not manage his property and business affairs. Therefore, the conservator services were reasonably necessary for Mr. Carroll’s care. In this regard, the court specifically held:
“A probate court may appoint a conservator if the court determines that the ‘individual is unable to manage property and business affairs effectively,’ in relevant part, because of ‘mental illness, mental deficiency, physical illness or disability’ and the individual has ‘property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, and that protection is necessary to obtain or provide money.’ MCL 700.5401(3). A probate court may also ‘appoint a conservator’ for ‘an individual who is mentally competent, but due to age or physical infirmity is unable to manage his or her property and affairs effectively and who, recognizing this disability, requests a conservator’s appointment.’ MCL 700.5401(4).
In the present case, May petitioned the probate court, as Carroll’s nominee, for a conservatorship for Mr. Carroll. He represented that Carroll could not manage his property and business affairs due to physical illness or disability and a closed head injury. Similar to a guardianship, the conservatorship was necessary as part of Carroll’s ‘care,’ because he could no longer manage his own affairs as a result of a closed head injury.”
Notably, in footnote 3 of the Opinion, the Court of Appeals cited Shields v State Farm Mut Auto Ins Co, 254 Mich App 367 (2002) for the proposition that when conservator fees are needed for other reasons than the injuries the person sustains in a motor vehicle accident, such as the case with minors, those services may not be compensable under §3107(1)(a).
In reaching its holding, the Court of Appeals rejected ACIA’s argument that the full amount of the conservator fees should not be compensable under the Michigan Supreme Court’s holding in Griffith and, in the alternative, the services should not be compensable because they constitute replacement services, which are only recoverable for three years following the motor vehicle accident.
In regards to Griffith, ACIA argued that the conservator fees for services would have been rendered regardless of the injuries Mr. Carroll sustained in the motor vehicle accident. The court rejected this argument on the grounds that while the conservator may have been performing services the injured person would have performed, if he were not injured, it would not have been necessary to have the conservator perform these services but for the injuries Mr. Carroll sustained in the subject motor vehicle accident. The court analogized the situation to attendant care provided by a nursing assistant who handles an injured person’s intimate hygiene needs. In this regard, the Court reasoned that although the injured person would normally have handled those services on his own, the injuries resulted in the person now needing another person to perform these reasonably necessary services. In this regard, the court held:
“Here, Mr. Carroll had a closed head injury that prevented him from being able to manage his own affairs—that is, Carroll’s need for a conservator was causally related to the injuries Carroll sustained in an accident. Admittedly, even if Carroll had not been in the accident, he would have needed to pay his bills and manage his accounts and assets. The question therefore becomes whether the conservator’s actions were needed for Carroll’s care, recovery, or rehabilitation from the injury. Unlike the case in Griffith, petitioner here was not seeking payment of the actual expenses that he would have incurred—such as the cost of food—nor was he seeking to recover the cost of engaging a real estate agent to sell his home or the cost of advertisements. These expenses would likely have been incurred regardless of the accident. Instead, the claim here is for the service of having a conservator manage these matters; and this would not have been necessary but for the accident-related injury. The conservator’s services here are more akin to attendant care provided by a nursing assistant who handles an injured person’s intimate hygiene needs; although the injured person would normally have handled those needs on his or her own, as a result of the injury he or she is no longer able to do so. Because expenses incurred to have someone perform those hygiene services are reasonably incurred for the injured person’s care, recovery, or rehabilitation, the nursing assistant’s services are compensable under MCL 500.3107(1)(a). See Reed v Citizens Ins Co, 198 Mich App 443, 453; 499 NW2d 22 (1993). Similarly, because the need for the conservator was causally connected to Carroll’s injury and the expense is reasonably necessary for his ‘care,’ it too is compensable under MCL 500.3107(1)(a). Accordingly, Griffith does not bar recovery of the conservator’s fee.” (emphasis in original)
In regards to ACIA’s replacement service argument, the court rejected this, based on the simple conclusion that the conservator services were for Mr. Carroll’s care and were not “ordinary and necessary” services that would constitute replacement services under §3107(1)(c).
