Michigan Court of Appeals Docket # 295441 Unpublished
Judges Owens, O’Connell and Meter; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses: Causation Requirement [§3107(1)(a)]
12% Interest Penalty on Overdue Benefits – Nature and Scope [§3142(2) (3)]
Requirement That Benefits Were Overdue [§3148(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Presumption of Unreasonableness
Bona Fide Factual Uncertainty / Statutory Construction Defense
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed in part and reversed in part a trial court ruling regarding the plaintiff’s claim for penalty interest and no-fault attorney fees in a case where the plaintiff claimed injury to her low back requiring surgical procedures which then led to her inability to then cut her own toenails thus requiring the treatment of a podiatrist. The plaintiff also claimed injury to her neck.
The plaintiff was injured in 1988 when rear-ended by a semi-truck. She sustained neck, back, and shoulder injuries. Her injuries eventually resulted in two surgical procedures on her lower back involving implantation of rods and screws. Additionally, in 2006, her orthopedic surgeon recommended an additional surgery to her neck resulting in infusion of the C-6 and C-7 vertebrae. During that surgery, there was a tear discovered in the longitudinal ligament. Farm Bureau denied or failed to pay many (but not all) of the bills for the 2006 neck surgery. Farm Bureau also paid two of the bills for and denied two of the bills for toenail care by podiatrists which the plaintiff claims were necessary because the rods in her back prevented her from trimming her own toenails. Disputed evidence was presented by experts at trial by both sides concerning whether or not the neck condition and surgery were causally connected to the motor vehicle accident in 1988. At the conclusion of trial, the jury found the defendant liable for the plaintiff’s medical expenses but did not find any of the expenses to be “overdue” within the meaning of Section 3142 of the No Fault Act. The plaintiff then moved for a partial judgment notwithstanding the verdict on the issue of whether the payments were overdue, which the trial court granted.
On appeal, the defendant challenged the trial court ruling in the plaintiff’s favor on JNOV.
With regard to the plaintiff’s neck surgery, the Court of Appeals found that the facts in the present case could have allowed the jury to conclude that the plaintiff was owed the payment of these expenses, but that the jury was not obligated to find that benefits were overdue. The court stated that the jury could have found that the testimony of the plaintiff’s expert constituted reasonable proof of plaintiff’s claim that the need for surgery in 2006 was related to the accident, however, such evidence was not presented more than 30 days prior to trial. Therefore, the Court of Appeals could not say as a matter of law that the jury reached the wrong conclusion and therefore, the trial court’s JNOV holding that payments for the plaintiff’s neck surgery were overdue was vacated.
Regarding the podiatry bills, the Court of Appeals, however, concluded that no reasonable jury could have found that the plaintiff failed to present reasonable proof of this claim, and therefore, that portion of the trial court’s ruling was affirmed.
Concerning the attorney fee award which the defendant also challenged, the court held that with regard to the neck surgery, since those bills were not overdue, attorney fees were not appropriate under Section 3148.
However, with respect to the podiatry care, the court held that the trial court did not clearly err in holding that the defendant unreasonably denied payment for the plaintiff’s podiatry care.
The court remanded for further proceedings consistent with its opinion.
