Michigan Court of Appeals; Docket No. 295484; Unpublished
Judges Murray, Hoekstra, Stephens; Unanimous; Per Curiam
Official Michigan Report of Citation: Not Applicable; Link to Opinion 
The Michigan Supreme Court affirmed in part and reversed in part the Court of Appeals' decision on 7/30/12; Link to Opinion
STATUTORY INDEXING:
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
Allowable Expenses: Reasonable Charge Requirement [§3107(1)(a)]
Allowable Expenses: Incurred Expense Requirement [§3107(1)(a)]
Reasonable Proof Requirement Section 3142(2)
Requirement That Benefits Were Overdue [§3148(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed in part and reversed in part the trial court's rulings on several issues raised in motions for summary disposition. Furthermore, the court vacated the trial court's judgment of $1,163,395.40 in favor of plaintiff for attendant care benefits, no-fault attorney fees, penalty interest, and pre-judgment interest.
The court affirmed the trial court's denial of the defendant’s third motion for partial summary disposition which sought to dismiss the plaintiff’s claim for attendant care because the affidavit of the plaintiff’s treating psychologist, which contained the conclusion that the plaintiff was in need of “aid care during all waking hours” for the time period at issue, was insufficient to create a genuine issue of material fact regarding the plaintiff’s need for care. The court ruled that the affidavit was enough to create a genuine issue of material fact regarding the plaintiff’s need for attendant care. The court reasoned that the psychologist evaluated the services rendered and found them to constitute reasonable and necessary services for the plaintiff. The court further reasoned that while there was no prescription for attendant care, that fact alone did not preclude a rationale trier of fact from finding that attendant care was reasonably and necessary.
With respect to the defendant's argument that the plaintiff should be prohibited from claiming any more than one hour of attendant care service, the court rejected this argument on the basis that the caregiver’s testified that she provided safety monitoring and redirection to the plaintiff throughout each day at issue. The court reasoned this testimony was sufficient evidence to create a genuine issue of material fact that more than one hour of service was provided to the plaintiff each day.
The court further rejected the Defendant's argument that MCL 500.3107(1)(a) requires that nursing care be provided by a licensed aide in order to qualify as an allowable expense. The court reasoned that under the Supreme Court’s decision in Griffith v. State Farm, the material question is not whether the caregiver’s services may be labeled as nursing care, but whether the caregiver’s services are reasonably necessary because of the motor vehicle accident. Furthermore, the court also noted that the Workers’ Disability Compensation Act provides payment for on-call time as attendant or nursing care, so long the on-call time is demonstrated to be necessary. In this regard, the Court specifically explained:
“We also note that MCL 418.315(1), a provision of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., which provides for attendant or nursing care, has been construed as allowing for on-call time if it is necessary. Morris v Detroit Bd of Ed, 243 Mich App 189, 197-199; 622 NW2d 66 (2000). Such time may be compensable under the WDCA even if the caregiver was pursuing his or her own interest or performing household tasks, so long as the caregiver performs these tasks within the limits of the on-call job. See Brown v Eller Outdoor Advertising Co, 111 Mich App 538, 543; 314 NW2d 685 (1981). Contrary to defendant’s argument on appeal, this Court’s decisions in Moghis, 187 Mich App at 247, and Attard, 237 Mich App at 317-318, do not preclude awards for supervisory or on-call time where a claim is made for PIP benefits under the no-fault act. In Moghis, 187 Mich App at 247, this Court determined that there was insufficient evidence that aide care was actually provided. In Attard, 237 Mich App at 317-318, this Court merely found that a question of fact existed with respect to whether 24 hours of supervisory care was actually provided by the plaintiff’s wife in a case where the plaintiff’s physician recommended 24-hour supervision each day.”
Despite rejecting the defendant’s argument regarding nursing care, the court agreed with the defendant that the trial court erred in deciding the issue of whether the attendant care expenses were “incurred." The court reasoned that the trial court merely cited Booth v. Auto Owners Ins Co., 225 Mich App 724 (1997), for the proposition that it is not necessary that an insured actually be billed by a family member for an attendant care claim. However, the court noted that the trial court erred by not addressing the Supreme Court’s holding in Burris v Allstate, 480 Mich 1081 (2008), wherein the Supreme Court held that “to incur an expense for attendant care services the insured’s family members and friends, just like any other provider, must perform the services with a reasonable expectation of payment.” Therefore, in remanding the case for a new trial, the court ordered that the trial court shall also determine whether the caregiver reasonably expected compensation for her services at the time she performed those services.
In regards to the issue of whether the sufficient proof had been presented to support the plaintiff’s attendant care claim, the court reasoned that the trial court erred by awarding attendant care expenses for services that were rendered subsequent to her trial testimony and that were not supported by any documentation. The court ultimately reasoned that it was improper to award the plaintiff attendant care benefits for a time period for which no proof of services rendered had been submitted. In regards to the time period prior to the trial, the court reasoned that additional documentation was necessary to support the plaintiff’s claim for attendant care. In this regard, the court stated:
“Because defendant had no obligation to make payment until it was provided with documentation of Catherine’s attendant care, the trial court clearly erred in awarding attendant care benefits to plaintiff without requiring sufficient documentation to support the daily or weekly hours underlying the award…the trial court may take additional testimony, if necessary, and amend its findings or render new findings and amend the judgment accordingly…”
The court then rejected the defendant’s argument that the trial court erred in using $40.00 per hour as a reasonable charge for the hourly rate of attendant care services provided. The court reasoned that the compensation paid to a licensed healthcare professional who provides similar services may be used to determine the reasonable rate of hourly compensation for an unlicensed attendant care provider. The court reasoned that based on testimony from the director of a commercial nursing agency,a charge of $40.00 per hour was within the range of evidence of a reasonable charge for the services rendered. In this regard, the court held:
“With respect to defendant’s challenge to the hourly rate of $40 used by the trial court to determine the award, we find no clear error. The compensation paid to a licensed healthcare professional who provides similar services may be used to determine reasonable compensation for an unlicensed person. Bonkowski v Allstate Ins Co, 281 Mich App 154, 164; 761 NW2d 784(2008). The rate charged by institutions may also provide a valid method for determiningwhether the charge for care provided by a family member for comparable services is reasonable. Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 514; 370 NW2d 619 (1985). Here, the $40 rate is supported by Rosenbaum’s testimony regarding the rate charged by his TheraSupport program for attendant care and also the testimony of defendant’s adjuster regarding rates charged by commercial agencies for home attendant care. Thus, the trial court’s use of the $40 rate is within the range of evidence. Therefore, we find no basis for disturbing this finding . . .”
Lastly, the court agreed with the defendant that the trial court erred in awarding the plaintiff no-fault attorney fees based on its determination that the defendant failed to timely pay medical expenses. Although there was evidence that medical bills were not paid until October 2006, more than 30 days after the action was filed in May 2005, the plaintiff failed to establish that the medical bills were not paid within 30 days after the defendant received reasonable proof of the fact in the amount of the loss sustained. Therefore, the court reversed the trial court’s award of attorney fees and statutory interest based on that award.
