Michigan Court of Appeals; Docket No. 297189; Unpublished
Judges Borrello, Jansen, and Saad; Unamimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Collateral Estoppel and Res Judicata
CASE SUMMARY:
In this unanimous unpublished decision, the Court of Appeals reversed the trial court’s Order granting the summary disposition in favor of plaintiff on the issue of whether, on the basis of collateral estoppel, the defendant must pay the plaintiff’s 24-hour skilled nursing services at $30 per hour, because in a previous lawsuit between the plaintiff and defendant, a judgment was entered ordering that 24-hour skilled nursing services should be paid at $30 per hour as an allowable expense benefit under MCL 500.3107(1)(a).
The plaintiff in this case sustained various injuries in an automobile accident that occurred in 2003, including severe damage to his left forearm and a closed head injury. The plaintiff litigated a previous lawsuit against the defendant in Oakland Circuit Court. The case resulted in a judgment ordering the defendant to pay 24-hour skilled nursing services at $30 per hour. The defendant complied with the judgment until February 29, 2008, when it reduced the hourly rate it paid for family-provided attendant care services. The plaintiff filed this lawsuit against defendant and later filed a motion for summary disposition. Based on the prior judgment, plaintiff argued that the defendant was collaterally estopped from relitigating the issue of the hourly rate, because the defendant could not show a change in circumstances that would justify reducing the payment for attendant care benefits from $30 per hour to $11 per hour.
The Court of Appeals ultimately reversed the trial court on the basis that there was a question of fact whether the plaintiff’s need for attendant care changed since the judgment. In this regard, the court stated:
“There is clearly an issue of fact with regard to the level of care plaintiff requires. Plaintiff presented a report drafted by Renee La Porte, RN, who stated that, as of September 23, 2009, plaintiff needed Ira to continue to act as his Life Skills Trainer and that Ira’s 24-hour service is valued at $30 per hour. However, the basis for her assertion as to the value or cost of that service is not apparent from the record. While Ira is a registered nurse, no evidence established that she is a ‘Life Skills Trainer’ or what licensing, training or compensation a ‘Life Skills Trainer’ generally receives.
Further, defendant presented evidence that the care Ira currently provides plaintiff does not necessarily require the skills of a registered nurse or a licensed practical nurse. . .
As noted, defendant does not dispute that, at this time, plaintiff requires 24-hour care. The record appears clear that plaintiff has various cognitive and behavioral problems that cause him to act impulsively or diminish his ability to function without supervision. Further, plaintiff continues to experience some pain and leg weakness. However, as discussed, defendant presented evidence that the level of 24-hour care plaintiff requires is primarily for safety and supervision as well as self-care tasks and that this is a level of care lower than that of an RN or LPN. Because defendant established a genuine issue of material fact on this critical issue, it was error for the trial court to grant summary disposition to plaintiff.”
