Michigan Court of Appeals; Docket No. 299593; unpublished
Judges Murphy, Talbot and Murray; unanimous; per curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion 
STATUTORY INDEXING:
Requirement That Benefits Were Overdue [§3148(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
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In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s order denying the plaintiff’s motion for attorney fees under MCL 500.3148(1).
Plaintiff sustained a closed head injury in a rear end collision and was prescribed 24 hour attendant care provided by her husband. The accident occurred on November 9, 2006. In July 2007 the defendant terminated the plaintiff’s benefits based upon a report of its independent medical examiner, Dr. Thomas Gola, who offered the opinion that the plaintiff probably suffered a concussion in the accident, but that it would be “highly unlikely that residual neuropsychological deficits would arise from a concussive injury.”
After action was commenced, the matter proceeded to trial where the plaintiff was awarded more than $60,000.00 for allowable expenses and interest on overdue benefits. The plaintiff subsequently moved for attorney fees under MCL 500.3148(1). The trial court denied her request for attorney fees finding that the termination of benefits was reasonable. The court stated that based upon Dr. Gola’s reports, it was “reasonable for the defendant to cease making payments of no-fault benefits.” The fact that the jury found that some payments were overdue does not change this conclusion. Dr. Gola’s report gave rise to a legitimate question of factual uncertainty that reasonably supported the decision to deny further payments.
In affirming the trial court decision, the Court of Appeals noted that the decision whether to grant or to deny attorney fees under the No-Fault Act presents a mixed question of law and fact. What constitutes reasonableness is a question of law, but whether the defendant’s denial of benefits is reasonable under the particular facts of the case is a question of fact.
The court further stated that a refusal to pay or a delay in payment is not unreasonable if, among other reasons, it is based on a bona fide factual uncertainty.
Based upon the report of Dr. Gola, the court felt that a legitimate question of factual uncertainty existed and the trial court did not make a mistake in finding that such factual uncertainty existed and justified discontinuation of benefits.
Further, the court noted that in deciding whether an insurer’s decision to terminate or deny benefits is reasonable, the “focus must be on the time that the decision was made.”
