Michigan Court of Appeals; Docket No. 202159; Unpublished
Judges Jansen, Holbrook, and MacKenzie; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses: Reasonable Charge Requirement [§3107(1)(a)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
TOPICAL INDEXING:
Revised Judicature Act – Miscellaneous Provisions
CASE SUMMARY:
In this unanimous per curiam unpublished Opinion, the Court of Appeals held that the evidence supported an award of attendant care benefits to plaintiff for providing attendant care to the insured who sustained a closed head injury and whose physician ordered that he required 24-hour attendant care, including non-waking hours. The Court of Appeals also found that it was appropriate for plaintiff to be compensated at the commercial rate of $10.95 per hour for the attendant care services.
Plaintiffs ward, Paul Garbo, was involved in an automobile accident in 1992, resulting in a closed head injury. His physician ordered 24-hour attendant care because of his cognitive memory problems. This care spanned the period from January, 1993 to April, 1994. When Paul was brought home by plaintiff, a professional home health care service provided some attendant care. However, in June, 1993, plaintiff began to view the commercial attendant care services as unreliable and engaged the services of an individual to provide attendant care services during the day time while plaintiff was at work. An agreement was reached with Auto-Owners concerning compensation for the aide care that plaintiff provided to Paul during the times that the personal aide hired by plaintiff was not available. It was agreed that Auto-Owners would pay the plaintiff the sum of $300 per week, but a dispute arose as to whether that amount covered non-waking hours. Plaintiff requested, in May, 1994, that Auto-Owners make retroactive payments for the uncompensated non-waking hours, claiming that the $300 per week had been agreed upon to cover only for waking hour services provided by plaintiff.
The Court of Appeals held that the trial court did not commit error in determining that the $300 per week would constitute compensation for waking hours only. Based upon the testimony presented, there was no "mutual assent" regarding the $300 per week constituting compensation for non-waking hours as well. Under section 3107(l)(a), plaintiff was entitled to be compensated for her services in performing attendant care during Paul's non-waking hours. His physician had ordered 24-hour attendant care during the applicable time frame, and it could be inferred from the testimony that Paul's mental state had required supervision during non-waking hours to insure his welfare and safety due to his irregular sleep pattern and impulsive tendencies at nighttime.
Auto-Owners also contested the trial court's finding that plaintiff was entitled to be compensated at the "commercial rate" for her services rendered. The Court of Appeals held that the reasonableness of expenses incurred "may be compared with rates charged by institutions." Reed v Citizens Insurance Company of America, 198 Mich App 443 (1993) (Item No. 1597) and Sharp v Preferred Risk Mutual Insurance Company, 142 Mich App 499 (1985) (Item No. 834).
The court noted that in Sharp, supra, it was held that the plaintiff was entitled to be compensated for replacement services at a higher rate than that which she had paid for the nurses and aides whom she hired. The Court of Appeals also found that the plaintiff in this case was not entitled to attorney fees under section 3148. The court concluded that Auto-Owners' initial refusal to compensate plaintiff for having rendered attendant care for the non-waking hours was not unreasonable in light of the communications that had occurred between plaintiff and the insurance company.
Finally, the Court of Appeals held that plaintiff was entitled to pre-judgment interest at 12% under MCLA 600.6013(5). The court noted that the Supreme Court of Michigan recently affirmed the decision in Yaldo v North Pointe Insurance Company, 457 Mich 341 (1996), holding that an insurance policy constitutes a written instrument governed by Section 600.6013(5) allowing pre-judgment interest at 12%.
