Michigan Court of Appeals; Docket No. 203300; Published
Judges Smolensky, Gribbs, and O'Connell; Unanimous
Official Michigan Reporter Citation: 237 Mich App 311; Link to Opinion 
STATUTORY INDEXING:
Penalty Attorney Fees and Other Court Rule Sanctions [§3148]
Bona Fide Factual Uncertainty / Statutory Construction Defense [§3148]
12% Interest Penalty on Overdue Benefits – Nature and Scope [§3142(2), (3)]
Interest Penalty Additive to Judgment Interest [§3142]
Reasonable Proof Requirement [§3142(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous published Opinion by Judge Smolenski, the Court of Appeals rendered several holdings with regard to interest, attorney fees and recoverable PIP benefits following a jury trial verdict in favor of plaintiff. Among other things, the court ruled as follows:
(1) The court affirmed the trial court's denial of attorney fees under section 3148 for that part of plaintiff’s case dealing with a claim for 24 hour a day attendant care. Prior to trial, the defendant was paying attendant care at the rate of 18 hours per day. There was a dispute as to whether the plaintiff was actually rendering attendant care during the remaining eight (8) hours. Plaintiff had submitted inconsistent evidence with respect to this aspect of her claim. Therefore, the trial court correctly concluded that there was a legitimate question of factual uncertainty with respect to this part of the claim, and as a result, defendant's refusal to pay was not unreasonable.
(2) The court agreed with the trial court's ruling that interest under section 3142 of the no-fault statute is considered a part of the judgment on which plaintiff can collect pre-judgment interest pursuant to MCLA 600.6013(6) (the pre-judgment interest statute). The court stated that interest under section 3142 and interest under the pre-judgment interest statute compensates two (2) different things. The court noted,
"Unlike pre-judgment interest, which is intended to compensate a party for the delay in receiving its damages, no-fault interest is intended to penalize an insurer that is dilatory in paying a claim." Therefore, the court held, Awe concluded that a prevailing plaintiff may recover no-fault penalty interest under section 3142 as a cost subject to prejudgment interest under MCLA 600.6013. "
(3) The court ruled that the trial court should have granted defendant's motion for partial JNOV with regard to those aspects of plaintiff s PIP claim, including the cost of massage therapy and health club membership. The court held that plaintiff should not have prevailed on these claims because, although plaintiff introduced evidence supporting his need for those services, plaintiff never introduced any evidence as to the costs plaintiff incurred to obtain those therapies. Therefore, this portion of plaintiff’s judgment was not supported by evidence.
(4) The court affirmed the trial court's award of attorney fee mediation sanctions under MCR 2.403 in the amount of $14,200, which included 71 hours of work performed by a second attorney who assisted plaintiff’s lead counsel at trial. The court rejected defendant's contention that mediation attorney fees are limited to a reasonable fee for a single attorney. The court stated,
"To limit a prevailing party's ability to collect litigation costs from a single attorney is contrary [to the purpose of the mediation sanction rule], because it would restrict the party's cost to a fee charged by a single attorney, even though the party incurred costs related to work performed by several members of the law firm on the case.... We conclude that a reasonable attorney fee awarded as a cost under MCR 2.403(0)(6) may include the fees for work performed on plaintiff's case by different attorneys within the firm."
The court also went on to affirm the trial court's ruling awarding plaintiff an attorney fee calculated at the hourly rate of $200 per hour. The court stated, "Under these facts, we cannot say that the trial court abused its discretion when it awarded plaintiff costs for the fee of the second attorney who participated at the trial."
The court also made certain other modifications and adjustments with respect to the calculation of other specific portions of the judgment, but those aspects of the decision were based upon the factual record developed at trial, as opposed to rulings of law.
