Michigan Court of Appeals; Docket No. 187873; Unpublished
Judges Hoekstra, Sawyer, and Pickard; 2-1 (with Pickard Concurring); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
General / Miscellaneous [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam Opinion, the Court of Appeals affirmed a jury verdict in plaintiff’s favor awarding only past non-economic damages in a third-party liability case and remanded the case to the trial court for a calculation of attorney fee sanctions awarded pursuant to the mediation court rule, where the attorney for the entitled party submitted fees at the rate of $85 per hour, but when the paying party requested a hearing as to the reasonable of the fees, increased the rate to SI 25 per hour. The court also affirmed the trial court's dental of plaintiff s motion for additur or partial new trial, where the jury's conclusion that plaintiffs injury was of a non-continuing nature was supported by the evidence.
This third-party residual liability action was tried on the issue of damages only, as the defendant admitted negligence and that his negligence was the proximate cause of the plaintiff’s damages. Plaintiff claimed that the accident caused reflex sympathetic dystrophy in his right hand. While the jury awarded plaintiff damages for past losses, it declined to make an award for future non-economic damages. The Court of Appeals found that the evidence supported the jury's finding, because plaintiff was able to do everything he did before the accident occurred, and since there was evidence presented that the condition could have been caused by a previous bone chip in that hand.
Plaintiff also appealed the award of attorney fees to defendant as mediation sanctions, because such were at an hourly rate in excess of those fees that were actually incurred. The defendant originally submitted his attorney fee claim on the basis of an $85 per hour rate, but when plaintiff requested a hearing to require the defendant to establish the reasonableness, defendant then resubmitted the claim at $125 per hour, which the court eventually awarded. The Court of Appeals found that the award of the higher rate punished plaintiff for exercising his right to request a hearing, and therefore, the trial court abused its discretion in awarding the higher rate. The case was remanded to the trial court for purposes of recalculating the award of attorney fees at the rate of $85 per hour.
Judge Pickard concurred, and noted that the attorney fees awarded for mediation sanctions are not limited by the amount of actual attorney fees incurred. Judge Pickard suggested the following approach in determining the reasonableness of an attorney fee to be awarded as mediation sanctions:
"First, the trial judge should determine if the actual attorney fee charged to the client was reasonable. If that fee is reasonable, that amount should be awarded. Second, if the actual fee charged to the client is unreasonably high or unreasonably low for the services necessitated by the rejection of mediation, then MCR 2.403(0)(6) allows the trial judge to determine a fee which would be reasonable under the circumstances. This process would insure that reasonable fees are taxed to the appropriate party without punishing that party."
