Michigan Court of Appeals; Docket No. 192527; Published
Judges Cavanagh, Reilly, and White; Unanimous (with Judge White Concurring); Per Curiam
Official Michigan Reporter Citation: 224 Mich App 724; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses: Incurred Expense Requirement [§3107(1)(a)]
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
State Workers Compensation Benefits [§3109(1)]
Coordination with Other Health and Accident Medical Insurance [§3109a]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous published per curiam Opinion, the Court of Appeals rendered two significant holdings concerning payment of attendant care benefits under §3107(1) of the no-fault statute and the interplay with the workers' compensation set off provisions of §3109(1) of the act.
The plaintiff in this case sustained a severe closed head injury in a work-related accident. She was provided attendant care 24 hours per day, 7 days per week by her parents. Under the workers' compensation statute, compensation for attendant care rendered by family members was limited to 56 hours per week. However, reimbursement for attendant care rendered by commercial agencies was not limited to 56 hours per week. Plaintiff’s parents did not want to hire a commercial agency to provide attendant care for the plaintiff for the remaining 112 hours per week, as they preferred to render those services themselves. Plaintiffs PIP insurer, defendant Auto Owners, refused to pay for the remaining 112 hours of attendant care on the basis that this was a benefit that could have been obtained under the workers' compensation act, and therefore, defendant was entitled to a set off under §3109(1). Moreover, defendant Auto Owners argued that it had no liability for any attendant care rendered by the parents because expenses for these services had not been "incurred'' as the injured person had never been billed for these services. The Court of Appeals rejected both of these arguments.
With regard to the governmental set off argument, the Court of Appeals referred to the Supreme Court's decision in Morgan v Citizens Insurance Company of America [Item No. 1269], and held that defendant was not entitled to a governmental set off because the care provided by the parents was not duplicative of the care that could have been obtained through a commercial agency.
Citing Morgan, the court stated,
"The no-fault act preserves to injured persons a reasonable choice of hospitals and physicians although this may add to the premium cost of no-fault insurance. The no-fault insurer cannot, in the name of reducing the premium cost, require an injured person to obtain medical service from a particular provider. Section 3109(1) does not mandate the offset of all governmentally provided benefits, only duplicative benefits." The court then went on to say, "Because the Supreme Court has held, with respect to offsetting benefits under §3109(1), that a no-fault insurer cannot require an injured person to obtain medical service from a particular provider, defendant in this case cannot require plaintiff to choose a commercial agency to provide nursing and attendant services. The Legislature chose to limit the benefit available under the WDCA for attendant or nursing care provided by certain family members. Because of this limitation, the benefit available under the WDCA is not duplicative of the benefit plaintiff seeks to recover under the no-fault act."
The court distinguished the Supreme Court decisions in Tousignant v Allstate Insurance Company [Item No. 1630] and Owens v Auto Club Insurance Association [Item No. 1631], as those cases dealt with coordinated benefits under §3109a and not governmental benefits under §3109(1). Therefore, the plaintiffs in those cases voluntarily agreed to limit their medical care choices in exchange for a reduced insurance premium. No such choice existed in this case, where the 56 hour limitation exists as a result of statute regardless of plaintiff s choice to coordinate coverages.
The Court of Appeals also rejected defendant's "incurred expense" argument, and referred to earlier decisions in Visconti v DAIIE [Item No. 201 ], VanMarter v American Fidelity Fire Insurance Company [Item No. 517], Reed v Citizens Insurance Company [Item No. 1597], and Botsford General Hospital v Citizens Insurance Company [Item No. 1553], and held "in each of those cases, this court implicitly held that 'charges' or 'expenses' had been 'incurred' without requiring that the insured was actually billed by the family. We decline to create such a requirement in this case. As in Botsford General Hospital, supra, whether the plaintiff was entitled to collect the value of the services and the determination of the value are matters properly left for the jury to decide."
