Michigan Court of Appeals; Docket No. 189268; Unpublished
Judges Holbrook, Jr., White, and Danhof; 2-1 (with Judge White Dissenting in Part and Concurring in Part); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Bona Fide Factual Uncertainty / Statutory Construction Defense [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam Opinion, the Court of Appeals reversed the trial court's award of attorney fees under §3148 of the No-Fault Act, where a bona fide factual uncertainty bearing on coverage was presented at trial.
The plaintiff brought suit seeking first-party coverage in the amount of $404,250, and following a jury trial, the plaintiff was awarded $34,750 in damages for a portion of the benefits claimed by plaintiff. The trial court found that the insurer was liable for attorney fees because the jury had found that certain claimed services were in fact covered. However, the Court of Appeals, citing McCarthy v Auto Club Insurance Association, 208 Mich App 97 (1994) (Item No. 1752), noted that the scope of inquiry under §3148 is not whether the insurer is ultimately held responsible for a given expense, but whether its initial refusal to pay the expense was unreasonable.
Here, the testimony at trial showed there was a disagreement as to whether the claimed services were due to a traumatic brain injury sustained in an automobile accident, or were as a result of the plaintiff’s alcoholism and/or schizophrenia. Since a bona fide question of factual uncertainty regarding whether the problems for which plaintiff was being treated were related to his traumatic brain injury, the Court of Appeals held that an award of attorney fees was inappropriate under §3148.
Judge White concurred in part and dissented in part. Since the defendant insured did not pay one of the claimed charges until shortly before trial, and that the jury awarded 100% of another set of charges, Judge White would uphold the trial court's determination that the refusal to pay was unreasonable. However, Judge White would find that the Court abused its discretion in determining the amount of the fee, and that in consideration of the result obtained, the amount of the claimed fee was excessive.
