Michigan Court of Appeals; Docket No.292649; Published
Judges Beckering, Whitbeck, and M.J. Kelly; Unanimous: By Judge M.J. Kelly
Official Michigan Reporter Citation: Forthcoming; Link to Opinion 
On April 26, 2011, the Michigan Court of Appeals released a unanimous published Opinion finding that the conservator’s services at issue were compensable under MCL 500.3107(1)(a) Link to NFRBO Summary
On April 18, 2012, the Michigan Supreme Court held the Application for Leave to Appeal in abeyance pending the decisions of Johnson v Reccaand Douglas v Allstate Link to Order
The Opinion summarized below is in response to the Michigan Supreme Court’s Order, dated December 5, 2012, that VACATED the Judgment of the Court of Appeals and REMANDED FOR RECONSIDERATION in light of the court’s decisions in Johnson v Reccaand Douglas v AllstateLink to Order
STATUTORY INDEXING:
Allowable Expenses for Conservatorships and Guardianships [§3107(1)(a)]
Allowable Expenses: Causation Requirement [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This unanimous published Opinion by Judge M. J. Kelly was released by the Michigan Court of Appeals following the Michigan Supreme Court’s Order dated December 5, 2012, that vacated the Court of Appeals Judgment dated April 26, 2011, and remanded the case back to the Court of Appeals with instructions to re-examine whether the conservator services at issue were related to an injured person’s “care, recovery or rehabilitation,” under MCL 500.3107(1)(a), as interpreted by the Supreme Court’s decisions in Johnson v Recca, 492 Mich 169 (2012) and Douglas v Allstate Ins Co, 492 Mich 241 (2012).
On remand, the Court of Appeals held that the conservator services at issue were not compensable under MCL 500.3107(1)(a), because those services were simply for ordinary and necessary services for the injured person and there was no showing by the plaintiff that the services were directly related to the injured person’s care, recovery, or rehabilitation. However, the Court of Appeals noted that certain services not specifically performed by the conservator were compensable under MCL 500.3107(1)(a), because it was demonstrated that those services, such as managing the injured person’s financial needs, were extraordinary and peculiar to injured person’s status as an injured person, and, therefore, were compensable under MCL 500.3107(1)(a).
In reaching its holding, the Court of Appeals closely examined the Supreme Court’s decisions in Griffith v State Farm Mut Auto Ins Co, Johnson v Recca, and Douglas v Allstate Ins Co.
With respect to Griffith, the court explained the following:
“. . . under the decision in Griffith, a no-fault insurer is only obligated to pay benefits for care—as that term is used in MCL 500.3107(1)(a)—when the product, service or accommodation was necessitated by the injury; that is, if the product, service, or accommodation would not have been necessary but for the injuries sustained in the accident, then it is compensable as an allowable expense for the injured person’s care under MCL 500.3107(1)(a).”
With regard to the Supreme Court’s decision in Johnson v Recca, the Court of Appeals explained in pertinent part:
“. . . under the decision in Johnson, even when a particular service is necessary because of the injured person’s injuries, that service will not constitute an allowable expense if the service was “required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself.” Johnson, 492 Mich at 180. In such cases, the service is a replacement service subject to the provisions of MCL 500.3107(1)(c) and cannot serve as the basis for recovery under MCL 500.3135(3)(c). Id. at 180, 197.”
With regard to the Supreme Court’s decision in Douglas v Allstate, the Court of Appeals stated in pertinent part:
“The decision in Douglas clarified that an injured person may be entitled to compensation for services necessitated by his or her injury and performed for his or her care as an allowable expense under MCL 500.3107(1)(a), and that such services may be compensable even when performed by a family member; the Court, however, reiterated that the services provided by the family member must be carefully distinguished from the types of services that constitute a replacement service under MCL 500.3107(1)(c).”
The court then synthesized the decisions in Griffith, Johnson, and Douglas and stated there are several criteria that must be established before a particular product, service, or accommodation for an injured person’s care, recovery, or rehabilitation will be compensable as an allowable expense under MCL 500.3107(1)(a). These criteria include the following:
●The claim benefit must be “causally connected to the accidental bodily injury arising out of an automobile accident and the injury itself must arise from the ownership, operation, maintenance or use of a motor vehicle.”
●The benefit must be limited to those benefits that are for the injured person’s care, recovery, or rehabilitation, “which means that the product, service or accommodation must have been necessitated by the injury sustained in the motor vehicle accident.”
●The particular product, service, or accommodation cannot be for an ordinary product, service, or accommodation that was “required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself.”
Applying these criteria to the case, the Court of Appeals determined that some of the conservator’s services related to managing Carroll’s financial needs were extraordinary and peculiar to Carroll’s status as an injured person, and, therefore, were compensable under MCL 500.3107(1)(a). However, the Court of Appeals further noted that with respect to the specific conservator services at issue, those services were for ordinary and necessary household services that were not related to the Carroll’s status as an injured person. Accordingly, the Court of Appeals determined that trial court did not err when it determined that the no-fault insurer only had to compensate the conservator for the services he performed for the injured person that did not amount to replacement services under MCL 500.3107(1)(c). In this regard, the court stated:
“Consequently, consistent with Griffith, Johnson, and Douglas, if an injured person—by reason of his or her injuries—requires a service in order to ensure his or her proper care, and that service does not amount to a replacement service under MCL 500.3107(1)(c), it will be compensable under MCL 500.3107(1)(a). See Johnson, 492 Mich at 180; Douglas, 492 Mich at 262-264; Griffith, 472 Mich at 535. Here, many of Carroll’s financial management needs are extraordinary and peculiar to Carroll’s status as an injured person. And, because those needs are beyond those which would be ordinarily performed by a member of the household, they are compensable under MCL 500.3107(1)(a) as a service provided for Carroll’s care, recovery, and rehabilitation.
The trial court correctly determined that some of May’s services as Carroll’s conservator were compensable under MCL 500.3107(1)(a) and some were not because they were for ordinary and necessary household services that were compensable under MCL 500.3107(1)(c)and incurred more than three years after Carroll’s accident. Moreover, May did not challenge the trial court’s findings concerning the specific services that were compensable and the amount due for those services. Consequently, May has not identified any error warranting relief.”
