Michigan Court of Appeals; Docket No. 136526; Unpublished
Judges Jansen, White, and Talbot; _________;Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Calculating Attorney Fees Not Based on Contingent Fee [§3148]
Insurer’s Right to Penalty Attorney Fees for Fraudulent / Excessive Claims [§3148(2)]
TOPICAL INDEXING:
Evidentiary Issues
Extra Contractual / Mental Anguish Damage
Michigan Consumer Protection Act (MCPA – MCL 445.901, et seq.)
CASE SUMMARY:
In this unpublished per curiam Opinion, the Court of Appeals affirmed a judgment entered for plaintiff for personal protection insurance benefits, but vacated the trial court's order regarding costs and remanded the case to resolve an issue as to attorney fees.
Plaintiff was injured in 1974 when the motorcycle upon which he was riding was struck by a truck. Plaintiff sustained severe injuries, including a broken pelvis, fractures of his right fibula and tibula, fractures of his lumbar spine, and internal injuries. Plaintiff had an uncoordinated policy of no-fault insurance issued by the defendant. In addition, his medical expenses associated with the automobile/motorcycle accident injuries were also subject to coverage through Medicare.
In 1988, defendant required plaintiff to submit to two medical examinations. As a result of those medical examinations, defendant terminated coverage from February 17, 1988 onward. Plaintiff then filed suit for personal protection insurance benefits incurred from that date forward. Plaintiffs complaint also included counts for intentional infliction of emotional distress and a violation of the Michigan Consumer Protection Act.
The jury awarded plaintiff benefits in the amount of $25,876, less a setoff in the amount of $4,255 for overpayments made by defendant. The trial court also awarded plaintiff penalty interest, statutory interest and a $500 attorney fee. Plaintiff appealed and defendant cross-appealed.
The Court of Appeals first addressed the trial court's dismissal of plaintiff s claims for intentional infliction of emotional distress and violation of the Michigan Consumer Protection Act for a failure to state a claim, pursuant to MCR 2.106(C)(8). While evidence had been presented that the defendant had engaged in a pattern of conduct in delaying payment, making erratic payments, refusing to pay benefits, and conducting surveillance, which allegedly caused plaintiffs wife to leave him and resulted in severe emotional distress, the Court of Appeals nonetheless found the allegations did not rise to "a level of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress." Likewise, the Court of Appeals found that the Michigan Consumer Protection Act does not apply to a dispute between an insured and an insurer and, therefore, the trial court was correct in dismissing plaintiffs cause of action brought pursuant to that statute.
Plaintiff raised several evidentiary issues at trial. First, plaintiff challenged the trial court's exclusion of testimony of his physician regarding the hospital review procedures for Medicare eligibility. The Court of Appeals found this error harmless, as other testimony regarding this process was admitted. Second, plaintiff challenged the trial court's admission of evidence regarding Medicare payments, despite plaintiffs objection under the collateral source rule. However, the Court of Appeals found that the evidence was properly admitted as defendant sought its introduction for purposes of proving malingering (see Nasser v ACIA). Furthermore, defendant introduced the evidence to show plaintiffs motivation to incur medical expenses in order to obtain economic benefit through a double recovery from both Medicare and the no-fault carrier. A number of other evidentiary objections of plaintiff were not properly preserved for appeal, and therefore, not considered by the court.
Plaintiff also challenged the introduction of surveillance tapes compiled at the direction of defendant, because defendant did not timely disclose the tapes. The discovery cutoff date in the case was April 16, 1990. Plaintiff had filed the request for production of documents, including videotapes, on May 16,1990. Defendant did not respond to the request. On August 3 and 8, 1990, defendant produced the videotapes. Plaintiff filed a motion in limine, seeking exclusion of the videotapes because they were not timely produced. However, the trial court allowed the introduction of the videotapes because the plaintiff had never filed a motion to compel discovery. The Court of Appeals held that the trial court did not abuse its discretion in denying the motion.
Plaintiff argued that he was entitled to a new trial because the jury verdict was inconsistent with the evidence. Specifically, the jury awarded plaintiff benefits for expenses incurred with his physician while he was hospitalized, but did not award plaintiff benefits for the hospitalization charges. The Court of Appeals found that such a result was not inconsistent because the jury could have concluded that the hospitalization was not necessary, although the physician's services were needed. Plaintiff also claimed he was entitled to coverage for home care provided by his wife, because the evidence that the services were necessary was uncontradicted. However, the Court of Appeals found that, in fact, the evidence was not uncontradicted, as plaintiffs physician did not prescribe the home care services. Accordingly, the Court of Appeals found that the trial court did not abuse its discretion in denying plaintiffs motion for a new trial.
Defendant also appealed the amount of the setoff granted by the trial court. Defendant had claimed that it had made an overpayment in the amount of $6,760, but that the trial court limited the setoff for overpayments in the amount of $4,255. The Court of Appeals affirmed the trial court's ruling in this regard because certain overpayments sought were not properly before the trial court.
Finally, the parties had raised issues on appeal regarding attorney fees and costs. The trial court had awarded $500 in attorney fees to plaintiff, without giving any specific reason or justification. The court vacated the order as to attorney fees and remanded the matter to the trial court to make a determination as to the proper amount of attorney fees, taking into account the factors set forth in the case of Wood v DAIIE, 413 Mich 573 (1982) (Item No. 453). The Court of Appeals also directed the trial court to determine whether defendant was entitled to attorney fees in the event that portions of plaintiff s claim were fraudulent or so excessive as to have no reasonable foundation. Furthermore, the Court of Appeals vacated the trial court's order awarding costs to plaintiff, as such was made after plaintiffs claim of appeal was filed, when the trial court no longer had jurisdiction to make such a ruling. However, the Court of Appeals held that the issue of costs may be raised and addressed by the trial court on remand.
Judge White wrote a separate opinion, stating his concurrence with the majority opinion on the exclusion of plaintiffs physician's testimony regarding the Medicare eligibility review issue, because he too believed the error was harmless. Judge White also joined the majority opinion in all other respects.
