Michigan Court of Appeals; Docket No. 169943; Unpublished
Judges Neff, McDonald, and Nelson; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Presumption or Unreasonableness [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals rendered several significant holdings concerning the right to recover attorney fees under §3148 of the statute in situations involving an unreasonable denial of benefits.
Shortly after plaintiffs automobile injury, she underwent an independent medical examination (IME) at defendant's request. After this examination and an internal claim review, defendant determined that plaintiff was entitled to medical benefits. Approximately two years later, defendant assigned a new claims adjuster to the plaintiffs file, who then immediately stopped payment of plaintiff s benefits and ordered additional records regarding plaintiffs condition. After receipt of those records, the new adjuster sent the records to a new "IME" doctor with whom the new adjuster was "familiar." This IME physician did not physically evaluate the plaintiff, but rather simply reviewed her records and recommended that plaintiffs claims be denied. Without further review or medical authority, the new adjuster continued the denial of benefits.
After a jury returned a verdict in plaintiffs favor, the trial court agreed with plaintiffs contention that the defendant's denial of benefits was unreasonable within the meaning of §3148 of the statute. In this regard, the court noted:
"The trial court, in granting plaintiffs request, concluded that it was unreasonable for defendant's claims adjuster to, in essence, deny payment of plaintiff s claim without examining the plaintiff, and without the benefit of prior medical advice. The court also, without actually making a finding of bad faith, questioned the claims adjuster's choice of doctors who, the court noted, agreed with the claims adjuster's decision to deny plaintiffs claims in a cursory manner."
The court went on to say that in situations where benefits have been delayed or denied, there arises a "rebuttable presumption of unreasonableness, and it is the insurer's burden to justify the delay or refusal." The court affirmed the notion that a trial court's award of attorney fees under §3148 can only be disturbed if it is "clearly erroneous" which means that after review of the entire record on appeal, the Court of Appeals is "left with a definite and firm conviction that a mistake has been committed." The court stated:
"On the basis of the record as set forth above, we are not left with a definite and firm conviction that a mistake was made. Simply stated, we cannot conclude that the defendant met its burden of disproving unreasonableness. Defendant paid plaintiffs benefits for two years and halted the payments only on the decision of a claims adjuster who made her decision in the face of professional medical advice to the contrary. Although defendant was able to obtain a medical opinion in its favor, the record bears out the trial court's conclusion that by the time that opinion was obtained, the decision to deny plaintiff further benefits had been made." .
