Michigan Court of Appeals; Docket No. 286141; Published
Judges Beckering, Markey, and Borrello; unanimous; per curiam
Official Michigan Reporter Citation: 287 Mich. App. 511, Link to Opinion 
STATUTORY INDEXING:
Requirement that benefits were unreasonably delayed or denied [3148(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous per curiam opinion, which was decided on February 2, 2010 and approved for publication on March 11, 2010, the Court of Appeals held that the trial court properly awarded plaintiff over $64,000 in attorney fees and costs where the jury found that defendant unreasonably refused to pay plaintiff’s medical bills in the amount of $1,235, but rejected the plaintiff’s claim for attendant care expenses.
The plaintiff in this case fractured his right leg and sustained a mild closed-head injury when he was struck by a car while crossing the street. The neuropsychologist who diagnosed the closed-head injury, determined that plaintiff suffered from mild retardation and that his intelligence was borderline. For about one and one-half years after the accident, defendant reimbursed plaintiff for attendant care services and other medical expenses. Defendant discontinued medical benefits after two independent medical examinations (IME). It discontinued plaintiff’s physical medicine and rehabilitation (PM&R) after one doctor who performed an IME determined that plaintiff no longer needed ongoing physical therapy. However, the doctor did state that it would be reasonable for the plaintiff to continue to see a PM&R specialist on an as-needed basis. Defendant then discontinued plaintiff’s attendant care, after another doctor who performed an IME determined that plaintiff’s need for supervision was due to his pre-existing mental disabilities.
Plaintiff sued for reimbursement of the costs for the office visits with the PM&R specialist and for over $90,000 in unpaid attendant care. A jury found that plaintiff was entitled to payment of the PM&R bills and awarded plaintiff $1,235. The jury also found that the benefits were overdue under MCL 500.3142(2), and awarded $218.95 in no-fault interest. However, the jury found that plaintiff was not entitled to benefits for attendant care. The trial court then granted plaintiff’s motion for no-fault attorney fees under MCL 500.3148(1) and awarded plaintiff $57,690 in attorney fees and $9,651.67 in taxable costs.
On appeal, the court rejected defendant’s argument that it did not act unreasonably when it denied plaintiff’s claim because a bona fide factual dispute existed regarding causation and the amount of benefits owed to plaintiff. In rejecting the defendant’s claim, the court noted that although an insurer may rely on the medical opinion of its physicians in rejecting a claim for medical benefits, the IME doctor who stated that plaintiff was no longer in need of physical therapy testified in his deposition that he believed it was reasonable for plaintiff to continue to receive PM&R treatment as needed. Further, defendant’s claims adjuster agreed that had she been aware of the IME doctor’s opinion regarding PM&R treatment, she would not have denied the claim for PM&R. Therefore, the Court of Appeals concluded that the trial court properly found that defendant unreasonably refused to reimburse plaintiff for his PM&R treatment.
The court then rejected the defendant’s claim that the trial court abused its discretion when it awarded the full amount of attorney fees and costs that plaintiff sought, arguing that the bulk of plaintiff’s claim was for attendant care services, which the jury denied. Defendant argued that plaintiff’s claim for attendant care should be separated from plaintiff’s claim for PM&R treatment and that the fee should be apportioned. However, defendant provided no authority in support of its argument that a court should apportion attorney fees where a defendant unreasonably refused to pay certain benefits, even though its refusal to pay other benefits was found to be reasonable. In rejecting defendant’s argument, the court noted that in Moore v Secura Insurance, 482 Mich 507; 759 NW2d 833 (2008), the Supreme Court determined that plaintiff was not entitled to attorney fees for one week of work loss benefits that were overdue because plaintiff did not attribute any of the time spent on the case to the amount of benefits that the jury found to be overdue. The court found that Moore was distinguishable because, unlike in Moore, the trial court found that all of the attorney’s time for which plaintiff sought compensation was related to securing his overdue benefits. Therefore, the court held that, “[b]ecause the language of MCL 500.3148(1) does not unambiguously require the apportionment defendant advocates, we hold the trial court did not abuse its discretion in refusing to apportion plaintiff’s award of attorney fees.”
