Michigan Court of Appeals; Docket Nos. 121616 and 123235; Published
Judges Doctoroff, Maher, and Cavanagh; Unanimous; Opinion by Judge Doctoroff
Official Michigan Reporter Citation: 190 Mich App 686; Link to Opinion 
STATUTORY INDEXING:
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Calculating Attorney Fees Based on Contingent Fee [§3148]
Penalty Attorney Fees on Appeal [§3148]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this unanimous published Opinion by Judge Doctoroff, the Court of Appeals held that the trial court erred in not awarding attorney fees for services provided after trial and on appeal in a claim for attorney fees under §3148 of the No-Fault Act based upon an unreasonable delay or refusal to pay benefits.
In this case, the Court of Appeals, on an earlier appeal (Item No. 1220), held that the defendant, Auto Club, had unreasonably delayed in making payment of personal injury protection benefits and remanded the case for recalculation of penalty interest and judgment interest. The Court of Appeals also ordered the trial court to award reasonable attorney fees to plaintiff. On remand, the trial court ordered actual attorney fees at the rate of $75 per hour for services rendered up to and including the day before trial. The court denied plaintiff’s request for additional attorney fees on remand, which included time devoted to the actual trial and time for services rendered on appeal.
The Court of Appeals reversed this holding of the trial court and held that §3148 requires that the trial court take into consideration the totality of the circumstances of the case, including evidence related to the time, labor, and expenses involved in advising and representing plaintiff at trial and on appeal. Where the statute does not place any restrictions on the recovery of attorney fees and does not limit attorney fees to services rendered at the trial court level, plaintiff is entitled to an award of attorney fees for services rendered at the trial and on appeal.
The court rejected plaintiff’s argument that the trial court abused its discretion in setting the hourly rate of $75 per hour and failing to consider the contingency fee arrangement. The record below established that plaintiff had sought attorney fees based upon the time and labor expended by counsel and not based upon a contingency fee agreement.
