Michigan Court of Appeals; Docket No. 72621; Published
Opinion by Justice Levin
Official Michigan Reporter Citation: 425 Mich 140; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses for Room and Board [§3107(1)(a)]
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
Allowable Expenses: Reasonable Charge Requirement [§3107(1)(a)]
Allowable Expenses: Causation Requirement [§3107(1)(a)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
TOPICAL INDEXING:
Extra Contractual / Mental Anguish Damages
CASE SUMMARY:
This Opinion by Justice Levin deals with a no-fault insurer's obligations to pay for various in-home care expenses under §3107(a) rendered by family members to a catastrophically injured child. The notable aspects of the majority opinion are as follows:
1. First, in some ways, the majority opinion is most noteworthy for the issue it declined to decide. That issue dealt with the obligation of the no-fault insurer to pay for the cost of certain "room and board expenses" for a catastrophically injured person who would otherwise require institutional care but for the fact that his family elected to provide that care in-home. The Court of Appeals decided this question by ruling that "products, services or accommodations which are as necessary for an uninjured person as for an injured person are not allowable expenses," and, therefore, because "food is as necessary for an uninjured person as for an injured person, food is not ordinarily an allowable expense for an injured person cared for at home, unless the nature of the injury makes a special diet reasonably necessary." The majority opinion refused to specifically address that issue on the grounds that it had not been properly presented for appeal. In deferring a specific ruling on this point, the majority opinion stated:
"It appears on review of the record made in the trial court and of the briefs in the Court of Appeals that the question whether food, shelter, utilities, clothing, and other such maintenance expenses are an allowable expense when the injured person is cared for at home was not presented in the trial court or, indeed, argued in the Court of Appeals. We do not address that question. The opinion of the Court of Appeals on that question shall not be regarded as of precedential force or effect."
Justice Boyle dissented on this question and wrote that the Court of Appeals' opinion on this issue should be specifically disavowed. Justice Boyle stated, "I cannot agree with the Court of Appeals' broad determination that 'products, services, or accommodations' which are as necessary for an uninjured person as for an injured person are not allowable expenses for purposes of MCLA 3.107(a). . . .The test adopted by the Court of Appeals — that any expense equally necessary to an uninjured person is not an allowable expense — is unwieldy and unworkable. The cost of institutional care for John Maniey included, for example, food, an item as necessary to uninjured persons as John. I find no principled basis for deciding that food provided to John at home is not as much an 'allowable expense' as the food provided in a licensed medical care facility."
2. Second, the majority opinion specifically affirmed the Court of Appeals' ruling that the child's parents were not precluded from recovering for various in-home care expenses simply because they were legally obligated to support their minor son while he resides at home. The court held, "a no-fault insurer is not relieved of the obligation to pay no-fault benefits for products, services, and accommodations provided a child which, if the injured person were an adult, are allowable expenses within the meaning of §3107. Although the parent of the child might be obligated to pay for such products, services or accommodations as 'necessaries essential to the health and comfort of the child' if there was not a no-fault act, there is a no-fault act. Under that act, the question is whether the product, service, or accommodation is an allowable expense, not whether someone else might also be legally obligated to pay such expense under some other provision or rule of law."
3. Third, the court affirmed the jury's verdict that the plaintiff’s minor son required private duty nurses' aides in addition to the services provided by his parents. In addition, the Supreme Court upheld the jury's factual determination mat such unskilled nursing care was necessary for 16 hours per day at a cost of $8 per hour.
4. Fourth, the Supreme Court affirmed the trial court's use of a declaratory judgment procedure ruling that these particular in-home care expenses were necessary and allowable and the specific dollar amount that would be allowed for those expenses. Although the no-fault insurer is not required to pay for those expenses until they are "actually incurred," the trial court is permitted to enter a declaratory judgment obligating a no-fault insurer to pay for such expenses once they have been actually incurred. The court held that although the parents and the insurance company "are entitled to a redetermination from time to time of the amounts properly allowable for nurses' aides or for room and board, including the services of the Manleys," the insurance company is not entitled to relitigate the question of the necessity of these services, "absent some evidence mat there has been a substantial change in the facts and circumstances" or "absent a change in law."
5. Fifth, the Supreme Court affirmed the trial court's award of attorney fees under §3148 of the no-fault statute on the basis that the trial court properly decided that the defendant unreasonably refused to pay for in-home nursing care.
6. Sixth, the Supreme Court agreed with the Court of Appeals that the trial court properly directed a verdict on plaintiff’s claim for mental anguish damages.
Justice Boyle also disagreed with the majority regarding the use of declaratory judgment procedure and the award of attorney fees. She would hold that the trial court does not have authority to determine a set amount for future nursing care and in-home services.
