Michigan Court of Appeals; Docket #313690; Unpublished
Judges Donofrio, Saad, and Meter; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Penalty Attorney Fees and Other Court Rule Sanctions [§3148]
General/Miscellaneous [§3148]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held that the trial court erred in failing to award case evaluation sanctions in favor of the defendant in reliance upon the provisions of the case evaluation rule, MCR 2.403(O)(11) which, under certain circumstances, allows the court to “refuse to award actual costs” in the interest of justice. The Court of Appeals also determined that the trial court erred in failing to apportion the no-fault attorney fee award which the court rendered in favor of the plaintiff, where the evidence was clear that some of the hours devoted by plaintiff’s counsel were dedicated solely to the recovery of benefits related to care of plaintiff’s cervical injury which the Court of Appeals, in a previous appeal, had determined could not be considered as part of any attorney fee award under MCL 500.3148.
In this second appeal of this matter, plaintiff sustained injuries consisting of neck-related complaints and foot injuries from a 1988 car accident. In the first trial, claims were made for cervical care and surgery to the cervical spine, as well as podiatric care. These claims were heard by a jury in the first trial and the jury found defendant liable for plaintiff’s medical expenses, but concluded that these expenses were not “overdue” within the meaning of MCL 500.3145. The trial court granted plaintiff’s motion for partial judgment notwithstanding the verdict (JNOV), finding that the payments were, in fact, overdue and granting plaintiff’s motion for attorney fees with an award of $123,020 in favor of the plaintiff. The adjusted Verdict after the court’s JNOV was determined to be $33,479.41. Because case evaluation had awarded an amount of $33,000, and because both parties had rejected the case evaluation, the trial court determined that plaintiff was entitled to case evaluation sanctions under MCR 2.403(O)(1). However, in the first appeal, the Court of Appeals reversed the award of JNOV related to the cervical care and specifically held that, on remand, plaintiff was not to recover any attorney fees related to her cervical care bills. This reversal resulted in a further adjusted verdict of $26,132.24. Since this post-appeal adjusted verdict was not more favorable to the plaintiff, the Court of Appeals in this second appeal that the defendant insurer was entitled to case evaluation sanctions, unless an exception applied. The Court of Appeals in this second appeal rejected the trial court’s interpretation of MCR 2.403(O)(11) which provides that “if the verdict is the result of a motion as provided by subrule (O)(2)(c), the court may, in the interest of justice, refuse to award actual costs.”
In this case, the Court of Appeals held that MCR 2.403(O)(2)(c) does not provide for relief in the interest of justice in situations where the verdict arguably is the result of “both a motion and a jury verdict.” Accordingly, the trial court erred in denying defendant case evaluation sanctions.
The Court of Appeals also held that the trial court, on remand, was bound by the “law of the case” doctrine and was obligated to follow the Court of Appeals’ explicit ruling that, on remand, plaintiff was not to recover any attorney fees related to her cervical bills. In distinguishing Tinnin v Farmers Ins Exch, 287 Mich App 511 (2010), the court stated that Tinnin does not stand for the blanket proposition that apportionment of attorney fees is not allowed. On the contrary, Tinnin shows that apportionment was unnecessary in that case, because all of the attorney fees were sufficiently related to the recovery of the overdue benefits. In the instant case, plaintiff’s attorney conceded by affidavit that some of his hours were dedicated solely to the recovery of cervical care benefits. Thus, on remand, the court ordered that the trial court consider in its award of no-fault attorney fees under MCL 500.3148, only those attorney fees that are “sufficiently related” to securing the overdue benefits of plaintiff’s podiatric care.
Finally, the Court of Appeals considered plaintiff’s cross-appeal that the attorney fee award in favor of the plaintiff should have included appellate time. The Court of Appeals noted that recoverable attorney fees can include attorney fees for services on appeal. Bloemsa v Auto Club Ins Ass’n (After Remand), 190 Mich App 686 (1991). However, in this case, the court held that the first appeal did not involve any services to recover any overdue benefits. Rather, the sole issues in the first appeal related to plaintiff’s entitlement to penalty interest, attorney fees, and statutory costs. Thus, any services rendered by plaintiff’s attorney in that appeal were not related to the “recovery of overdue benefits” and, therefore, such services are outside the scope of MCL 500.3148, the statutory authorization for attorney fee sanctions.
In light of the above, this matter was affirmed in part, reversed in part, and remanded for proceedings consistent with the court’s Opinion.
