Michigan Court of Appeals; Docket No. 63539; Published
Judges Kelley, Gribbs, and Tahvonen; Unanimous
Official Michigan Reporter Citation: 130 Mich App 34; Link to Opinion 
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
12% Interest Penalty on Overdue Benefits – Nature and Scope [§3142(2), (3)]
Interest Penalty Additive to Judgment Interest [§3142]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
Calculating Attorney Fees Not Based on Contingent Fee [§3148]
TOPICAL INDEXING:
Civil Judgments and Interest (MCL 600.6013)
CASE SUMMARY:
In this unanimous Opinion, the Court of Appeals affirmed a summary judgment holding that plaintiff was entitled to recover no-fault benefits under §3105(1) when his motorcycle collided with the rear-end of a parked pickup truck on a dark unlit one-way street The accident occurred when plaintiff was unable to change lanes to avoid striking the pickup truck during a passing maneuver because of the presence of a moving automobile which was immediately adjacent to plaintiff’s motorcycle at the time of the accident.
The basis of the holding was that plaintiff's accident arose out of the ownership, operation, maintenance or use of the moving automobile. The Court of Appeals stated in pertinent part:
"We believe... that a causal connection between the use of a motor vehicle and the plaintiff’s injuries was established. In Kangas v Aetna, the Court used the phrases 'incident to,' 'flowing from,1 and 'having connection with' the use of a motor vehicle. Moreover, causation has been couched in terms of the injury being 'foreseeably identifiable with the normalise of a motor vehicle"... "In the instant case... the plaintiff was in the left hand lane to pass a motor vehicle. Moreover, the plaintiff was forced to temper his actions once he spotted the parked pickup truck in view of the fact that the car was in the lane to his immediate right [The automobile] was positioned next to the plaintiff because [the automobile] was proceeding in a manner foreseeably identifiable with the normal use of an automobile. This is not a case where injuries arose from a 'non-normal' use of a motor vehicle. Indeed, Bradley's injuries arose from the normal perils of driving in traffic"
The Court also upheld a trial court's award of attorney fees in the amount of $7,604 under §3148 of the Statute. In affirming the award of attorney fees, the Court noted that the defendant insurance company completely ignored the legal basis of plaintiff’s claim. The insurance company evaluated the claim based solely upon the parked vehicle provisions of §3106. It based (revised 3/31/84) its denial of benefits under §3106(l)(a) claiming that the pickup truck was not "unreasonably parked." However, plaintiff’s counsel had repeatedly advised defendant prior to suit that the claim was based on §3105(1) as it was an injury arising out of the use of the moving automobile and not a §3106 parked vehicle case. The Court stated,"... the crucial fact is that in seeking information from the investigating police officer, DAIIE never requested any information pertaining to a claim under §3105(1) or the plaintiff’s allegations that another moving vehicle caused his injury."
In awarding attorney fees, the trial court conducted an evidentiary hearing wherein expert testimony was taken regarding each of the six factors pertaining to the reasonableness of an attorney fee outlined in Wood v DAIIE, (item number S3S). Testimony was introduced to plaintiff’s counsel had expended 132.6 hours representing plaintiff through the motions for summary judgment Expert testimony before the trial court established that $80 per hour would be a reasonable hourly rate under the circumstances. Testimony was also introduced that plaintiff had a contingent fee arrangement with his attorney. Even though the Court ultimately based its attorney fee award on the contingent fee agreement, it did not take the agreement at face value but considered all of the Wood factors. The Court of Appeals held that the trial court had not abused its discretion. Furthermore, the Court also rejected defendant's arguments that attorney fees should not have been awarded for certain items of work which had been performed by law clerks which might have involved a greater amount of time than was necessary. The Court stated, "It is not the function or an appellate court to review every item submitted. Rather, the award will be upheld absent an abuse of discretion as to the reasonableness of the award (not each individual item)."
Finally, the Court affirmed an award of interest under §3142 of the No-Fault Act as well as 12% interest under the RJA. Consistent with several other previous opinions, the Court held that the reasonableness of an insurer's refusal to pay benefits is of no consequence regarding the award of interest. The Court stated "the only basis for denying interest is where the claimant did not submit reasonable proof of the fact of injury and the amount of loss sustained."
This decision affirms, in its entirety, the trial court's opinion in item number 468. Leave to appeal was not sought.
