Cheboygan County Circuit Court; Docket No. 77-003166-NI(B); Unpublished
Judge Richard G. Boyce
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
Calculating Attorney Fees Based on Contingent Fee [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In a written Opinion, Cheboygan County Circuit Judge Richard G. Boyce dealt with the question of whether an insurance company who cut off no-fault benefits had acted "unreasonably" within the meaning of §3148, thus entitling the plaintiff to a reasonable attorney fee. The plaintiff in this case had sustained a compression fracture of the C-S vertebra in an auto accident in June of 1975. Defendant Hartford Insurance Company terminated plaintiff's no-fault benefits in November of 1975 on the basis of a written medical report submitted by plaintiff’s treating physician indicating "no objective evidence of problem." The report noted that the plaintiff was continuing to experience physical difficulties and was wearing her cervical collar even though her doctor did not feel it was necessary. The treating physician had referred the plaintiff to another doctor for further evaluation. Apparently there were two other reports in December of 1975 indicating continuing physical difficulty but concluding there was not objective evidence substantiating the level of complaint.
Judge Boyce ruled that the question of whether or not a termination of no-fault benefits is "unreasonable" must be decided based upon the information on hand and available to the insurance company at the time of the termination. In holding that the no-fault company's conduct was "unreasonable" Judge Boyce noted:
"Lack of objective evidence does not mean there is no subjective evidence. Orthopedic surgeons may justifiably rely upon x-rays, range of motion, pinprick sensation, etc., but the patient may feel pain and be disabled without such objective findings being present Hartford had to make a decision based on that report and whatever other information it had. It presumably knew that Mrs. Fondaw had suffered a compression fracture of the cervical vertebra and that there were undoubtedly soft tissue injuries associated with this trauma…. The question of her ability to return to work is not mentioned in any of these reports. We can assume she was cleared to return to work — that is something we would expect a doctor to state specifically if he was asked. Hartford could not make an informed decision based upon these reports. Some additional information was needed…. Based upon this information, we cannot conclude it was reasonable to cut off her benefits."
Upon finding that the insurance company's termination of benefits was "unreasonable" the Circuit Court awarded an attorney fee in the amount of $5,500 which was one-third of the plaintiff’s recovery pursuant to plaintiff’s contingent fee contract with her attorney.
[Author's Comment: The case above was actually settled prior to trial for $15,000 and the question of attorney fees pursuant to §3148 was submitted to the court on briefs, depositions, etc. for decision.]
