United States District Court, Eastern District of Michigan; Case #12-12428
Hon. Laurie J. Michelson
Official Michigan Reporter Citation: Not Applicable; Opinion Not Available 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses: Reasonable Necessity Requirement [§3107(1)(a)]
Replacement Service Expense Benefits: Nature of the Benefit [§3107(1)(c)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this written Opinion involving an insured’s claim for services provided by a certified nursing assistant, Federal Judge Laurie Michelson held that certain benefits claimed by the insured were replacement services under MCL 500.3107(1) and not recoverable, while others were allowable expenses. After making this distinction, Judge Michelson ruled that a jury had to determine whether various other benefits claimed by the insured were compensable as being “reasonably necessary” under §3107(1).
Plaintiff was injured when his motorcycle collided with a vehicle. Robin Foster, a certified nursing assistant, provided plaintiff in-home care and other services for plaintiff, including routine housekeeping, meal preparation, laundry, and so forth. Foster also drove plaintiff to doctor appointments, ran errands, occasionally helped him bathe, and helped manage his medications. Plaintiff filed an action against defendant no-fault insurer to recover payment for Foster’s services. However, defendant claimed the services were replacements services, and not attendant-care expenses, and therefore were not recoverable.
In ruling that some of Foster’s services were recoverable under §3107(1) and some were not, Judge Michelson said defendant’s attempt to reject all of the services that were provided was “too broad.” The judge said:
“The fact that Foster performed primarily replacement services does not preclude Plaintiff from receiving proper compensation for allowable expenses performed by Foster.”
Judge Michelson rejected defendant’s claim that some of Foster’s services were not recoverable because they weren’t reasonably necessary for plaintiff’s care, recovery, or rehabilitation. The judge said:
“Here, viewing the evidence in the light most favorable to the nonmoving party, it would be difficult to say ‘with certainty’ whether the medically-related services performed by Foster are reasonable and necessary. What is or is not reasonable and necessary for Plaintiff’s injuries in this case is a question for a jury, making qualification of these services inappropriate for summary judgment. Therefore, the Court will not grant Plaintiff’s motion for Partial Summary Judgment in its entirety.”
According to Judge Michelson, many of the provided services were replacement services and non-recoverable:
“This determination does not require a finding that the services are or are not reasonable necessary. … Defendant is entitled to summary judgment for replacement services that Foster provided … including preparing meals, pet maintenance, and other light housekeeping such as making the bed, organizing and cleaning the house, doing the laundry, and washing the dishes. But some of Foster’s other services may be allowable expenses, and Plaintiff may be entitled to recover for those. … [S]ervices that aid the injured person with their personal care, such as dressing and bathing, are allowable expenses. … But whether this was reasonably necessary for the care of Plaintiff’s injuries is for a jury to decide.”
Regarding the administration of plaintiff’s medication, Judge Michelson said this was an allowable expense, but noted that Foster’s involvement with this task was “limited.” Whether it was reasonably necessary for plaintiff’s care was also for a jury to decide, the judge said.
As for plaintiff’s transportation expenses, Judge Michelson said those expenses not directly related to plaintiff’s medical treatment were not allowable, as a matter of law.
In conclusion, the judge said:
“The Court finds that some tasks provided by Foster … are replacement services as a matter of law. But the Court finds that other tasks … could be allowable expenses. Therefore, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Partial Summary Judgment.”
