Michigan Court of Appeals; Docket #305345; Unpublished
Judges Whitbeck, Meter, and Donofrio; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Reasonable Proof Requirement [§3142(2)]
Requirement That Benefits Were Overdue [§3148(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam unpublished Opinion involving attendant-care benefits pursuant to MCL 500.3107(1)(a), a motion for additur or new trial after a jury verdict, and an award of penalty attorney fees under MCL 500.3148(1), the Court of Appeals issued numerous rulings:
1) the trial court erroneously entered a declaratory judgment after a jury verdict, finding that plaintiff was entitled to $17 an hour for 17 hours per day for attendant-care services she had provided;
2) on remand, the trial court must enter a judgment in plaintiff’s favor for any yet-unpaid attendant-care services;
3) plaintiff was not entitled to additur or a new trial because, while the special verdict form that was used may have been flawed, the jury’s decision was not “outside the range of reasonable and principled outcomes”;
4) it was proper to apportion penalty attorney fees under §3148(1) to the lawyer’s time spent handling only the summary disposition and directed verdict motions, rather than the entire case; and
5) on remand, for purposes of determining attorney fees, the trial court must consider whether plaintiff’s no-fault insurer unreasonably refused to pay, or unreasonably delayed payment, on one remaining hospital bill.
Plaintiff filed a claim against defendant for PIP benefits after her husband was injured in a motorcycle accident. The jury reached a verdict using a special verdict form. Afterward, the trial court issued a declaratory judgment, giving plaintiff $17 an hour for 17 hours each day for attendant-care services that she had provided her husband. The trial court denied plaintiff’s motion for additur or a new trial, rejecting plaintiff’s claim that the jury ignored uncontroverted evidence. The trial court also awarded plaintiff attorney fees under §3148(1), but only awarded fees for the attorney’s time relating to motions for summary disposition and a directed verdict. The trial court did not award attorney fees for plaintiff’s claim based on attendant-care services.
Regarding plaintiff’s attendant-care claim and the trial court’s declaratory judgment in that regard, the Court of Appeals said:
“The trial court’s decision to effectively alter the jury verdict on its own initiative was erroneous. … Nothing in the jury verdict unambiguously indicate that plaintiff’s right to $17 an hour for ‘various services she provide[d] to and on behalf of’ Roger applied only for 17 hours a day. However, plaintiff is also incorrect in suggesting that she was automatically entitled to $17 an hour for 24 hours each day. No interpretation of the jury’s verdict permits such a daily payment, and the law is clear that, while the determination of future benefits is a permissible use of a declaratory judgment, … insurers may not ‘be charged for payment until they [have] the bills to substantiate the charges,’ …. The word ‘services’ in question 1 of the special verdict form unambiguously indicated that plaintiff was required to assist Roger in some way before she was entitled to compensation. Because the right to payment of $17 an hour was the only future right against defendant to which plaintiff was entitled by the plain meaning of the jury verdict, the sole limitation on that right having been the requirement that plaintiff first provide a service, the declaratory judgment was erroneous. Because Roger has died, making a declaratory judgment unnecessary, the trial court shall enter a judgment in favor of plaintiff for any yet-unpaid services.”
Regarding the denial of plaintiff’s motion for additur or a new trial, the Court of Appeals said the special verdict form was “ambiguous” but not “erroneous.” The court stated:
“A jury verdict may not be set aside if there is any logical way of interpreting it. … The jury may have assumed that plaintiff slept or otherwise did not provide services to defendant for an average of 9.12 hours (38 percent) of each 24-hour period claimed for services. … [W]itness credibility is also within the province of the jury, … and the jury was not obligated to credit plaintiff for all the hours she claimed. Accordingly, the trial court’s denial of plaintiff’s motion for additur or a new trial was not ‘outside the range of reasonable and principled outcomes,’ … and therefore it was not an abuse of discretion.”
Regarding the trial court’s award of penalty attorney fees under §3148(1), the Court of Appeals distinguished this case from Cole ex rel Robinson v Detroit Automobile Inter-Ins Exchange, 137 Mich App 603 (1984). The Cole court had ruled that attorney fees for the entire claim should have been assessed, even though the insurer unreasonably delayed only part of the payment. Drawing a distinction between Cole and this case, the Court of Appeals said in footnote 7 of the opinion:
“Under the facts of this case, with a trial having occurred with respect to attendant-care services, with the clear dispute regarding the hourly rate for those services, and with the finding (not challenged by way of a cross-appeal) that payment for certain other expenses had been unreasonably delayed, we find the allocation proper, and there is no evidence that it was ‘too difficult’ to allocate the fees.”
Pointing out the purpose of awarding fees pursuant to §3148(1) is to ensure prompt payment to the insured, the Court of Appeals said:
“The trial court found that its prior rulings regarding plaintiff’s motions for partial summary disposition and a directed verdict ‘establish[ed] that [d]efendant unreasonably delayed or refused to make payment of benefits that were due, thereby entitling plaintiff to an award of attorney fees’ under the no-fault act. The court granted plaintiff’s motion for attorney fees with respect to fees incurred related to the motions for partial summary disposition and a directed verdict and denied the motion with respect to fees incurred related to other claims, including attendant-care services. … There is no evidence that defendant delayed or refused payment.”
The Court of Appeals, in footnote 6 of the opinion, said it could be “inferred” the trial court denied attorney fees related to plaintiff’s attendant-care services because there was a “reasonable dispute” regarding the amount that was owed. In conclusion, the court said the denial of attorney fees related to attendant-care services was consistent with the purpose of the §3148(1):
“Because plaintiff was compensated promptly, and a good-faith dispute clearly existed regarding the appropriate hourly rate for plaintiff’s attendant-care services, we hold that plaintiff is not entitled to attorney fees under MCL 500.3148(1) for that claim.”
The Court of Appeals further noted there was one unpaid hospital bill at the time of trial and that defendant did not dispute the amount of that bill. Thus, the court concluded:
“[W]e remand this case for the trial court to determine whether the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
