Michigan Court of Appeals; Docket #310731; Unpublished
Judges O’Connell, Wilder, and Meter, 2-1 (Judge O’Connell dissenting); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Dissent
STATUTORY INDEXING:
Rules and Procedures of Catastrophic Claims Association [§3104(7)]
Allowable Expenses for Attendant Care [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this non-unanimous unpublished per curiam Opinion (with Judge O’Connell dissenting) involving plaintiff’s claim for attendant-care benefits under MCL 500.3107(1)(a), the Court of Appeals held the trial court: 1) improperly ordered the Michigan Catastrophic Claims Association (MCCA) to produce its actuarial tables, and 2) erroneously compelled the depositions of the MCCA executive director and a claims representative.
Plaintiff was severely injured in an auto accident and had several times litigated the issue of attendant-care benefits with defendant insurer, which was servicing the claim on behalf of the MCCA. Plaintiff served a subpoena for the production of certain documents from the MCCA, including the actuarial models that the MCCA used in the valuation of claims. Plaintiff asserted that a letter from the MCCA in another case proved that the actuarial models were relevant to this lawsuit. In response, the MCCA explained the actuarial models were not used to determine the value of individual claims but were used “to project the number of persons who will sustain catastrophic injuries in motor vehicle accidents in the next year and the amount of money needed in today’s dollars to pay those claims in the future, based on historical data.” The trial court granted plaintiff’s motion to compel, ordering the MCCA to produce the actuarial models and compelling the depositions of the MCCA executive director and a claims representative.
The Court of Appeals reversed, finding the trial court made no findings to support its conclusion that the actuarial tables were relevant to the suit at hand. The court said:
“That an actuarial model can be used, and has been used, to estimate the present cost of a future claim has no bearing upon whether plaintiff needs attendant care, the skill level of the needed caregiver, and the fair market value of the caregiver’s services.”
Regarding the order to compel the depositions of the MCCA executive director and a claims representative, the Court of Appeals stated:
“[P]laintiff argues for relevance by citing the deposition testimony of one of defendant’s claims managers, who agreed that MCCA ‘needs to be involved’ when attendant-care rates are adjusted up or down. However, this ‘involvement’ is mandated by statute; indeed, member insurance companies are required to report to MCCA any claim that ‘may reasonably be anticipated to involve the association ….’ MCLA 500.3104(7)(b). The claims manager herself went on to state that ‘[the MCCA] guidelines … require[] us as part of the reimbursement process and reporting process that we have to [sic].’ MCLA 500.3104(7)(g) indicates that, in some instances, MCCA may take over the adjustment of a claim. MCCA attached to its motion for reconsideration an affidavit from Freeland in which she states that MCCA had not in fact exercised its right to take over the adjustment of plaintiff’s claim. Moreover, plaintiff has produced insufficient evidence that MCCA did take over the adjustment. Section 10.08 of the MCCA’s Plan of Operation states, in part: ‘If, in the judgment of the Board, a claims procedure or practice of a member is inadequate to properly service the liabilities of the Association or jeopardizes the interests of the Association, the Association may, at the member’s expense, undertake or contract with another person (including another member) to adjust, or assist in the adjustment of, a claim or claims for the member creating a potential liability to the Association.’ There is simply no evidence here of MCCA’s Board of Directors having made the decision to take over or assist in the adjustment of plaintiff’s claim. The mere fact that defendant and MCCA are complying with statutory reporting requirements and also with United States Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n, 484 Mich 1, 18-21; 795 NW2d 101 (2009), is insufficient to show that MCCA is adjusting the claim. Accordingly, we conclude that the trial court abused its discretion in ordering the depositions at issue.”
In a separate dissenting opinion, Judge O’Connell said he would affirm the trial court’s decision because it was “within the range of reasonable and principled outcomes.”
