Michigan Court of Appeals; Docket #319934; Unpublished
Judges Beckering, Markey, and Shapiro; 2-1 (Judge Shapiro concurring); Non-unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Concurrence
STATUTORY INDEXING:
Calculation of Survivor’s Loss Benefits and Maximums [§3108(1)]
Reasonable Proof Requirement [§3142(2)]
Requirement That Benefits Were Overdue [§3148(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion (with Judge Shapiro concurring), the Court of Appeals issued several rulings:
1) a plaintiff who received survivor’s loss benefits pursuant to MCL 500.3108 was not entitled to penalty interest under MCL 500.3142 and attorney fees under MCL 500.3148, because she failed to present sufficient proof of the amount of loss and, therefore, defendants’ delay in paying benefits was reasonable;
2) defendants’ motion for involuntary dismissal after a bench trial was properly granted because “plaintiff failed to produce reasonable proof of the amount of economic loss”; and
3) plaintiff was not entitled to funeral and burial expenses as PIP benefits pursuant to an amendment of MCL 500.3107(1), because that amendment is not applied retroactively.
This was an action for survivor’s loss benefits brought by plaintiff after her husband died in a trucking accident. Defendants had issued no-fault policies to both plaintiff and the decedent, and defendants disputed which insurer had priority to pay benefits. While defendants agreed that plaintiff suffered a loss, they disagreed as to the amount of that loss. Two defendants — Amerisure and Lancer — ultimately agreed to pay benefits. Plaintiff then filed this action for attorney fees under §3148 and for penalty interest under §3142, claiming defendants unreasonably delayed benefits. Plaintiff dismissed her claims against Lancer, and moved for summary disposition on her claims against Amerisure and State Farm. The trial court denied plaintiff’s motion, finding there was insufficient evidence regarding reasonable proof of loss. After a bench trial, State Farm and Amerisure moved for involuntary dismissal. The trial court granted the motion, finding the benefits did not become “overdue” until plaintiff presented reasonable proof of loss and the amount of that loss. The trial court held the tax returns, pay stubs, and accounting documents that plaintiff submitted were insufficient to make such a determination.
The Court of Appeals held that the evidence plaintiff submitted was insufficient, thereby justifying any delay by the insurers in paying survivor’s loss benefits. As a result, the court held that plaintiff was not entitled to penalty interest under §3142(2) and attorney fees under §3148(1).
Finding that the tax returns, pay stubs and accountant’s report were insufficient proof of the amount of plaintiff’s loss, the Court of Appeals said:
“[T]here were significant questions concerning [the decedent’s] income and tax information, as well as any potential offset for Social Security benefits; this information was necessary for a determination of economic benefits under MCL 500.3108. … These unanswered questions about pertinent financial information left questions of fact as to the issue of whether plaintiff presented reasonable proof of the amount of the loss. The trial court did not err when it declined to grant summary disposition to plaintiff in light of the uncertainty noted above. … Likewise, with respect to replacement services and whether plaintiff presented reasonable proof of the amount of loss, the trial court did not err in denying summary disposition to plaintiff. … [W]e cannot conclude that the trial court, when viewing the totality of the evidence, clearly erred in finding that plaintiff failed to present reasonable proof of the amount of the economic loss claimed. … Plaintiff only presented one document — the CPA report — that provided a definitive amount of benefits she claimed. The amount listed was rendered questionable in light of the numerous assumptions — some of which were taken without any support in accompanying documentary evidence. … The totality of the deficiencies in the documents produced by plaintiff and of the testimony at trial leads us to conclude that the trial court did not clearly err in finding that plaintiff failed to produce reasonable proof of the amount of economic loss.”
The Court of Appeals further rejected plaintiff’s claim that an amendment to §3107(1), regarding funeral and burial expenses as PIP benefits, should have been applied retroactively to plaintiff’s case. In this regard, the court said that “there could be no PIP benefits that were overdue, meaning that there could be no statutory interest or attorney fees premised on overdue PIP benefits.”
In a separate concurring opinion, Judge Shapiro said if the standard of review was de novo, he would conclude that the accountant’s report that was submitted constituted reasonable proof of economic loss.
