Michigan Court of Appeals; Docket #314189; Unpublished
Judges Cavanagh, Owens, and M.J. Kelly; 2-1 (Judge Kelly concurring and dissenting in part); Non-unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Conc./Dissent
STATUTORY INDEXING:
Allowable Expenses for Conservatorships and Guardianships [§3107(1)(a)]
Penalty Attorney Fees [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion (with Judge Kelly concurring and dissenting in part), the Court of Appeals vacated an award of conservator fees as PIP benefits under MCL 500.3107(1)(a), because the record was unclear regarding which of the conservator’s services related to the injured person’s “care, recovery, or rehabilitation.” As a result, the court remanded the case for a further determination of which services provided by the conservator were compensable under §3107(1)(a).
The claimant in this case, Carol Kowalski, sustained serious injuries in an auto accident, requiring the appointment of a conservator, plaintiff Darren Findling. Defendant Auto Club was Kowalski’s no-fault insurer and paid PIP benefits. When Auto Club refused to pay the conservator fees that were billed, plaintiff brought this action to recover those fees, in addition to penalty attorney fees under MCL 500.3148. Auto Club acknowledged it had an obligation to pay conservator fees, but claimed that not all the fees claimed by plaintiff were reasonably necessary for Kowalski’s “care, recovery, or rehabilitation” under §3107(1)(a). The trial court granted plaintiff’s petition for conservator fees.
The Court of Appeals reversed, finding the record was insufficient to make a determination on the reasonableness of the conservator fees. Therefore, the court remanded the case for a determination of which fees were reasonably necessary for the “care, recovery, or rehabilitation” of Kowalski.
Reiterating that conservator fees are compensable pursuant to In re Carroll (On Remand), 300 Mich App 152 (2013), the Court of Appeals held the record in this case was insufficient to determine whether plaintiff’s services comprised allowable expenses under §3107(1)(a). In this regard, the court said:
“In particular, we note that it appears from [plaintiff’s] billing summary and the record evidence that at least some of the guardian ad litem’s fees [plaintiff] attempted to recover were for services unrelated to Kowalski’s automobile accident injuries. That is, in 2011, [plaintiff] had sought to compel respondent to pay for certain services of the guardian ad litem, but the probate court denied the petition after concluding that there was no causal connection between the injuries sustained in the automobile accident and the services provided by the guardian ad litem for which payment was sought. We further note that [plaintiff’s] instant petition sought to compel payment of PIP benefits, as well as attorney fees and costs. However, we cannot determine from the probate court’s order whether attorney fees were awarded. Further, if attorney fees were awarded, we cannot determine whether they were awarded as an allowable expense under §3107(1)(a) or whether they were awarded under §3148(1), the attorney fee provision of the no-fault act.”
Therefore, the Court of Appeals vacated the trial court’s order awarding conservator fees to plaintiff. The court remanded for a determination of which services provided by plaintiff as conservator were allowable expenses under §3107(1)(a), and also whether he was entitled to penalty attorney fees under §3148(1).
In a separate concurring and dissenting opinion, Judge Kelly said he agreed with the treatment of the conservator’s services, except for those relating to a slip-and-fall incident involving Kowalski.
