Michigan Court of Appeals; Docket #321348; Docket #321511; Unpublished
Judges Murray, Meter, and Owens; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses for Home Accommodations [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving accommodation and attendant care expenses for a catastrophically injured claimant, the Court of Appeals issued several rulings:
1) summary disposition was improperly granted to defendant Farmers Insurance because, under MCL 500.3107(1)(a), the evidence was insufficient to determine whether the claimant's apartment had been modified for her care, recovery, or rehabilitation, such that the rent was an "allowable expense'";
2) Farmers' motion in limine regarding other evidence offered in support of attendant care expenses was properly denied by the trial court because it was basically the summary disposition motion "recast" as a motion in limine; and
3) Farmers was improperly ordered to produce its entire litigation file because this ruling was premature, since the trial court did not first determine whether the work-product doctrine applied and, if it did, whether Farmers had waived it.
This case is the fourth lawsuit between these parties. Plaintiffs were the co-guardians of Rajmonda Prendushi, who was rendered a quadriplegic in an auto accident. After the accident, Rajmonda and plaintiffs relocated to an apartment, where plaintiffs provided attendant care services to Rajmonda. Defendant Farmers, as Rajmonda's no-fault insurer, paid rent for the apartment and also understood the apartment would be modified to accommodate Rajmonda. However, a disagreement arose about whether the modifications were completed and Farmers stopped paying the rent. Rajmonda had also been prescribed additional attendant care, bringing her regimen to 30 hours a day. Plaintiffs sought reimbursement from Farmers for this expense, but Farmers claimed proper documentation was not provided. Plaintiffs filed an action seeking payment for rent and for the additional attendant care being provided. Farmers moved for summary disposition, asserting that: 1) rent was not a reasonable expense because the apartment had not been modified; 2) plaintiffs did not provide sufficient proof of the additional attendant care expenses and the need for Farmers to keep paying rent; and 3) Farmers had already fairly compensated plaintiffs for certain attendant care expenses. Farmers also filed several motions in limine regarding the evidence that plaintiffs offered in support of the attendant care claim, including an affidavit from a case manager. The trial court denied Farmers' motions.
The Court of Appeals held that neither party adequately supported their summary disposition motions regarding whether payment of rent was an "allowable expense" under §3107(1)(a). In this regard, the Court said:
"Our review of the record shows that both parties failed to properly support their positions at summary disposition on the issue of whether plaintiffs' rent is an 'allowable expense.' Accordingly, we vacate that portion of the trial court's summary disposition ruling. Because defendant's other challenges lack merit, we affirm the rest of that ruling as well as the court's order denying defendant's motion in limine."
The Court of Appeals went on to provide guidance to the trial court on remand, for determining whether the rent was an allowable expense. The Court explained that neither party disputed that housing was an ordinary cost of life and, instead, the issue was whether the apartment had been modified for Rajmonda's care, recovery or rehabilitation. The Court observed:
"[A]bsent any evidence that an otherwise ordinary apartment has been modified for those needs, Farmers cannot be liable for ... rent. And while we are sensitive to plaintiffs' claim that they used an unsuitable apartment as a stopgap while they located suitable housing, Farmers' total liability for the rent still hinges on whether the apartment was equipped with handicap modifications, either in a combined or integrated fashion. ... Again, only the latter is fully compensable. As we previously concluded, however, on this record there was insufficient evidence (with some of the evidence simply conflicting) as to whether the apartment was modified for Mrs. Prendushi's care, recovery, or rehabilitation, such that the rent — or the cost for accommodation, depending on its scale and scope — are an 'allowable expense.' The trial court must reconsider this issue on remand."
Regarding the dispute over the rate for attendant care services, the Court of Appeals noted that plaintiffs relied on testimony of a case manager as to the payment rate of skilled nurses. The Court looked to Douglas v Allstate Ins Co, 492 Mich 241 (2012), for guidance, as well as other rulings where the rate of pay for attendant care was based on the services performed, and not the provider's credentials. The Court said:
"[W]here plaintiffs have presented evidence that at least some of Mrs. Prendushi's caregivers' tasks are akin to those provided by licensed professionals and plaintiffs have established the amount of compensation typically received for those services, a genuine issue of material fact exists on this issue."
As for the trial court's order requiring Farmers to provide its entire litigation file, the Court of Appeals held the trial court erred in failing to protect privileged work product from discovery, as required by MCR 2.302(B)(3)(a). The Court noted that, while Farmers did not identify the scope of the privilege, Farmers had not waived its privilege. Therefore, Farmers had to establish the scope of its privilege on remand, the Court concluded.
