Michigan Court of Appeals; Docket # 324864; Unpublished
Judges Murray, Stephens and Riordan; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [§3107(1)(a)]
Allowable Expenses: Reasonable Charge Requirement [§3107(1)(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving attendant-care benefits under MCL 500.3107(1)(a), the Court of Appeals held the trial court erred by not instructing the jury on comparable commercial nursing agency rates, because plaintiff-guardian was a registered nurse who had established a corporate entity that employed family members to provide 24-hour attendant care to her brain-injured son.
Plaintiff, a registered nurse, was the guardian of her son, Tommy, who sustained a traumatic brain injury in a car crash at 18 years old. Plaintiff formed a corporate entity that employed family members and a friend to help care for Tommy, who required around-the-clock services. Plaintiff also acted as Tommy’s case manager, although he had one. Because the attendant-care prescription did not include specific instructions, a representative of Home-Owners Insurance Company, the applicable no-fault insurer, determined that the supervision provided to Tommy was the lowest level required and could be fulfilled by a home-health aide. As a result, Home-Owners paid an hourly rate of $11.44 for daytime hours and $7.40 for nighttime hours. Plaintiff filed this action, claiming that $30 was the reasonable hourly rate for attendant-care services. Home-Owners disputed this rate, arguing that Tommy’s caregivers did not have specialized medical training and that plaintiff had acknowledged that Tommy’s behavioral training therapy was outside the home setting. At trial, the jury was instructed that comparable agency rates were irrelevant. As a result, the jury found that plaintiff was entitled to a reasonable hourly rate of $11.44, but found the nightly rate of $7.40 was unreasonable and awarded a nighttime rate of $11.44. A judgment of $27,317.69 was entered for plaintiff. Plaintiff appealed.
The Court of Appeals reversed that part of the trial court’s ruling pertaining to the reasonable hourly rate for attendant care under §3107(1)(a). In so doing, the Court relied on its prior decision in Hardrick v Auto Club Ins Ass’n, 294 Mich App 651 (2011) and on the Michigan Supreme Court’s ruling in Douglas v Allstate Ins Co, 492 Mich 241 (2012).
In Hardrick, the Court of Appeals noted the panel held that the market rate for agency-provided attendant-care services was relevant to establishing a rate for family-provided attendant-care services. In Douglas, the Court pointed out the Michigan Supreme Court said that an agency rate may be relevant, especially when the caregiver has “overhead and administrative costs similar to those of a commercial agency.”
In light of Hardrick and Douglas, the Court of Appeals ultimately held that the trial court in this case erred in determining that the commercial nursing agency rates were completely irrelevant to the issue of reasonable charge for family-provided attendant care. The Court stated in pertinent part:
“Hence, as to the issue of the appropriate rate for family members providing home attendant care services to Tommy, the trial court erred in instructing the jury that agency rates were irrelevant and not to be considered, and in refusing to instruct as plaintiff requested on that issue.”
Furthermore, the Court of Appeals rejected Home-Owners argument that the failure to instruct the jury on agency rates was harmless error. The Court said:
“We cannot accept that argument because it would have been very difficult — if not impossible — for the jury to accept plaintiff’s theory when the court instructed it not to consider the exact evidence that would have allowed plaintiff to succeed on that theory. Nor do we agree with defendant that plaintiff’s alleged failure to request reimbursement from defendant for these business related expenses bars these claims. Plaintiff is not seeking reimbursement of those specific costs, but is instead seeking a higher rate for attendant care services, in part because of those business costs. And obtaining a higher rate for attendant care is exactly what was at issue. We therefore reverse and remand for a new trial only on the issue of the appropriate rate for Tommy’s attendant care services.”
The Court of Appeals went on to find that the evidence of plaintiff’s earnings as a registered nurse was properly excluded and was irrelevant under MRE 401 and MRE 402, “because the issue for trial was essentially whether Tommy’s attendant care providers should be paid at the rate of a home health aide or the higher rate of a life skills trainer.”
The Court further found that, even if excluding such evidence was an abuse of discretion, it was harmless error because the jury knew about plaintiff’s employment as a registered nurse and because plaintiff admitted that the care being provided did not require a nursing degree, and so a higher rate was not necessitated simply because plaintiff was also a practicing nurse.
Moreover, the Court of Appeals held the special verdict form modified by Home-Owners may have been improper because “it is possible that the language contained in the special verdict form addressing the different rates reminded the jury of this fact and allowed the jury to make its award in the bifurcated way rates had been determined.” However, because the case was being remanded for a new trial, the Court concluded that it need not address whether the verdict form entitled the plaintiff to a new trial on that basis alone.
Accordingly, the Court of Appeals affirmed in part, reversed in part and remanded the case for a new trial.
