Michigan Court of Appeals; Docket #286923; Unpublished
Judges Donofrio; Sawyer, and Owens; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Attendant Care [3107(1)(a)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the trial court Order denying defendants’ motion for JNOV or a new trial, finding there was sufficient evidence that attendant care services were incurred.
In this case, a jury found that defendant Amica Mutual Insurance Company was liable to plaintiff for $161,420 for personal protection insurance benefits which included attendant care. On appeal, Amica argued there was insufficient evidence to establish that attendant care services were incurred because the injured plaintiff’s wife had no expectation of payment. Amica also argued that the forms detailing the attendant care services were insufficient because they were completed retroactively and did not include expectation of charges. Further, Amica argued that plaintiff’s wife merely stated that she performed household replacement services for the injured person, not attendant care.
In affirming, the court noted that evidence was provided that there was attendant care on a daily basis from the date of the accident through February 2008 based on forms the plaintiff’s wife completed. For each day, plaintiff’s wife indicated the number of hours she cared for plaintiff, which ranged from 10 to 12 hours per day and the tasks she performed. The need for this care was corroborated by the testimony of two of plaintiff’s physicians, one who stated that he recommended 6 to 8 hours of daily care and another who recommended additional care beyond that time frame. The evidence established that the tasks plaintiff’s wife performed included bathing, grooming, meals, supervision, car transfers, medication, locomotion, and help with stairs. On most of the forms plaintiff’s wife completed, she indicated she had not been paid. In addition, she did not indicate how much she was requesting for her services. However, she did testify that she was requesting whatever the jury found was reasonable. The court further noted that there is no requirement that attendant care forms be completed contemporaneously with the care provided. Although there is a question of credibility regarding whether a caregiver can actually recall accurately the care provided on a day-by-day basis, that is a question for the fact finder. As to whether the plaintiff needed to assign a dollar amount to the care provided, she is only required to have a reasonable expectation of payment. The assignment of a specific dollar amount may be evidence of expectation of payment, but even without it, the forms and the caregiver’s testimony created a legitimate inference that she had a reasonable expectation of payment and that the attendant care services were therefore properly incurred. In this regard, the court stated:
“Amica argues that there was insufficient evidence to establish that attendant care services were incurred because there was no expectation of payment. Amica contends that the forms detailing the attendant care were insufficient because they were retroactively completed. Further, Amica argues that there is no evidence of what the charges were. Moreover, Amica contends that the testimony of plaintiff’s wife, Miriam Salman (“Miriam”), merely related to instances of household replacement services, not attendant care.
Viewing the evidence and all legitimate inferences in the light most favorable to plaintiff, who is the nonmoving party, there was evidence of attendant care provided on a daily basis by Miriam at the time of the accident on December 31, 2005, through February 2008, based on forms that she filled out detailing this care. For each day, Miriam indicated the number of hours, ranging from 10 to 12 hours, she spent caring for plaintiff and the tasks she performed. the need for this care was backed up by the testimony of Dr. Maaz, who recommended six to eight hours of care, and Dr. Samet, who recommended that additional care beyond that time frame was needed. These tasks performed by Miriam included assisting plaintiff with bathing, grooming, meals, supervising him, car transfers, medication, locomotion, and stairs. On most of the forms, Miriam indicated that she had not been paid for these services. Otherwise she left this section blank. Miriam did not indicate how much she was requesting for her services on the forms. However, she did testify that she was requesting whatever the jury thought was reasonable.
Amica argues that because these forms were not filled out contemporaneously with the care provided, they do not constitute sufficient evidence that plaintiff incurred attendant care charges. However, there is no requirement that these forms be filled out contemporaneously. Rather, there is a permissible inference that Miriam had a reasonable expectation of payment because she filled out the forms going back to the day of the accident. Certainly there is a question of credibility regarding whether Miriam could accurately recall the care she provided for plaintiff on a daily basis, but the question of credibility is generally for the fact-finder to decide. . . . Further, as plaintiff argues, there is no requirement that Miriam assign a dollar amount to the care she provided. Rather, she is required to have a reasonable expectation of payment. Assigning a specific dollar amount is further evidence of a reasonable expectation of payment, but even without it, the forms and Miriam’s testimony create a legitimate inference that she had a reasonable expectation of payment and attendant care expenses were therefore incurred.”
