Michigan Court of Appeals; Docket #257301; Unpublished
Judges Hoekstra, Neff, and Davis; 2-1 (Judge Hoekstra dissenting); per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Handicapper Motor Vehicles [3107(1)(a)]
Requirement That Benefits Were Overdue [3148(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam opinion, the Court of Appeals affirmed summary disposition for plaintiff, finding plaintiff, a paraplegic, was entitled to a modified van. However, the court reversed the trial court’s award of the cost of the van and attorney fees, reasoning that because the plaintiff had not purchased the van, the expense was not incurred and, therefore, an allowable expense under the No-Fault Act. In finding the modified van was reasonably necessary, the court considered plaintiff’s “unique circumstances” under Davis v Citizens Insurance Company of America [RB #1556]. The court noted that for nearly a decade, plaintiff’s treating physician had prescribed a modified van, as did the occupational therapist recommended by defendant’s case manager. The court next determined that the trial court improperly awarded plaintiff the cost of the van. In so holding, the court cited Proudfoot v State Farm Mutual Insurance Company [Item No. 2389], where the Michigan Supreme Court stated that although a trial court may enter a declaratory judgment that an expense is necessary and allowable, the declaration does not obligate a no-fault insurer to pay until the expense is incurred.
In this case, plaintiff did not purchase the van. Therefore, under Proudfoot, the cost of the modified van is not an allowable expense for which defendant was obligated to pay. Likewise, because the defendant was not obligated to pay for the modified van because the expense had not been incurred, the trial court improperly awarded attorney fees. Under MCL 500.3148, attorney fees are available when an attorney represents a claimant in an action for which personal or property protection insurance benefits are overdue. Because the payment in this case never came due, it never became overdue. Thus, it was clear error for the trial court to award attorney fees and the award is reversed.
