Michigan Court of Appeals; Docket #258731; Unpublished
Judges Whitbeck, Zahra, and Donofrio; 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 Rehabilitation [3107(1)(a)]
Allowable Expenses: Reasonable Necessity Requirement [3107(1)(a)]
Replacement Service Expense Benefits: Nature of the Benefit [3107(1)(c)]
Requirement That Benefits Were Unreasonably Delayed or Denied [3148(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the denial of plaintiff’s motion for a directed verdict in this action for first party benefits, finding the jury did not err when it determined the care rendered to plaintiff’s minor son was not related to the closed head injury he sustained in a motor vehicle accident. Plaintiff’s son sustained a closed head injury in a motor vehicle accident for which he received inpatient rehabilitation services from Communicare. Defendant refused to pay for the son’s care, believing the treatment was unrelated to the child’s injuries. Plaintiff, therefore, filed this action for personal injury protection benefits. Plaintiff also sought an injunction to prevent defendant from further denying benefits. The trial court granted a preliminary injunction and ordered an expedited trial. The jury determined plaintiff was entitled to payment for case management and legal services but denied plaintiff’s claim for replacement services, attendant care services and the inpatient rehabilitation services. The court then set off plaintiff’s judgment against defendant’s counterclaim for recoupment of the costs it paid to Communicare.
On appeal, plaintiff first argued that he was entitled to a directed verdict because there was no issue of fact the rehabilitative care at Communicare was necessary. The Court of Appeals disagreed and affirmed, finding that evidence of the child’s pre-accident behavior, his recovery from his head injury, his improved grades and behavior and subsequent return to poor behavior, were factors the jury properly considered when it determined that inpatient rehabilitation was not necessary. In this regard, the court stated:
“The critical question is whether there was sufficient evidence presented to create a question of fact regarding the reasonableness and necessity of the Communicare expense. We agree with the trial court the evidence regarding Bradley’s pre-accident behavior, his apparent recovery from the head injury, his improved grades and behavior with constant monitoring, and his subsequent return to poor behavior, were all factors that the jury could weigh in making its determination whether Bradley’s post-accident bad behavior was related to his head injury suffered in the accident. . . . Although plaintiff presented expert medical testimony to the contrary, the trial court did not err in finding that a question of fact existed for the jury. Thus, the trial court properly denied plaintiff’s motion for a directed verdict.”
Plaintiff also argues the trial court improperly denied his motion for attorney fees under MCL 500.3148(1) because defendant unreasonably delayed payment of certain bills. The Court of Appeals again disagreed, reasoning that if plaintiff’s attorney had not represented at the hearing on the motion for the preliminary injunction that defendant could set off payment it made to Communicare from currently owed benefits, defendant would not have delayed payment of those benefits. In so finding, the court reasoned:
“The trial court ordered, without a hearing, that defendant pay Communicare expenses it disputed based in part on plaintiff counsel’s representation that defendant could set-off these benefits from currently-owed benefits. There is no indication that defendant would have delayed payment of currently-owed benefits had plaintiff not sought such extraordinary relief. Indeed, defendant stipulated that it owed these benefits. Under these circumstances, we cannot conclude that the trial court clearly erred in finding that defendant reasonably delayed payment.”
