Michigan Court of Appeals; Docket No. 58323; Unpublished
Judges Gillis, Wahls, and Bell; Unanimous
Official Michigan Reporter Citation: Not Applicable: Link to Opinion 
STATUTORY INDEXING:
Calculating Attorney Fees Based on Contingent Fee [§3148]
TOPICAL INDEXING:
Extra Contractual / Mental Anguish Damages
CASE SUMMARY:
In this unanimous Opinion by Judge Bell, the Court of Appeals reversed a portion of a jury verdict in favor of plaintiff against defendant no-fault insurer on plaintiff’s claim that the defendant's conduct constituted the tort of "intentional infliction of emotional distress." In reversing this portion of the verdict, the Court held that the plaintiff’s complaint had failed to state a cause of action for this particular tort. Rather, the complaint alleged only that defendant's failure to pay no-fault benefits caused plaintiff to suffer mental distress. In essence, plaintiff had "pled nothing more than breach of the insurance contract alone; and, therefore, plaintiff has failed to state a claim for mental distress upon which relief can be granted.
However, the Court upheld that portion of the jury verdict which awarded plaintiff her principal no-fault benefits, double interest on those benefits and an attorney fee in the amount of $39,281.90. The amount of the attorney fee represented one-third of the principal no-fault benefits plus interest. In upholding the attorney fee award, the Court noted that the trial judge had been provided with sufficient information regarding the handling of the claim to apply the sue part test set forth in Liddell v DAIIE, item number 380, and affirmed by the Supreme Court in Wood v DAIIE, item number 535. The Court noted that the plaintiff’s attorney had submitted an affidavit indicating that more than 1,000 hours of work had been expended on the file. In additions the Court of Appeals noted that the trial court had an opportunity to observe the trial, witness the work of plaintiff’s counsel, was familiar with the results achieved, and was cognizant of the difficulty of the case. Thus, the trial court's award of attorney fees was not "clearly erroneous" and was affirmed on appeal.
Finally, in refusing to overturn that portion of the verdict which compensated plaintiff for replacement services expenses under §3107(b), the Court noted that the issue had not been properly preserved for appeal. However, the Court did comment, "We do note, however, that replacement service benefits are properly recoverable, even if performed by members of plaintiff’s family."
