RODNEY HOOVER V MICHIGAN MUTUAL INS
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STATE OF MICHIGAN
COURT OF APPEALS
RODNEY HOOVER and MAXINE HOOVER,
Conservators of the Estate of MICHAEL
HOOVER, a Developmentally Disabled Person,
FOR PUBLICATION
December 11, 2008
9:05 a.m.
Plaintiffs-Appellees,
v
No. 278237
Genesee Circuit Court
LC No. 86-085769-NZ
MICHIGAN MUTUAL INSURANCE
COMPANY, now known as AMERISURE
MUTUAL INSURANCE COMPANY,
Defendant-Appellant.
Advance Sheets Version
Before: Schuette, P.J., and Murphy and Fitzgerald, JJ.
MURPHY, J.
Defendant appeals the trial court’s order awarding plaintiffs personal protection insurance
(PIP) benefits under the no-fault act, MCL 500.3101 et seq., for various housing and living
expenses, as well as services, associated with the care of plaintiffs’ adult son, Michael Hoover.
Michael was injured as a child more than 20 years ago when struck by a motor vehicle operated
by a drunk driver and insured by defendant. Defendant also challenges the trial court’s
assessment of attorney fees and penalty interest. The trial court did not properly apply, in part,
our Supreme Court’s opinion in Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521;
697 NW2d 895 (2005), resulting in erroneous conclusions on several, but not all, of the expenses
and services at issue. Further development of the record under the framework set forth in
Griffith is appropriate with respect to expenses and services analyzed incorrectly by the court.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
In 1985, Michael Hoover, two years old at the time, was struck by a drunk driver and
suffered serious, life-altering injuries. Michael, now 25, is developmentally disabled from a brain
injury and is a quadriplegic, and he depends on a ventilator to breathe, all as a result of the
accident. In 2002, plaintiffs built a new home with a wing specifically constructed and designed
to accommodate Michael and his injuries. Alarms monitor Michael’s breathing, in-home nurses
working shifts around the clock provide medical care, he is fed puréed food (sometimes through
a feeding tube), a backup generator is in place in case of a disruption in power, Michael stays and
sleeps in a specialized bed, the home has an elevator for when he needs to be moved to the
basement, and Michael lives in a sterile environment closely surrounded by various medical
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instruments and equipment. See the photograph appended to this opinion. It is beyond dispute
that absent these accommodations and the care of his parents and others, Michael would need to
be institutionalized.
The parties have litigated the payment of PIP benefits off and on over the years, dating
back to 1986, when plaintiffs first commenced suit for the recovery of benefits. Defendant’s
general obligation to provide PIP benefits was settled early in the litigation, and the court has
adjusted the amount of benefits payable for home care and living expenses through the years. In
2002, plaintiffs built a specially designed house with accommodations necessary to properly care
for Michael. Pursuant to a settlement agreement, defendant paid approximately 28 percent of the
construction costs. Thereafter, and on the basis of language in the agreement, defendant filed a
motion requesting an order canceling future benefit payments for accommodations; however, the
trial court denied the motion, and that ruling is not the subject of this appeal. Subsequently,
plaintiffs moved for an increase in benefits to cover home-care and living expenses, and
defendant, in response, argued that there should be a reduction. The trial court ruled that 28
percent of the home could be attributed to Michael’s needs. Using this allocation, the trial court
ordered defendant to pay benefits covering 28 percent of the following expenses: real estate tax
bills, gas and electric utility bills, homeowner’s insurance, home maintenance,1 telephone bills,
and security system costs. The court ordered defendant to pay 100 percent of the expenses
associated with the gasoline backup generator, dumpster, medical alert pendant, television
monitoring system, and inspections of the elevator.
The trial court additionally ordered
defendant to pay plaintiffs $15 an hour for the two hours a day generally spent cleaning
Michael’s section of the home, removing trash, waxing floors, and removing snow from the
driveway. The trial court further ruled that plaintiffs were entitled to penalty interest under MCL
500.3142 and reasonable attorney fees under MCL 500.3148.
Whether a cost constitutes an allowable expense under MCL 500.3107(1)(a) is a question
of statutory construction, subject to review de novo. Griffith, 472 Mich at 525-526. We review
underlying factual findings for clear error. Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d
552 (2008). “A trial court’s finding of an unreasonable refusal to pay or delay in paying
benefits will not be reversed on appeal unless the finding is clearly erroneous.” Attard v Citizens
Ins Co of America, 237 Mich App 311, 316-317; 602 NW2d 633 (1999). Our primary task in
construing a statute is to discern and give effect to the intent of the Legislature. Shinholster v
Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004). The words contained in a
statute provide us with the most reliable evidence of the Legislature’s intent. Id. at 549.
In Reed v Citizens Ins Co of America, 198 Mich App 443; 499 NW2d 22 (1993),
overruled by Griffith, this Court, in an opinion I authored, addressed a claim for no-fault
1
The court included within this cost the expenses associated with the well, septic system, roof,
structural upkeep of the home, and general maintenance and repair.
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insurance benefits under MCL 500.3107(1)(a).2 In Reed, a parent sought no-fault insurance
coverage for room and board expenses associated with the care of her son after he was severely
injured in an automobile accident and came to live with her. He required 24-hour nursing care.
The son initially spent 2½ years in residential treatment facilities following the accident. Id. at
445. The Reed panel, after first observing that “family members may be compensated for the
services they provide at home to an injured person in need of care,” ruled:
We see no compelling reason not to afford the same compensation under
the act to family members who provide room and board. [MCL 500.3107(1)(a)]
does not distinguish between accommodations provided by family members and
accommodations provided by institutions, and we decline to read such a
distinction into the act. Moreover, holding that accommodations provided by
family members is an “allowable expense” is in accord with the policy of this
state.
Denying compensation for family-provided accommodations while
allowing compensation in an institutional setting would discourage home care that
is generally, we believe, less costly than institutional care. . . .
We hold that, where an injured person is unable to care for himself and
would be institutionalized were a family member not willing to provide home
care, a no-fault insurer is liable to pay the cost of maintenance in the home. [Id. at
452-453 (citations omitted).]
We are of the opinion that Reed was correctly decided and that it honored the language in
MCL 500.3107(1)(a). We note that the Supreme Court, without dissent, denied the application
for leave to appeal in Reed, 444 Mich 964 (1994), and the opinion stood and was accepted for 12
years until being overruled by a four-to-three decision in Griffith.3
In Griffith, the plaintiff’s husband, Douglas Griffith, was involved in a motor vehicle
accident, resulting in a severe brain injury and leaving him confined to a wheelchair. He was
first treated at in-patient facilities and hospitals for two years before returning home with the
plaintiff, where he required assistance with basic tasks such as bathing and eating. The insurer
denied the plaintiff’s claim to recoup her husband’s food expenses under MCL 500.3107(1)(a)
that were incurred after he returned home. Griffith, 472 at 524-525. Relying on the language in
MCL 500.3105(1)4 and MCL 500.3107(1)(a), the Supreme Court rejected the plaintiff’s claim
2
MCL 500.3107(1)(a) provides that PIP benefits are payable for “[a]llowable expenses
consisting of all reasonable charges incurred for reasonably necessary products, services and
accommodations for an injured person’s care, recovery, or rehabilitation.”
3
We encourage our Supreme Court to revisit and reconsider its decision in Griffith. See People
v Mitchell, 428 Mich 364, 370; 408 NW2d 798 (1987) (stating that the Court of Appeals may
properly express its belief that a Supreme Court opinion was incorrectly decided).
4
MCL 500.3105(1) provides, in pertinent part, that “[u]nder personal protection insurance an
insurer is liable to pay benefits for accidental bodily injury arising out of the ownership,
operation, maintenance or use of a motor vehicle as a motor vehicle . . . .”
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for no-fault benefits. With respect to MCL 500.3105(1), the Court construed the language to
mean that “a no-fault insurer is liable to pay benefits only to the extent that the claimed benefits
are causally connected to the accidental bodily injury arising out of an automobile accident.” Id.
at 531. The Court concluded that the plaintiff’s claim did not indicate that her husband’s diet
was different from the diet of an uninjured person, that the food expenses were incurred as part
of a treatment plan, or that the food costs were related in any way to the injuries suffered in the
accident. Id. Therefore, according to the Griffith Court, the claimed food expenses were not
for, nor causally connected to, an accidental bodily injury. Id. at 532.
Proceeding on an assumption that the food expenses could be compensated under MCL
500.3105(1), the Supreme Court then examined and rejected the plaintiff’s claim under MCL
500.3107(1)(a). The Court first noted that there was no contention that the food expenses were
part of the plaintiff’s husband’s “recovery” or “rehabilitation,” as those terms are used in MCL
500.3107(1)(a), thereby narrowing the issue to whether the food expenses were necessary for his
“care.” Griffith, 472 at 532-533. Addressing the interpretation of the term “care” as used in
MCL 500.3107(1)(a), the Court stated:
“Care” must have a meaning that is broader than “recovery” and
“rehabilitation” but is not so broad as to render those terms nugatory. As noted
above, both “recovery” and “rehabilitation” refer to an underlying injury;
likewise, the statute as a whole applies only to an “injured person.” It follows that
the Legislature intended to limit the scope of the term “care” to expenses for those
products, services, or accommodations whose provision is necessitated by the
injury sustained in the motor vehicle accident. “Care” is broader than “recovery”
and “rehabilitation” because it may encompass expenses for products, services,
and accommodations that are necessary because of the accident but that may not
restore a person to his preinjury state. [Id. at 535.]
The Griffith Court, applying its definition of “care,” proceeded to analyze the claim for
food expenses pursued by the plaintiff:
Griffith’s food costs here are not related to his “care, recovery, or
rehabilitation.” There has been no evidence introduced that he now requires
different food than he did before sustaining his injuries as part of his treatment
plan. While such expenses are no doubt necessary for his survival, they are not
necessary for his recovery or rehabilitation from the injuries suffered in the
accident, nor are they necessary for his care because of the injuries he sustained in
the accident. Unlike prescription medications or nursing care, the food that
Griffith consumes is simply an ordinary means of sustenance rather than a
treatment for his “care, recovery, or rehabilitation.” In fact, if Griffith had never
sustained, or were to fully recover from, his injuries, his dietary needs would be
no different than they are now. We conclude, therefore, that his food costs are
completely unrelated to his “care, recovery, or rehabilitation” and are not
“allowable expenses” under MCL 500.3107(1)(a). [Id. at 535-536 (emphasis in
original).]
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The Court, rejecting the plaintiff’s argument that there was no difference between food
costs for hospital food and the cost of food provided to an insured as part of at-home care,
reasoned:
Food costs in an institutional setting are “benefits for accidental bodily
injury” and are “reasonably necessary products, services and accommodations for
an injured person’s care, recovery, or rehabilitation.” That is, it is “reasonably
necessary” for an insured to consume hospital food during in-patient treatment
given the limited dining options available. Although an injured person would
need to consume food regardless of his injuries, he would not need to eat that
particular food or bear the cost associated with it. Thus, hospital food is
analogous to a type of special diet or select diet necessary for an injured person’s
recovery. Because an insured in an institutional setting is required to eat “hospital
food,” such food costs are necessary for an insured’s “care, recovery, or
rehabilitation” while in such a setting. Once an injured person leaves the
institutional setting, however, he may resume eating a normal diet just as he
would have had he not suffered any injury and is no longer required to bear the
costs of hospital food, which are part of the unqualified unit cost of hospital
treatment.
This reasoning can be taken a step further when considering the costs of
items such as an injured person’s clothing, toiletries, and even housing costs.
Under plaintiff’s reasoning, because a hospital provided Griffith with clothing
while he was institutionalized, defendant should continue to pay for Griffith’s
clothing after he is released. The same can be said of Griffith’s toiletry
necessities and housing costs. While Griffith was institutionalized, defendant paid
his housing costs. Should defendant therefore be obligated to pay Griffith’s
housing payment now that he has been released when Griffith’s housing needs
have not been affected by his injuries? [Id. at 537-539 (emphasis in final
paragraph added).]
It is crucially important for our purposes here to keep in mind all the language in the
rhetorical question regarding housing needs posed in this passage from Griffith, which demands
a determination whether the housing needs at issue are “affected by [one’s] injuries.” Griffith
expressly overruled Reed on the basis that the rule announced in Reed was contrary to MCL
500.3105(1) and MCL 500.3107(1)(a). Id. at 540. As indicated earlier, the rule announced in
Reed was that in cases “in which an injured person is unable to care for himself and would be
institutionalized were a family member not willing to provide home care, a no-fault insurer is
liable to pay the cost of maintenance in the home.” Reed, 198 Mich App at 453. However,
consistent with Griffith and its language addressing housing needs unaffected by injuries, room
and board or living expenses are not necessarily precluded from being covered by insurance
benefits in their entirety in every case, such as when the expenses, because of or as affected by
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the injuries, go beyond or are different from what normally could be expected.5 Reed in no way
indicated that the claimed room and board or living expenses were atypical, unusual, or out of
the ordinary; rather, they were ordinary expenses typically associated with living in the home.
Id. at 446 (trial court stated that benefits would not be recoverable because the “expenses would
have been incurred regardless of the injury sustained”), 450 n 3 (proposed amended complaint
sought reasonable accommodation expenses), and 453 (Court disagreed that “expenses that are
as necessary for uninjured persons as they are for injured persons are not allowable expenses”).
At its core, the holding in Griffith requires a court to determine whether expenses would
not have been incurred but for the accident and resulting injuries. Stated otherwise, the question
is whether the expenses would have been incurred in the course of an ordinary life unmarred by
an accident. And if they would have been incurred, like the ordinary food costs at issue in
Griffith, a causal connection between the expenses and the accidental bodily injury would be
lacking, and it could not be said that the act of providing products, services, and accommodations
was necessitated by the accidental bodily injury. No-fault benefits would not be payable absent a
link between the expenses and the injury. But if the expenses were atypical and arose solely
because or out of the accidental bodily injury, a causal connection between the expenses and the
injury would exist and it could be said that the act of providing products, services, and
accommodations was necessitated by the accidental bodily injury. Payment of no-fault benefits
to cover the expenses would be mandated in that situation.
The analysis necessarily entails a comparison between costs associated with
circumstances as they actually exist, which includes reflection on a life scarred and affected by
injuries sustained in an automobile accident, and costs associated with a life unscarred by
injuries, which would include examination of circumstances that existed preinjury or that would
in all likelihood have transpired absent the injury. Whether injured or uninjured, Michael would
need, like each of us, daily sustenance and housing, thereby incurring all associated costs. The
concept that defendant fails to grasp is that, even though Michael or his parents would have
borne expenses for Michael’s necessities had Michael not been injured, the expenses currently
being incurred as a result of his injuries are, in all likelihood, more than would ordinarily have
been incurred in an accident-free life.
An initial question that begs asking as part of the “but for” analysis concerns whether you
take into consideration the fact that it is Michael’s parents who are providing “services” and
“accommodations” to Michael. Given our Supreme Court’s tendency to use dictionaries to
determine the plain meaning of statutory terms undefined in the statutory scheme, People v
5
We note that Griffith indicated that if Mr. Griffith had been required to eat special diet food,
no-fault benefits would have covered those food costs. Griffith did not have to address whether
there would have needed to be any adjustments in benefits on consideration of the cost of the diet
food when compared to the cost of ordinary food. For example, if it cost $15 a day to feed a
person preinjury, and if the daily cost of food on a special diet following the accident were still
$15 a day, would a $15 daily no-fault benefit have to be paid or would no benefit be owing?
Griffith suggests that a $15 benefit would still need to be paid.
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Morey, 461 Mich 325, 330-331; 603 NW2d 250 (1999), “accommodations” is defined as
“lodging” or “food and lodging” and services encompass “act[s] of helpful activity . . . .”
Random House Webster’s College Dictionary (2001). Given that Michael is 25 years old,
plaintiffs are not under any legal obligation as parents to pay for his food, lodging,
accommodations, support, or services or to otherwise pay for his care. See generally the Support
and Parenting Time Enforcement Act, MCL 552.601 et seq. Had Michael not been injured and
were he a healthy 25-year-old man, plaintiffs would likely not be providing any accommodations
and services for him and, at a minimum, they absolutely would have no legal obligation to so
provide.
A medical or nursing home facility that provides institutionalized care is likewise not
obligated to provide accommodations and services, but once an undertaking is made and a
patient is admitted under contract, accommodations and services are provided, as well as
products, and the no-fault insurer is required to pay benefits to cover the associated costs.
However, under the analysis in Griffith, especially considering its rejection of Reed, a case with
many parallels to the case at bar, it appears that parents providing accommodations and services
for an injured adult child, although under no legal obligation to do so, are not afforded no-fault
insurance benefits to the full extent of the accommodations and services provided. This is so
despite the fact that, in our opinion, there is indeed a causal connection between the accidental
bodily injury and the accommodations and services. Again, plaintiffs are providing Michael
with accommodations and services, which, but for the accident, they would likely no longer be
providing given his age. But in contemplating whether an expense for a particular item would
have been incurred even without the accident, Griffith suggests that it matters not who would
have incurred the expense in an accident-free life, just that it would have ordinarily been
incurred.6 Thus, for example, all costs attributable to Michael for utilities on the basis of his
usage would not be recoverable because, had Michael not been injured, his activities would
nonetheless have generated some level of expenses for utility usage regardless of who ultimately
paid the utility bills. Under Griffith, an examination is required to discern the portion of the
utility costs attributable to Michael that is causally connected to his injuries, which would be
utility usage that goes beyond typical or ordinary usage, i.e., usage “affected by his injuries.”
Griffith, 472 Mich at 539 (emphasis added). In other words, a court must allocate not the portion
of a utility bill attributable to the injured person’s usage, but that portion of the bill attributable to
the injured person’s usage that is only occurring because of the injuries, e.g., power to operate
Michael’s ventilator. Making these calculations and ascertaining the proper allocations might
prove difficult; however, Griffith requires such an undertaking.
6
In Griffith, it was an elderly, married couple that sought insurance benefits for food costs. The
couple would have together borne these costs regardless of the accident. The factual setting is
different in this case because plaintiffs are caring for an adult child who, most likely, would be
otherwise out on his own and bearing the costs of housing himself, although we cannot say that
with 100 percent certainty. Ultimately, this distinction does not appear to be relevant under
Griffith, especially given its treatment of Reed.
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We now turn to the expenses for which plaintiffs seek no-fault benefits, applying the
principles enunciated. It is important to first identify the expenses at issue and those not at issue
in this case. Defendant concedes that Michael is in need of “24 hour per day nursing services,
widened hallways and elevators . . . , wheelchairs, ventilators, specially equipped beds, and other
such amenities that [he] needs as a result of the injuries” and that “[s]uch expenses are causally
related to [the] automobile accident and are covered under no-fault insurance.” Defendant also
concedes that the expenses associated with the backup generator should be and are fully covered
by insurance, as are television monitoring and medical alert pendant expenses. Defendant
challenges, however, the awarding of insurance benefits to cover, even partially, property taxes,
standard utility bills, homeowner’s insurance, home maintenance costs, telephone bills, dumpster
expenses, elevator inspection costs, home security system expenses, cleaning stipends paid to
Mrs. Hoover for time spent cleaning Michael’s area of the home, and snow removal.
It is necessary to carefully scrutinize the expenses at issue and take into account factors
that have a bearing on those expenses.
With respect to property taxes, it is indisputable that plaintiffs’ property taxes are affected
by the value of the home, see the General Property Tax Act, MCL 211.1 et seq., and it is likely
that the value of the home is enhanced by certain structures and amenities therein, architectural
designs, and square footage that are causally connected to, and necessitated by, Michael’s
accidental bodily injuries, thereby inflating the amount of property taxes owed. In regard to
homeowner’s insurance, it is again, in our opinion, indisputable that premiums paid for that
insurance are affected by the value of the home, which in turn is affected by the home’s
structural design, amenities, and square footage, some of which are attributable to Michael’s
injuries, and the home’s features in and of themselves can affect the insurance premiums. With
respect to maintenance costs, some portion of those costs are likely to be causally connected to,
and necessitated by, Michael’s injuries, going beyond ordinary maintenance expenses related to
housing a healthy adult child, when many features of the home are atypical in order to suit
Michael’s needs. On the issue of the utility bills, touched on earlier, they are likely higher than
would normally be expected, considering the extra electricity needed to power, for example, the
ventilator. If Michael were a healthy young man living in his parents’ home, there would be no
extra cost to power a ventilator. Additionally, the mere size of the home, some of which can be
attributed to features needed to accommodate Michael, would have a bearing on the cost to heat
the home. We agree with defendant that plaintiffs would be required to pay taxes, utilities costs,
homeowner’s insurance premiums, and maintenance expenses irrespective of Michael’s injuries;
however, these costs are certainly inflated beyond what would normally be expected because of
Michael’s accidental bodily injury.
With respect to the ADT security system, Mr. Hoover indicated that it is used for crime
prevention and to help the nurses feel safer. Given that nurses would be unnecessary but for the
accident and considering that the home contains expensive medical equipment related to
Michael’s care, it could be surmised that some of the costs associated with the security system
are causally connected to, and necessitated by, Michael’s accidental bodily injuries. We would
also not be surprised if the cost of the system is greater because of the immense size of the home
necessitated by features constructed to properly care for Michael. Furthermore, Mr. Hoover
testified that a “panic button” for Michael was part of the ADT security system and included in
the monthly bill for the system.
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In regard to elevator inspection costs, the fact that plaintiffs’ house even has an elevator
is directly connected to, and necessitated by, Michael’s injuries and, therefore, inspection and
operational expenses can also be attributed to accidental bodily injury. Indeed, as quoted earlier,
defendant concedes that Michael is in need of “widened hallways and elevators.” Michael’s
need for basement access during weather emergencies by means of an elevator specifically arises
because of his injuries, and defendant apparently believes that Michael has another means to
access the basement during a tornado or other weather emergency or that he need not be given a
safe haven. Defendant’s position is necessarily and implicitly premised on the illogical
conclusion that plaintiffs would have had an elevator in their home had Michael never been
injured. Furthermore, Mr. Hoover testified that a doctor ordered the elevator, and he also stated
that the elevator is used to give Michael access to the basement when the family gathers down
there to watch television or otherwise spend time together socially. Inspecting the elevator is a
normal safety precaution, and associated costs are covered by no-fault benefits.
With respect to the dumpster, Michael alone generates numerous bags of garbage a day
because of the nature of his injuries and their attendant care, which goes beyond the amount of
garbage that would typically be generated by an adult child who is not afflicted with the injuries
suffered by Michael. Mr. Hoover testified that most of the garbage that goes into the dumpster is
generated by Michael and that without a dumpster, garbage would pile up all over the place and
blow into the street.7 Absent Michael’s injuries, no dumpster would be necessary. At first
glance, allocating the full amount of the dumpster cost to Michael would appear improper
because plaintiffs also use the dumpster for their waste and, even if injury-free, Michael would
generate some waste. However, this issue is somewhat analogous to the food expense issue in
Griffith. Just as daily sustenance can be accomplished by eating an ordinary diet or a special
diet, garbage removal can be accomplished by using a standard trash can set out at the curb or by
use of a dumpster, something typically relegated to use by restaurants and businesses because of
the quantity of waste generated. Consistent with our thoughts expressed in footnote 5 of this
opinion, Griffith indicates that special diet food would be a fully covered expense regardless of
how it compares to the cost of daily sustenance ordinarily incurred. Griffith, 472 Mich at 537538. Thus, even though some garbage removal costs can be attributed to plaintiffs, along with
costs Michael would have ordinarily incurred in an accident-free life, the dumpster, like special
diet food, is fully covered because it was necessitated by accidental bodily injury.
On the issue of benefits to cover stipends for Mrs. Hoover related to cleaning Michael’s
living area, parents of a healthy adult child might clean up after the child, they might make the
child clean up after himself, or the parents and child might share in the cleaning duties. What is
abundantly clear here is that Michael’s incapacity does not allow him to clean up after himself
and that the needed cleaning goes beyond cleaning that would ordinarily be expected.8 Part of
7
Mr. Hoover stated that “you could get a pickup truck load in one day of Michael’s stuff . . . .”
He testified that about 80 percent of the garbage in the dumpster comes from Michael.
8
“[W]e long ago recognized that family members should be compensated for the services they
provide at home to an injured person in need of care.” Bonkowski v Allstate Ins Co, 281 Mich
App 154, 167; __ NW2d __ (2008).
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Mrs. Hoover’s cleaning time is spent taking care of messes created as the nurses provide care for
Michael, which, but for the accident, would not be necessary. She also testified that she cleans
daily to make sure that Michael’s room is “dust free,” which is understandable given Michael’s
susceptibilities to infection or illness. We conclude that Mrs. Hoover is entitled to be
compensated for any time spent cleaning areas used by Michael and his caregivers that goes
beyond the time for cleaning that one would ordinarily expect to perform. With respect to snow
removal costs, Mr. Hoover testified that part of the need to clear the driveway as often as it is
done is because of the fact that shift nurses are coming and going around the clock and ingress or
egress is required. Any costs greater than those that would regularly be spent on snow removal
are to be attributed to Michael’s needs.
In regard to telephone bills, the evidence was unclear, such that we cannot render any
assessment of the issue.
We conclude that a remand is proper for the parties to submit additional evidence on each
of the expenses remaining at issue in order to give them an opportunity to properly present
arguments under the analytical framework outlined here and as required by Griffith. At the time
of the hearing on plaintiffs’ motion to increase benefits, during which the parties and court
agreed to have the case decided on documentary evidence submitted to the court, Griffith had not
yet been decided. Moreover, the approach taken by both parties was to have the court simply
allocate the expenses, across the board, on the basis of the percentage of the home devoted to
Michael’s use, which would then be multiplied by the particular bill covering the entire home.
The parties disagreed on the percentage of the home devoted to Michael’s use, and that was the
focus during much of the litigation below. Plaintiffs did indeed submit bills, statements, and
other evidence of the expenses. We conclude that remand for further development of the record
under Griffith guidelines is proper.
We do agree with defendant that the 28 percent allocation ordered by the trial court was
not legally sound, and it is inconsistent with our analysis, although the court’s decision was
understandable from a practical standpoint considering the difficulties in making technical
allocations for each item of cost and the desire to simplify matters. Despite the difficulties in
making the necessary assessments, we reverse with respect to the expenses that were given a 28
percent allocation and remand the case to the trial court in order for the court to entertain
additional evidence relevant to the approach dictated by Griffith and to rule accordingly. For
purposes of the remand, we emphasize that although this opinion indicates that there is a
likelihood that the various expenses at issue are causally connected to Michael’s injuries to some
degree, the trial court is to render its own judgment on each expense on the basis of the evidence
presented. On the claimed expenses for which the trial court awarded 100 percent of the costs,
we find no error in regard to the backup generator, television monitoring system, medical alert
pendant, elevator inspections, and dumpster. Thus, we affirm that part of the trial court’s ruling.
With respect to the cleaning services performed by Mrs. Hoover and the snow removal expenses,
no-fault benefits are owing only if the snow removal and time spent on cleaning are causally
connected to Michael’s injuries, which matters the trial court must resolve on remand.
On the issue of attorney fees, defendant did unreasonably refuse to pay or delay payments
of benefits for expenses associated with the backup generator, television monitoring system,
medical alert pendant, dumpster, and elevator inspections. Thus, attorney fees are recoverable to
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the extent that they relate to benefits for those claimed expenses. MCL 500.3148(1); Attard, 237
Mich App at 317. Penalty interest under MCL 500.3142(2) is also appropriate with respect to
those same items. Attard, 237 Mich App at 319-320. The other items of expense need further
review before deciding the appropriateness of additional attorney fees and penalty interest. At
this time, we see no basis to award defendant attorney fees under MCL 500.3148(2) for a
foundationless excessive or fraudulent claim on plaintiffs’ part. To the extent that our
conclusions on attorney fees and penalty interest are consistent with the trial court’s order, we
affirm.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Fitzgerald, J., concurred.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
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