RICHARD O'HENLEY V LIBERTY MUTUAL INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD O’HENLEY,
UNPUBLISHED
December 3, 1999
Plaintiff-Appellee,
v
LIBERTY MUTUAL INSURANCE COMPANY,
No. 208468
Wayne Circuit Court
LC No. 95-509174 CK
Defendant-Appellant.
Before: Gribbs, P.J., and O’Connell and R.B. Burns*, JJ.
O’CONNELL, J. (concurring in part and dissenting in part).
Although I concur with the majority that the trial court correctly granted summary disposition to
plaintiff, I would reverse the trial court’s grant of attorney fees.
MCL 500.3148(1); MSA 24.13148(1) allows for an award of attorney fees against an insurer
where “the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in
making proper payment.” This Court reviews the trial court’s finding of unreasonable refusal or delay
for clear error. McKelvie v Auto Club Ins Ass’n, 203 Mich App 331, 335; 512 NW2d 74 (1994).
Although the insurer has the burden of justifying the refusal or delay, the refusal or delay will not be
found to be unreasonable “where it is the product of a legitimate question of statutory construction . . .
.” Id.
I believe that whether “mechanical work” includes adding fluids to an engine is a legitimate
question of statutory construction. The cases cited by the majority defining “mechanical work” involved
different activities: detaching a trailer from a motor vehicle, Marshall v Roadway Express, Inc, 146
Mich App 753, 757; 381 NW2d 422 (1985), and checking an air hose to see whether it was leaking,
Thompson v TNT Overland Express, 201 Mich App 336, 342; 505 NW2d 918 (1993). An insurer
has the right to litigate to protect its interests, and I find that it was not unreasonable for defendant to
refuse payment and litigate this issue. Whether certain engine-maintenance tasks are or are not
“mechanical work” does not involve a clear-cut, “mechanical” analysis, but requires the thoughtful
application of court-made definitions of statutory terms to factual situations.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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I would therefore hold that the trial court clearly erred in awarding plaintiff $18,000 in attorney
fees.
/s/ Peter D. O’Connell
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