IN RE LARRY JEROME LEBOEUF LIP
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STATE OF MICHIGAN
COURT OF APPEALS
In re LARRY JEROME LEBOEUF, LIP.
WILLIAM I. MCDONALD, Conservator for
LARRY JEROME LEBOEUF, a Legally
Incapacitated Person,
UNPUBLISHED
October 27, 2009
Petitioner-Appellee,
v
No. 286499
Marquette Probate Court
LC No. 96-028300-CY
AUTO OWNERS INSURANCE COMPANY,
Respondent-Appellant.
Before: Hoekstra, P.J., and Bandstra and Servitto, JJ.
PER CURIAM.
Respondent appeals as of right the probate court’s order approving compensation for
petitioner’s conservator fees in the amount of $9,840. Respondent also challenges an earlier
order of the court denying application of the one-year-back rule, MCL 500.3145, of Michigan’s
no-fault act, MCL 500.3101 et seq., to petitioner’s fees. We affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
We first turn to respondent’s challenge to the trial court’s refusal to apply the one-yearback rule to this case. The trial court concluded that, even though petitioner performed his
services more than one year before filing his petition, the fees for his services had not been
“incurred” by the estate under MCL 500.3145 until the court approved them. Therefore, the oneyear-back rule was held not to be applicable to this case. We review de novo a trial court’s
decision on a motion for summary disposition.1 Holmes v Michigan Capital Medical Ctr, 242
Mich App 703, 706; 620 NW2d 319 (2000). Likewise, we review de novo questions of law,
1
While the probate court did not frame it as such, the parties agree that its ruling on the oneyear-back rule was a denial of respondent’s motion for partial summary disposition under MCR
2.116(C)(7).
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including statutory interpretation and application. Ford Motor Co v Woodhaven, 475 Mich 425,
438; 716 NW2d 247 (2006).
The “one-year back rule” of the no-fault act, MCL 500.3145(1), provides, in pertinent
part, as follows:
An action for recovery of personal protection insurance benefits payable under
this chapter for accidental bodily injury may not be commenced later than 1 year
after the date of the accident causing the injury unless written notice of injury as
provided herein has been given to the insurer within 1 year after the accident or
unless the insurer has previously made a payment of personal protection insurance
benefits for the injury. If the notice has been given or a payment has been made,
the action may be commenced at any time within 1 year after the most recent
allowable expense, work loss or survivor’s loss has been incurred. However, the
claimant may not recover benefits for any portion of the loss incurred more than 1
year before the date on which the action was commenced.
Thus, the one-year back rule limits recovery “to those losses incurred within the one year
preceding the filing of the action.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 574; 702
NW2d 539 (2005).
Again, the probate court concluded that conservator fees are not incurred for purposes of
MCL 500.3145 until the probate court approves them. However, our Supreme Court has defined
incurred as follows:
“Incurred” means’ “‘[t]o become liable or subject to, [especially] because of one’s
own actions.’” Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 484; 673
NW2d 739 (2003), quoting Webster’s II New College Dictionary (2001).
“Liable” is defined as “ legally responsible[.]” Random House Webster’s College
Dictionary (1991). Generally, one becomes liable for the payment of services
once those services have been rendered. . . . [Community Resource Consultants,
Inc v Progressive Michigan Ins Co, 480 Mich 1097, 1098; 745 NW2d 123 (2008)
(dealing with medical expenses).]
See also Henry Ford Health System v Titan Ins Co, 275 Mich App 643, 647; 741 NW2d 393
(2007) (concluding that the plaintiff’s claim for payment of medical services was barred by the
one-year-back rule because it was filed more than one year after the services were rendered).
Applying the “general rule” to this case, petitioner’s conservator fees were incurred when
the services were rendered, not when the probate court approved them. Therefore, the probate
court erred in refusing to apply the one-year-back rule to this case.
The probate court relied on Proudfoot, supra, to support its decision. It reasoned that the
Proudfoot standard for incurred, i.e., that incurred means that services have been rendered and
payment has been made by the insured, “seemed most appropriate” for this case. However, in
Proudfoot, the plaintiff had neither begun modifying her home, nor had she paid for or
contracted for the planned modifications. Proudfoot, supra at 484. Thus, because the plaintiff
was claiming reimbursement for a future expense, the expense had not yet been incurred. Id.
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Here, at the time the services were rendered by petitioner, the estate had become liable to him for
some amount. The probate court’s approval of the fees only served to determine the amount of
the estate’s liability.
Further, the probate court’s interpretation of “incurred” contravenes the purpose of the
one-year-back rule, which is to “compel action within a reasonable time so the opposing party
has a fair opportunity to defend” and to protect defendants against stale claims and from the fear
of protracted litigation. Walden v Auto-Owners Ins Co, 105 Mich App 528, 533; 307 NW2d 367
(1981). Therefore, we reverse the trial court’s order denying application of the one-year-back
rule to this case.
Next, respondent argues that the probate court erred in awarding conservator fees because
petitioner failed to present reasonable proof of the services he rendered as required by MCL
500.3107 and MCL 500.3142. More specifically, respondent argues that, because petitioner
failed to provide a detailed invoice for his services, respondent was unable to assess its liability
under MCL 500.3107. We disagree. Again, we review questions of statutory interpretation and
application de novo. Ford Motor Co, supra at 438.
The no-fault act dictates the scope of PIP benefits. In re Shields Estate, 254 Mich App
367, 369; 656 NW2d 853 (2002). MCL 500.3107(1)(a) provides, in pertinent part, as follows:
(1) Except as provided in subsection (2), personal protection insurance
benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for
reasonably necessary products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.
Accordingly, there are three requirements that must be met in order for an item to be considered
an “allowable expense”: (1) the expense must have been incurred; (2) the expense must have
been for a product, service, or accommodation reasonably necessary for the injured person’s
care, recovery, or rehabilitation; and (3) the amount of the expense must have been reasonable.
Nassar v Auto Club Ins Ass’n, 435 Mich 33, 49-50; 457 NW2d 637 (1990), quoting Manley v
DAIIE, 425 Mich 140, 169; 388 NW2d 216 (1998) (Boyle, J, concurring in part). The burden of
proving that an expense is reasonably necessary lies with the plaintiff. Manley, supra; Hoffman
v Auto Club Ins Ass’n, 211 Mich App 55, 94; 535 NW2d 529 (1995).
At issue here are the second and third requirements established in Nassar, supra. As to
the second, this Court has held that the fees associated with a guardian or conservator being
appointed as a result of an incapacity arising out of injuries sustained in an automobile accident
are allowable expenses under MCL 500.3104(1)(a). Heinz v Auto Club Ins Ass’n, 214 Mich App
195, 197-198; 543 NW2d 4 (1995). In Heinz, the plaintiff’s decedent was injured in an
automobile accident and, as a result, required the services of a guardian for two years before his
death. Id. at 196. The defendant refused to pay the guardian’s fees, arguing that the plain
meaning of MCL 500.3107(1)(a) provided only for medical care. Id. at 197. This Court rejected
the defendant’s argument, concluding that the no-fault act was not limited strictly to the payment
of medical expenses and that guardianship and conservator fees were allowable expenses under
MCL 500.3107(1)(a). Id. at 197-198. Relying on Heinz, the trial court concluded that if it is
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deemed necessary to appoint a guardian or conservator for the injured person, then the services
performed by the guardian or conservator are by definition “reasonably necessary.” We agree.
With respect to the third requirement, we conclude that the trial court did not err in
awarding conservator fees despite petitioner’s failure to present detailed evidence in support of
his claim. While the claim was not as detailed as respondent would have liked, the memorandum
of services provided by petitioner did outline the types of services he rendered to the estate
during the period in question, as well as estimate the time he spent each month rendering these
services. All of this appeared to be consistent with the day-to-day duties generally rendered by a
conservator. We do not conclude that the trial court erred in considering this to be sufficient
evidence to support the fees requested.
We affirm in part, reverse in part, and remand for application of the one-year-back rule to
the trial court’s award of petitioner’s conservator fees. We do not retain jurisdiction. No taxable
costs should be imposed pursuant to MCR 7.219, neither party having prevailed in full.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Deborah A. Servitto
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