CLYDE EVERETT V AUTO OWNERS INSURANCE CO

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STATE OF MICHIGAN COURT OF APPEALS CLYDE EVERETT, UNPUBLISHED January 26, 2010 Plaintiff-Appellee, v No. 287640 Lapeer Circuit Court LC No. 06-037406-NF AUTO OWNERS INSURANCE COMPANY, Defendant-Appellant. Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ. GLEICHER, J. (dissenting) I respectfully dissent because I cannot meaningfully distinguish this case from Proudfoot v State Farm Mut Ins Co, 469 Mich 476; 673 NW2d 739 (2003). According to the Supreme Court’s holding in Proudfoot, id. at 484-485, plaintiff did not “incur” expenses for his home modification until February 13, 2008, when he signed a contract with Recovery Construction Services. Given that no evidence suggests that defendant delayed payment after February 2008, no expenses qualified as “overdue” under MCL 500.3148(1). Consequently, I conclude that the circuit court committed legal error when it misapplied § 3148(1) as a basis for awarding plaintiff attorney fees. Proudfoot, 469 Mich at 482. /s/ Elizabeth L. Gleicher -1-

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