Douglas v. Allstate Insurance Company

Douglas 241 Co Allstate Ins DOUGLAS v ALLSTATE INSURANCE COMPANY (Calendar 1). Argued April 4, July Docket No. 143503. No. Decided 30, 2012. against James filed an action in the Circuit Court Washtenaw Company, seeking personal protection Allstate Insurance to recover (PIP) insurance benefits under no-fault automobile insurance act, 1996, seq. plaintiff et 500.3101 a sustained severe injury closed-head brain when a hit-and-run motorist struck the bicycle riding. he was The ofthe driver vehicle could not be identified. Michigan Assigned Facility assigned plain- The Claims defendant to plaintiff paid tiffs no-fault insurance claim. Defendant PIP benefits years for the first brought three after the accident. Plaintiff this suit 2005, seeking additional PIP benefits. Defendant filed three separate summary disposition motions. With the consent of the parties, court, Shelton, J., granted Donald E. the first motion for partial summary disposition 500.3145(1), barring any under MCL portion plaintiffs year of claim that had more accrued than one plaintiff 31, 2005, May before commenced the on suit but denied the trial, Following other two motions. a bench the court determined that plaintiff plaintiff needed attendant care and awarded PIP benefits to plaintiffs for attendant-care services. court The determined that wife, Douglas, providing Katherine had been those services. The court calculated that was entitled to 67 a week hours of 31, period 2004, May attendant care for the between and November 1, 2007, 1, 40 hours week after November 2007. The court set hourly appealed. rate for those at $40. Defendant In an (Docket unpublished opinion per curiam, issued June No. 295484), PJ., Appeals, the Court of and Hoekstra Murray, JJ., denying affirmed the circuit court’s decision defen- Stephens, summary motions, disposition dant’s final two but reversed the award of benefits because the record failed to reflect that Katherine adequate provided. had maintained of records the care that she had Appeals The Court remanded case court circuit proceedings regarding further amount incurred for expected attendant care and to whether determine Katherine had performed at the time she the services. The Court of Appeals also affirmed the $40 circuit court’s establishment Mich by

hourly Katherine. rate for the attendant-care services appeal. Supreme granted leave 490 Mich 927 defendant Court (2011). by joined opinion Justices In an Chief Justice Young, Supreme Court held: and the Mary Beth Kelly, Zahra, Markman, injured person for attendant- An who seeks reimbursement by prove preponderance not of the evidence care services must rendered, only but also the the amount and nature of the services caregiver’s expectation of reimbursement for or plaintiff providing If the concludes that the the care. fact-finder family expenses receiving care from a incurred allowable member, any the to what extent fact-finder must determine expense charge. claimed is a reasonable 500.3107(l)(a) imposes requirements PIP four that a 1. prove in to recover for allowable claimant order benefits must (1) care, expense injured person’s expenses: the must be for an (2) rehabilitation, reasonably recovery expense or the must be (4) (3) incurred, charge necessary, expense the must be and the Thus, be the fact-finder must examine whether must reasonable. injury by were necessitated the sustained attendant-care services compensating injured an in the accident before motor vehicle Charges ordinary person for services. for household tasks that the injured person’s expenses. for care are allowable are not the not 500.3145(1) recovery 2. MCL the of for otherwise bars benefits expenses year filing allowable incurred more than one before the of Accordingly, plaintiff lawsuit. could not recover benefits for May 31, expenses incurred 2004. allowable before Expenses recovery expended are costs for or rehabilitation ability bring to an to a of health or order insured condition preinjury Expenses his or life. for care sufficient resume her state, person preinjury her but must be need restore a his or injuries insured’s to be considered ex- related allowable ordinary necessary penses. expenses cannot be for and Allowable services, services, ordinary replacement as because also known care, injured person’s necessary an services are not for and recovery, Although many or that rehabilitation. services performed properly that she were consid- Katherine claimed had services, including replacement daily organization ered house, life; meals; family yard, preparation of car and maintenance; daily chores, also that had she claimed she reasonably performed that could be considered attendant- services services, including traveling communicating to and with medication; managing plaintiffs plaintiffs providers; medical supervising plaintiff to that he cared for and did not ensure was v Allstate Ins Co though performed also harm himself—even she other tasks while plaintiff. correctly rejected supervising Appeals Court argument only replacement provided defendant’s that Katherine given testimony indicating that there at trial at least of the services that said she had were for some she plaintiffs injury care as necessitated he in the sustained motor vehicle accident. 500.3107(l)(a), 4. Under MCL whether claimed were

reasonably necessary using objective must be assessed stan- dard. It was not clear error the circuit court to conclude reasonably period necessary attendant-care services were 7, 2006, during before November a time which the affidavit of plaintiffs treating psychologist plaintiff stated that atten- needed during waking psychologist all dant care hours. The testified at early 1997, plaintiffs trial that as doctors had recommended plaintiff supervision, receive 24-hour and defendant’s claims adjuster agreed plaintiffs if with counsel that required trial, attendant-care services the time of would have he began. needed those services when lawsuit This evidence was for the circuit conclude sufficient court to that because attendant- necessary 7, 2006, they care services were after November were reasonably necessary also that date. before 500.3107(l)(a) expenses charges 5. MCL limits allowable to Even if a incurred. claimant can show that services for his or were necessary, reasonably obliged her and were the insurer is any pay except upon to amount submission of demon- evidence strating actually that services were rendered and actual the cost expended. charge something demanded, required Because a or caregiver expectation compen- the must have an that he or she be way proving caregiver compen- expected sated. The best of that a caregiver sation the time the at services rendered were is for the to charges contemporaneously providing document the incurred with them—whether in a or in formal bill another state- memorialized logs specificity ment that with nature of the and amount services rendered—and submit that to within documentation the insurer a amount reasonable of time after the services were The rendered. evidentiary requirement prove charges to were incurred equally applies family provides when a member care and when an professional provides case, medical unrelated care. the making finding regarding circuit awarded court benefits without a charges actually incurred, including whether the were whether actually expected payment providing Katherine for the services. Appeals properly recognized of Court award of the appropriately benefits could not be sustained remanded this However, the Court findings on the evidence. of fact based for case limiting period on by to be considered the Appeals erred findings required of fact make the court must The circuit remand. period they pertain of the lawsuit. to the entire plaintiff incurred that a has concluded 6. Once a fact-finder member, family receiving a care from allowable charge A was reasonable. whether the must determine fact-finder family may a member’s for base fact-finder agencies on what health-care provision of attendant-care agencies charge employees, health-care compensate but what their hourly appropriate rate patients from the is too attenuated their Rather, controlling. to be member’s services for a charge for what is a reasonable fact-finder must determine services, including provision consideration individual’s caregivers for their services. compensation provided individual to case, attendant-care benefits to court awarded In this the circuit testimony indicated trial plaintiff $40 the rate of an hour. While charged treating psychologist company by plaintiffs that a owned finding care, was the circuit court’s an hour for attendant $40 by paid clearly given $10 an hour that Katherine erroneous company provide treating psychologist’s attendant-care on remand If the circuit court concludes services for her husband. proved to benefits his entitlement has hourly services, rate on the it must establish new Katherine’s hourly caregiver’s rate. of an individual basis replacement Recovery services is limited of benefits for years after the accident in the first three those services 500.3107(l)(c). Accordingly, plaintiff recover could not under any replacement services. benefits for part; part; award of attendant-care Affirmed in reversed vacated, the circuit court for and case remanded to benefits proceedings. further joined Marilyn Kelly Justices Justice Cavanagh, majority’s interpretation dissenting, rejected Hathaway, 500.3107(l)(a) “charges and also phrase incurred” in MCL caregiver’s majority’s emphasis rejected on an individual determining charge hourly is reasonable whether rate when charges majority’s conclusion that the statute. The under the car- must establish incurred the insured have been and that egiver expected compensation the services rendered for caregiver expectation payment at the time the of arose the statutory supported lan- the services is not statutory by way charge of its guage. incurs the The insurer 500.3107(l)(a) obligation provide under MCL PIP benefits to Allstate Co Ins proves reasonably when the insured that the services were neces- sary actually charge and rendered and that the amount of caregiver’s expectation payment reasonable. The of is irrelevant. majority’s requirement caregiver expect compensa- that the punishes family tion the time the services were rendered also provide members who act to for loved one without a contemporaneous expectation compensation. Imposing of burden- preferences specific documentary some evidence on insureds is statutorily unsupported improperly also and invades the role of Agency determining the fact-finder. rates are relevant to proper rate of for PIP benefits. The circuit court did clearly by awarding plaintiff err PIP at the rate $40 benefits an hour. — — — 1. Insurance No-Fault Personal Protection Insurance Benefits — Expenses Allowable Requirements. act, seeking Under the no-fault automobile insurance a claimant personal protection recover insurance benefits for allowable ex- (1) penses prove things: expense four must must be for an (2) injured care, person’s recovery, rehabilitation, expense or (3) reasonably incurred, necessary, expense must be must be (4) (MCL 500.3107[l][a]). charge must be reasonable — — 2. Insurance — No-Fault Personal Protection Insurance Benefits — Expenses Allowable or Rehabilitation. Care, Recovery, personal protection A no-fault insurer is liable under the insurance provisions of the no-fault automobile insurance act for allowable expenses consisting charges prod- of all reasonable incurred for ucts, services, reasonably necessary and accommodations for an injured care, person’s recovery, rehabilitation; expenses or recovery expended bring or rehabilitation are costs in order to ability insured to a condition health or sufficient to resume his life; preinjury expenses person her or for care need not restore a state, preinjury his or her but must be related to the insured’s injuries; ordinary necessary allowable cannot be for (MCL 500.3107[1]). — — — Insurance No-Fault Personal Protection Charges Insurance Benefits Caregiver’s — — Expenses Expectation Allowable Incurred Payment. personal protection provisions Under the insurance of the no- act, fault automobile insurance an insurer is liable for allowable expenses consisting charges of all reasonable incurred for reasonably necessary products, services and accommodations injured care, rehabilitation, person’s recovery, for an or but the obligated any pay except upon insurer is not amount submis- Mich 241 Opinion op the Court actually were rendered and of the sion of evidence services expended; caregiver expected that he actual cost must have charges compensated or she would be in order for the to be incurred; way proving caregiver considered the best that a expected compensation caregiver is for the to document the charges contemporaneously providing them— incurred with whether in a formal bill or in another memorialized statement logs specificity and amount of services with nature to the rendered —and submit that documentation insurer within a reasonable amount of time after services were rendered; evidentiary requirement applies equally when family provides member care and when an unrelated medical (MCL 500.3107[l][a]). professional provides care — - — 4. Insurance No-Fault Personal Protection Insurance Benefits Charges Charges — — — Expenses Allowable Incurred Reasonable — by Family Attendant-Care Services Care Members. act, seeking Under the no-fault automobile insurance a claimant personal protection to recover insurance benefits for allowable prove any charges must incurred were reason- able; determining charge family what ais reasonable for a services, provision member’s of attendant-care the fact-finder may hourly base the member’s rate on the amount agencies compensate employees, health-care their but agencies charge patients amount health-care their is not con- trolling; rather, the fact-finder must determine what is a charge provision services, reasonable for an individual’s (MCL 500.3107[l][a]). agency’s Bredell) & (by Bredell Bredell John H. for plaintiff. Potter, DeAgostino, (by O’Dea & Patterson P. Kelly O’Dea) for defendant.

Amici Curiae: II,

Miller (by Hillary, Johnson Richard E. Stephen Ryan) Protecting R. for the Coalition Auto No-Fault. Nemeth, (by Nemeth),

Gross & P.L.C. T. for the Mary Insurance Institute of Michigan. Co v Allstate Ins Opinion of the Court act,1 Under the terms of the no-fault C.J.

YOUNG, in a accident entitled injured motor vehicle person (PIP) personal protection recover insurance benefits for all expenses consisting of reasonable “[allowable charges reasonably necessary products, incurred for and accommodations for an injured person’s care, or rehabilitation.”2 case recovery, requires This Court to consider whether the services provided plain- an injured person’s tiffs wife constituted services “for care,” whether the Court of Appeals properly remanded this case to the circuit court for of fact findings regarding the extent to which for expenses plaintiffs services for incurred, care were actually whether the circuit court by erred an rate awarding hourly corporate agencies services, for charge rendering rather than an rate hourly caregivers individual receive for those services. We hold that expenses” “allowable must be an “for injured person’s care, recovery, or rehabilitation.”3 Accordingly, a fact-finder must examine whether at- tendant care services are injury “necessitated in sustained the motor vehicle accident” before com- an pensating injured person However, for them.4 “ simply ‘[o]rdinary services cannot be household ” tasks,’ which are not the injured person’s care.5 for Moreover, expense because allowable consists of a “ ”7 “chargeD”6 incurred,’ ‘must be an injured 1 seq. MCL 500.3101 et 2 500.3107(1)(a). MCL 3 added). Id. (emphasis 4 Co, v State Farm Mut Auto Ins 521, 535; 472 Mich 697 NW2d Griffith (2005). 895 5 DAIIE, 477, 481; Visconti v App (1979), quoting Mich 282 NW2d 360 (1975). Kushay Dairy Co, 69, 74; v Sexton 394 Mich 228 NW2d 205 500.3107(1)(a). 7 Griffith, DAIIE, quoting Manley 140, 472 Mich at 532 n (1986) 169; (Boyle, J., concurring part). NW2d 492 Mich 241 Opinion of the Court

person any who seeks reimbursement attendant care services prove by preponderance must only evidence not the amount and nature of the services rendered, but the caregiver’s expectation also of com- pensation or reimbursement providing atten- dant care. act Because no-fault does not create different depending standards on who provides services, requirement applies equally to services that a member provides and services that an unrelated caregiver provides.

If the fact-finder concludes that a plaintiff incurred allowable receiving care from a family mem- ber, the fact-finder must also determine to what extent any claimed expense is “reasonable charge[].”8 While it appropriate for the fact-finder to consider hourly rates charged by caregivers individual when selling (whether their services employers to their that commer- cially provide those directly injured services or per- sons), comparison hourly charged rates by commer- caregiving cial far agencies is too attenuated from an charge individual’s for the fact-finder simply adopt that agency charge as an individual’s reasonable charge.

In applying principles these of law to the facts of case, this we hold that the Appeals Court of correctly determined that plaintiff may recover “allowable to expenses” the extent that they encompass services that are reasonably necessary for plaintiff’s care when the care is “related [plaintiff’s] injuries.”9 However, because the circuit court erred by awarding damages for expenses allowable without requiring proof that the underlying charges actually incurred, were we agree with the decision of the Court of Appeals 500.3107(1)(a).

8 MCL

9 Griffith,472 Mich at 534. DOUGLAS V ALLSTATE INS CO Opinion of the Court remand case to the circuit court for a determina- this tion whether charges allowable were actu- ally Nevertheless, incurred. that the we also conclude erred Appeals Court to the extent its decision scope limited the of the determination on remand to the 7, Instead, after November the circuit period court must reexamine evidentiary proofs on remand the the entire supporting reject award. While we defen- for a of action request dant’s verdict no cause because fact, there remain unresolved we caution questions only the circuit court that a fact-finder can award proved benefits that are to have been incurred. Finally, in determining hourly rate for attendant services, clearly the circuit court erred by ruling plaintiff is entitled to an rate of hourly for atten- $40 dant care that rate entirely services because incon- sistent with the evidence of individual’s rate of compensation, including wife,

Katherine Douglas, plaintiffs actually received as an employee hired to care for plaintiff. We reverse the judgment of the Court of Appeals on this issue. There- fore, part, we affirm in reverse in part, vacate the award benefits, of attendant care and remand case circuit court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY plaintiff, James Douglas, sustained a severe closed-head brain injury when a hit-and-run motorist struck the bicycle riding. he was Plaintiff was hospital- approximately ized for one month after the accident and received therapy rehabilitation after his dis- charge. Because the driver of the motor vehicle that identified, struck could not be plaintiff sought 492 MICH Opinion of the Court through of a insurance assignment first-party provider Facility.10 facility Claims Michigan Assigned defendant, Allstate Insurance assigned Company, accident, years claim. In the three after the plaintiffs paid plaintiff hospital- defendant PIP benefits for his ization, loss, medical and attendant expenses, wage care, services, in replacement well as for accordance with the no-fault act. Defendant that plaintiff claims did not seek additional PIP benefits after 1999 until he filed instant lawsuit

In plaintiff began the first of a series of However, full-time jobs. job he was unable to hold a very long, eventually and he stopped working. During time, attempted he twice suicide. After the second suicide attempt, a 2005 letter written plaintiffs psychiatrist plaintiff indicated that further “requires treatment” he because “continues to suffer from ill- effects as a result of his injury. closed-head . . .” particular, psychiatrist emphasized plaintiff suffered from short-term memory problems and impul- sivity as a and explained result accident plaintiff opportunity “should have the to obtain the care that will most him likely good restore to a level of functioning.” Defendant claims that it did not receive this letter before initiated this lawsuit. 31, 2005, Plaintiff filed the instant lawsuit on May Circuit Court seeking compensation Washtenaw 500.3172(1) provides person bodily injury [a] entitled to claim because of accidental arising ownership, operation, maintenance, out or use may personal motor vehicle as a motor vehicle in this state obtain protection through assigned plan insurance benefits if claims personal protection applicable injury, [or] no insurance is to the no personal protection applicable injury insurance to the can be identified.... v Allstate Co Ins Opinion of the Court unspecified PIP benefits defendant “has refused or is expected to to pay____”11 refuse Defendant filed three motions, successive dispositive only the first of which was granted.12 here, Relevant the second motion summary disposition claimed that attendant care was not reason ably necessary because none of plaintiffs provid medical ers had prescribed attendant care for plaintiff. The circuit court denied the motion without prejudice advance of further discovery. The third motion for partial summary disposition claimed that plaintiff could not recover for attendant care services provided 7, before November 2006, because plaintiffs treating psychologist, Dr. Tho Rosenbaum, mas neither authorized prescribed nor atten dant care services before that date. opposing motion, plaintiff offered an affidavit from Dr. Rosenbaum, which stated plaintiff in“is need of aide care during all waking hours” and that Douglas Katherine “has been providing her husband care, with aide while the two of them together, are since the motor vehicle accident.” After hearing oral argument, the circuit court denied defen motion, dant’s third ruling that Dr. Rosenbaum’s affidavit created a question of fact that precluded partial summary disposition.

The parties proceeded to a bench trial on the claim for attendant care services that Mrs. Douglas allegedly provided. Defendant’s claims adjuster testified during paid Because defendant during PIP benefits for medical bills pendency suit, only potential PIP benefits at issue were the plaintiffs provided. services that wife partial summary disposition The first motion for claimed that MCL 500.3145(1) any portion plaintiffs barred claim that accrued more year plaintiff than suit, is, one before May commenced the before granted partial circuit court summary defendant’s motion for disposition parties. 500.3145(1), with the consent See MCL which states, part, “may in relevant that a claimant [PIP] not recover benefits any portion year of the loss incurred more than 1 before the date on which the action was commenced.” 492 MICH

Opinion of the Court This as an adverse witness. plaintiffs case-in-chief counsel that agreed plaintiffs witness with back when the [attendant care] have needed “would and that “it would be began” lawsuit first for some of appropriate pay Douglas [the] Mrs. However, ... at on direct provides home[.]” that she counsel, adjuster examination defendant’s the claims any compens- there no evidence that testified that actually plaintiff. able care had been Katherine testified that when she was home, spent “babysitting” her entire time was James,” other “watching performing even while she was household chores. She believed that her in the presence being house from or incarcer- kept plaintiff hospitalized forms, ated. She also testified about a series of each labeled “AFFIDAVIT OF CARE SER- ATTENDANT VICES,” 25, 2007, all dated June each month covering between November 2004 and June 2007. These forms up during totaled the number of hours which she claimed and have outlined the various tasks performed, including organizing family’s that she her day-to-day life, meals, undertaking daily chores, cooking maintaining family’s yard, ordering house and and medications, monitoring plaintiffs communicating with providers Security health care and Social Administration officials, calling from to ensure plaintiff plaintiffs work safety, monitoring plaintiffs safety, cueing prompt- or ing plaintiff However, various tasks for to undertake. she 2007, admitted that the forms were all in June completed did contemporaneously she itemize the amount of item, time spent any particular she on and that com- forms, she pleting through went household bills to during reconstruct what had occurred in her life relevant period. Douglas v Allstate Ins Co Opinion Court began treating plaintiff testified that he

Dr. Rosenbaum 2006, Dou- and recommended that Mrs. on November plaintiffs waking attendant care for all of glas provide he his recom- hours,13 in November 2007 revised although care Dr. mendation to 40 hours of attendant a week. company, TheraSup- also testified that his Rosenbaum L.L.C., care port, plaintiffs provider served as attendant had Mrs. TheraSupport employed Douglas Although her husband’s attendant care. Thera- provide providing Mrs. an hour for Support paid $10 plaintiff, services to it billed an hour for those plaintiff $40 very services. Dr. Rosenbaum averred that defendant eventually paid TheraSupport’s all of bills.

Defendant’s medical Dr. Charles expert, Seigerman, testified that he conducted a battery cognitive tests on and concluded that plaintiff two hours attendant day help organize care services a are needed to logistics of his treatment and ensure that he takes Seigerman ap- his medicine. Dr. also testified that an propriate hourly rate for these services was “around hour,” “[p]erhaps higher,” although or a little $10.00 he acknowledged on cross-examination he was not an expert appropriate on the rate of this service.

The circuit PIP plaintiff, court awarded benefits to that he all explaining waking “needs aide of his court that plaintiff hours.” circuit calculated entitled to a total of 67 hours a week of attendant care 31, 2004, 1, period May the between and November 2007, 1, and 40 after 2007.14 hours week November 13 plaintiffs providers that another of medical Dr. Rosenbaum also noted plaintiff supervisory had recommended in 1997 that receive 24-hour care. corresponded weekday The 67-hour to 7 each and 32 week hours (16 Saturday Sunday), during hours the weekend hours each on corresponded subsequent while the 40-hour to Dr. Rosenbaum’s week recommendation. 492 MICH

Opinion of the Court hourly The court rate established for those $40 2009, judgment 18, services. The entered on November $1,163,395.40, attorney and totaled which included fees, interest, costs, no-fault and judgment interest. affirmed in Appeals part, Court of reversed First, and remanded for further part, proceedings. panel rejected defendant’s claim that the circuit court by denying had erred final summary its two motions for disposition. particular, panel concluded that Dr. question regard- Rosenbaum’s affidavit created a of fact ing whether attendant care services were “reasonably necessary” period began for the before Dr. Rosenbaum treating plaintiff 7, on 2006.15The panel November also claim rejected defendant’s the circuit court had by awarding erred replacement benefits services because the award intended “was not to com- pensate home,” Katherine for her mere presence but instead intended compensate for “plain- required supervision,” tiffi’s] and “Katherine was the appropriate person provide it.”16

The Court of Appeals reversed the circuit court’s award, however, because “the trial evidence in this case did not reflect that Katherine maintained records of her claimed attendant care.”17 had Although Douglas Mrs. forms, submitted several each labeled OF “AFFIDAVIT SERVICES,” CARE panel ATTENDANT concluded that when the descriptions on forms had not been blank,” “left they “vague” were and only constituted “an Thus, effort to reconstruct her time.”18 the panel remanded for further proceedings “regarding 500.3107(1)(a). 16 Co, unpublished opinion per v Allstate Ins curiam (Docket 295484), p Appeals, Court of issued June No. 17 Id. at 6.

18 Id. at 6-7. Douglas Allstate Ins Co

Opinion of the Court amount incurred for attendant expenses care from 7, 2006, 18, 2009,” November to November and to reasonably determine “whether Katherine expected performance.”19 at the time of Finally, panel upheld hourly the circuit court’s rate because $40 supported by rate “is Rosenbaum’s testimony regarding charged by the rate his TheraSupport pro- gram for attendant care and testimony also the adjuster defendant’s regarding charged by rates com- agencies mercial for home attendant care.”20 granted This Court application defendant’s for leave appeal and ordered the parties to brief the following issues:

(1) Appeals remanding whether the Court of erred in this case to the trial proceedings regard court for further ing the amount of incurred for attendant care 7, 2006, 18, 2009, from November to November after finding clearly awarding trial court in erred plaintiff attendant care benefits to the requiring without sufficient support daily documentation to weekly (2) underlying award; hours whether the presented proofs support sufficient at trial to the trial court’s award of attendant care period benefits for the (3) 7, 2006; before November performed whether activities Douglas Katherine constituted attendant care under 500.3107(l)(a) replacement or services under MCL (4) 500.3107(l)(c); clearly and whether the trial court erred awarding attendant per care benefits at the rate of $40 hour.[21]

II. STANDARD OF REVIEW This case involves the interpretation of the no-fault act. statutory “Issues of interpretation are questions

[19] Id. at 7.

[20] Id. v Allstate Ins Co, 490 Mich 927 (2011). 492 MICH Opinion of the Court When interpret- that this Court reviews de novo.”22

law statute, intent ing legislative we must “ascertain the may reasonably be inferred from the words ex- pressed requires the statute.”23 This courts to con- plain meaning phrase sider “the of the critical word or purpose statutory as ‘its the placement well ”24 statutory language unambiguous, scheme.’ If the is Legislature’s judicial “the intent is clear and construc- necessary permitted.”25 tion is neither nor de We review novo the denial of a motion for sum- mary disposition.26 summary A motion for disposition 2.116(C)(10) requires reviewing under MCR court admissions, to consider “the and other pleadings, evi- dence submitted in the parties light most favor- nonmoving Summary able to the is party. disposition if appropriate genuine there is no issue regarding any material fact moving party and the is entitled to judg- ment as a matter of law.”27 2.517(A)(1) jury, civil actions tried without a MCR the court to “find the requires specially, facts state law, its separately entry conclusions of and direct of the appropriate judgment.” findings We review these of fact “ error,28 for clear reviewing which occurs when ‘the court is left with a definite and firm conviction that a

22 Griffith, 472 Mich at 525-526.

23 Services, Inc, v 304, 312; Koontz Ameritech 466 Mich 645 NW2d 34 (2002). 24 Ward, Valley Sun v 230, 237; Foods Co 460 Mich 596 NW2d 119 (1999), quoting Bailey States, 137, 145; 501; v United 516 US 116 S Ct (1995). L133 Ed 2d 472 Griffith, citing Koontz, 472 Mich at 466 Mich at 312. (2007). Simmons, 8, 12; 477 Mich 727 NW2d 132 Saffian (2007). Brown, 545, 551-552; Brown v 478 Mich 739 NW2d 313 Holland, Advertising, City 2.613(C); Adams Inc v Outdoor MCR (2001). 675, 681; 625 NW2d 377 Ins Co v Allstate

Opinion op the Court ”29 made.’ mistake has been

III. ANALYSIS THE NO-FAULT ACT A. BACKGROUND OF LEGAL 500.3105(1) personal protec- establishes that a act under no-fault provider tion insurance liable bodily injury arising out “to benefits for accidental pay or maintenance use of a ownership, operation, vehicle, subject provi- a motor motor vehicle as 500.3105(1) Accordingly, MCL chapter.” sions of this PIP requirements causation imposes two threshold benefits: First, only is liable if benefits are an insurer “for bodily injury.. implies “[F]or” ..” a causal

accidental bodily injury” triggers “[Alccidental connection. therefore liability. liability scope of that an insurer’s defines pay only Accordingly, no-fault insurer is liable to benefits causally extent that claimed benefits are con- injury arising bodily nected to the accidental out of an automobile accident.

Second, pay is liable benefits for accidental an insurer injuries bodily injury only if out of” “aris[e] those or are by ownership, operation, caused “the maintenance or use bodily any injury It of a motor vehicle ....” is not triggers liability an insurer’s under the no-fault act. Rather, injuries only those caused it is are vehicle.[30] insured’s use of a motor 500.3107(1) further com- limits what benefits are benefits, pensable allowing as PIP unlimited lifetime limiting “ordinary but expenses” benefits for “allowable to a necessary three-year period services” after daily accident and limit: $20 quoting Ross Auto Club Griffith, Kitchen v 472 Mich at 531 Kitchen, Group, (alterations Mich 654, 661-662; 1, 7; original). 641 NW2d 245 NW2d 552 (2008), (2002). 492 Mich 241 op Opinion the Court

Except (2), personal protec- in subsection payable tion following: insurance benefits are for the (a) expenses consisting Allowable of all reasonable charges reasonably incurred for necessary products, ser- vices and injured person’s care, accommodations for an recovery, or rehabilitation. .. .

(c) Expenses exceeding per day, reasonably $20.00 obtaining ordinary incurred in necessary services in that, lieu of those if he injured, or she had not been injured person performed would have during the first 3 years accident, after the date of the not for income but for the benefit of himself or herself or of dependent. his or her This Court’s decision in Johnson v Recca clarified that the “ordinary and necessary services” contemplated subsection (1)(c) commonly referred to as “replace —

ment services” —constitute a category of expenses dis tinct from the “allowable expenses” contemplated in (1)(a).31 subsection

This case requires this Court to consider whether specific services at issue here were “allowable ex- penses”32 or whether they were replacement services.33 The distinction between allowable expenses and re- placement services important in this case because the operation of the one-year-back rule, MCL 500.3145(1), prevents plaintiff from recovering benefits for other- wise allowable expenses incurred more than one year before the filing Thus, of the lawsuit. plaintiff cannot recover benefits for otherwise allowable expenses in- 31, curred May before which nearly eight Recca, (2012). Johnson v 169, 176; 821 NW2d 520 500.3107(1)(a). MCL 500.3107(1)(c). MCL Co Allstate Ins Opinion of the Court Because re- accident. July 1996 plaintiffs after years those limited to services is replacement covery for years after in the first three services re- benefits for any recover accident, cannot case, plaintiff Accordingly, this services. placement extent that to the for services only can recover benefits the mean- within expenses allowable were services 500.3107(l)(a) May after and incurred ing of MCL expenses” of “allowable It is to the definition 2004. now turn. we expenses

B. allowable 500.3107(1)(a) expenses” defines “allowable MCL reasonably charges incurred for neces “all reasonable for an and accommodations sary products, We care, recovery, or rehabilitation.” injured person’s of this language provi recognized plain have a PIP claimant imposes requirements four sion allowable recovering benefits for prove must before (1) injured per for an expense must be expenses: (2) care, rehabilitation, expense recovery, or son’s (3) expense must be reasonably necessary, must be (4) We incurred, charge must be reasonable.34 apply as we requirements will address these seriatim facts of case. them to the “FOR” AN INSURED’S CARE, RECOVERY, 1. SERVICES OR REHABILITATION 500.3107(1)(a) that allowable requires or care, recovery, injured person’s must be “for an v State explained As we rehabilitation.” Griffith Co, “expenses Insurance Farm Mutual Automobile in order expended ‘rehabilitation’ are costs ‘recovery’ or See Griffith, 472 Mich at 532 n 260 492 Mich 241 Opinion op the Court to a bring ability to insured condition health or life,” to preinjury expenses sufficient resume his while “care” “may for not restore a to his person preinjury While the “can dictionary state.”35 definition of “care” broadly anything encompass be construed to reasonably necessary to the of a provision person’s 500.3107(1)(a) protection charge,”36 or because MCL “specifically charges prod limits to reasonably or services that are for an necessary ucts injured person’s care, recovery, or . . . rehabilitation^] suggests [t]his context that ‘care’ must be related to the In injuries.”37 insured’s the comparing definition of “care” to the definitions of “recovery” and “rehabilita tion,” we concluded meaning

“[c]are” must have a broader that is than “recov ery” and so “rehabilitation” but is not broad as render to “[RJecovery” nugatory.... those terms and “rehabilita underlying injury; likewise, refer tion” to an as statute applies only injured to “an person.” whole It follows Legislature scope intended to limit term of the expenses products, services, “care” to for those or accom provision injury modations whose is necessitated sustained in the motor vehicle accident. “Care” is broader “recovery” may than en “rehabilitation” because it compass expenses products, services, and accommoda necessary tions that are because of the accident but state.[38] may person preinjury not restore a to his We reaffirm here definition of as it “care” Griffith’s expenses: relates scope although allowable ser- for an vices insured’s need not restore a person his state, be preinjury the services must related to the in- injuries sured’s to be allowable expenses. considered Id. Id. at 533. omitted). (quotation Id. at 534 marks Id. at 535. Co Allstate Ins Opinion of the Court requirement applied this analyzing case, we note that claimed particular examined the Appeals Court of prior panels can be family member’s services extent to which act. In under the no-fault considered allowable Inter-Insurance Ex- v Detroit Automobile Visconti to work- analogized no-fault benefits panel change, “ ‘[o]rdinary benefits and ruled that er’s compensation ” are performs that a member household tasks’ “ ‘[s]erving meals in bed but expenses, not allowable escorting person a disabled dressing, and bathing, ”39 tasks’ and can therefore ordinary are not household to MCL expenses pursuant be considered allowable 500.3107. panel applied Court of Vis- subsequent Appeals

A to recover no-fault conti and allowed family “required member was benefits when bed, him, escort him to the meals in bathe serve his him in with his office, conformity exercise doctor’s diet, in instructions, formulating assist his doctor’s medication, and him speech assist with administer that, therapy.”40 The Court also held and associational family member who these though even medical care provider, “[t]he not a licensed services was supplied that these services be require does not statute words, In while personnel’.”41 medical other by ‘trained and limits what specifies types the no-fault act on places it no limitation compensable, are expenses otherwise an allowable ex- may what is perform who pense. 39 Visconti, 481, quoting Kushay, App 394 Mich at 74. Mich 90 40 Co, Fidelity 171, 180; App American Fire Ins Van Marter v (1982). NW2d 41 Id. MICH Opinion Court language

The statutory of MCL 500.3107 confirms family between a member providing distinction to an injured person attendant care is “for an —which care”42—and a injured person’s member providing entire replacement services benefit the household— “ordinary and necessary which are services” that re place the injured person services would have performed benefit of or herself “for the himself or of his or dependent.”43 Accordingly, her we reiterate this holding Court’s replacement recent Johnson 500.3107(1)(c) services as described MCL are distinct 500.3107(1)(a).44 from allowable under Allowable expenses “ordinary cannot be for and neces sary ordinary necessary services” because injured care, are not “for an person’s recovery, or rehabilitation.” case, defendant that a judgment claims of no

cause of action be should entered because Mrs. Douglas any did not perform allowable compensable expenses, services, only replacement not compensable which are in this case of the three-year because time limit of MCL 500.3107(1)(c). disagree We with defendant’s claim and conclude that defendant is not entitled to relief on this issue.

Defendant correct Douglas’s is that Mrs. testimony and attendant forms that she provided indicate many services that are properly replacement considered services, including daily organization family life; meals; house, preparation yard, and car main- tenance; daily and chores. These are prototypi- services cal “ordinary necessary” and that every services Michi- 500.3107(1)(a). MCL 500.3107(1)(c). 44Johnson, 492 Mich at 176. Douglas Allstate Ins Co Opinion Court replacement must undertake.45 While gan household by be necessitated might for the household would have injured person if the otherwise injury and himself, they are not his care them performed the definition of allowable therefore do not fall within Nevertheless, Douglas the fact that Mrs. expenses. preclude services does not performed replacement some actually that were recovery for the allowable incurred, attendant care The fact including services. replacement list certain that her attendant care forms issue, especially given on this dispositive services is not reasonably on those forms can that other services listed services, including attendant care travel- be considered communicating plaintiffs pro- to and with medical ing and medication. managing plaintiffs viders “is Plain- Douglas The circuit court ruled that Mrs. her free time basically spends tiffs caretaker for, that Plaintiff is cared and does not making sure himself attempt.” harm as he tried to do a suicide erroneous because it finding clearly This factual is that Douglas’s testimony is consistent with Mrs. she “watching performing James” even while she was Furthermore, suggests household chores herself. it argument court adopted plaintiffs the circuit Mrs. constituted attendant care Douglas’s supervision services. claim that Appeals rejected

The Court of defendant’s only provided replacement Mrs. services and argues Douglas’s might Mrs. tasks Plaintiff also that while some of services, replacement therapeutic there in ensur be considered value activities, although they require ing plaintiff is involved with these However, testimony Douglas’s supervision. Mrs. adduced trial during Douglas explained Mrs. undermines this rationale because dishes, week, cooking, washing cleaning spent when she time “ children, house, caring ery [v] did little” to assist her for her chores, in these instead often watched television. but

264 241 492 Mich Opinion of the Court compared the claimed supervision with this state’s workers’ compensation caselaw that “on-call” allows supervision,46 even when the care provider pursuing is other tasks while on call.47We affirm the result of the Court of on Appeals this issue and hold that defendant is not entitled to a verdict of no cause of action on the basis of its claim that Douglas Mrs. only provided replacement services because there testimony given at trial that at least some of the services she said she had were consistent the requirement with 500.3107(1)(a) of MCL allowable be for injured person’s care as by necessitated the injury sustained in the motor vehicle accident.48 instance, For if even Mrs. Douglas’s supervision claimed does not restore plaintiff state, to his preinjury testi mony given at trial indicates that arguably least some of this claimed supervision was for plaintiff’s care necessitated the injury sustained in the motor vehicle accident and not for ordinary and necessary every services that Michigan household must under take. Accordingly, defendant is not entitled to relief on the claim that none of Mrs. Douglas’s claimed services could be considered attendant care services within the 500.3107(1)(a). meaning of MCL 2. REASONABLYNECESSARY EXPENSES 500.3107(1)(a) also requires allowable expenses to be “reasonably necessary.” Krohn v Home-Owners Ed, v Morris Detroit Bd 189, 197; App 243 Mich 622 NW2d 66 (2000) (“[O]n-call compensable compensa [workers’ under statute.”). tion] Co, Advertising Brown v Eller Outdoor 538, 543; App (1981) (“The might NW2d 685 fact that Mrs. Brown use her ‘on call’ time perform household tasks does not alter the ‘nature of the service service.”). provided’ or the ‘need’ for the Griffith, See 472 Mich at 535. Co Allstate Ins Opinion of the Court Co, Insurance this Court clarified that this requirement by using objective “must be assessed standard.”49 questions Defendant the reasonable of atten- necessity dant care period 7, services for the before November 2006, because there was medical prescription no attendant care services before that date.' ruling

Before the circuit court’s on defendant’s third for summary disposition, plaintiff motion of- Rosenbaum, fered the affidavit Dr. explained of who that “is in need plaintiff during [attendant] of all waking and that hours” Mrs. had that care “since time the [the of] motor vehicle accident.” The circuit court of based its denial defen- in part dant’s motion on Dr. Rosenbaum’s affidavit. decision, In reviewing that the Court of Appeals that determined “the affiant relied on the statements the determine parties activity plaintiff’s what engaged during subject period wife and subse- evaluated quently those activities and found them to meet the definition of care.”50 Thus, attendant held that the circuit did panel by concluding court not err that there questions were of fact sufficient to defeat summary defendant’s motion for partial disposition. We agree with the Court of Appeals questions of fact precluded summary disposition on this issue.

Moreover, we conclude that it was not clear error circuit court as fact-finder to conclude that were, fact, attendant care services reasonably necessary for the period 7, before November There a factual in the support basis record to circuit court’s conclusion: Dr. Rosenbaum testified at that, early 1997, trial plaintiffs as had doctors Co, 145, 163; Krohn v Home-Owners Ins 802 NW2d 281 (2011). 50 Douglas, unpub op at 4. 492 Mich 241 Opinion of the Court receive 24-hour plaintiff supervi-

recommended Furthermore, adjuster defendant’s claims sion.51 that, agreed plaintiffs with statement counsel time if needed attendant care services trial, [those “he would have needed back services] evidence began[.]” when the lawsuit first This for the circuit court conclude that sufficient be- cause attendant care reasonably services were neces- (a sary point after November that defendant dispute), they does not reasonably were also neces- result, sary before that date. As a defendant has clearly established circuit court erred this element of the concluding plaintiff proved expenses analysis. allowable

3. INCURREDEXPENSES 500.3107(1)(a) also expenses limits allowable to is, if “charges incurred.” That even a claimant can show reasonably services were for his and were necessary, obliged pay any insurer “is not to amount except upon submission of evidence that services were 51Although opinion following the circuit court’s the trial referred to Dr. Rosenbaum’s affidavit its conclusion that attendant care reasonably necessary, during services were trial the court had sus objection tained defendant’s to the admission of that affidavit. How ever, granting objection its reason for defendant’s was that the court testimony.” [Dr. Rosenbaum’s] had “heard live Because that live testimony clearly supports finding, the circuit court’s factual and specifically because the circuit court that Dr. concluded Rosenbaum’s “opinion [p]laintiff as to reasonable attendant care needs of is both appropriate convincing,” referring and the circuit court’s error in affidavit, testimony, Dr. Rosenbaum’s rather than his live is harmless. 2.613(A) (“[A]n ruling ground See MCR error in a or order ... is not granting trial, verdict, setting vacating, a new a aside or for modifying, disturbing judgment order, or otherwise a or unless refusal appears take this action to the court inconsistent with substantial justice.”). v Allstate Ins Co Opinion of the Court actually rendered and of the actual cost expended.”52 Because an liability insurer’s specific payments involved,

cannot be detached from the or expenses incurred,... plaintiff [w]here a is unable to show particular, that a expense reasonable has been incurred for reasonably necessary product service, there can be no finding duty of a breach of the pay insurer’s expense, finding liability regard thus no with to that expense.[53] This Court has defined “incur” as it appears in MCL “

500.3107(1)(a) as ‘[t]o become liable or subject to, ”54 [especially] because of one’s own actions.’ Similarly, a “charge” is a “[pecuniary burden, cost” or price “[a] required or demanded for service rendered goods or supplied.”55 Thus, the statutory requirement “charges” be “incurred” requires degree some of liabil ity that exists as a result of the insured’s actually having received the underlying goods or services. Put differently, because charge is something “required or demanded,” the caregiver must have an expectation that she be compensated because there is no “chargeG incurred” when a good or service is provided with no expectation of compensation from the insurer.56 Accord- 52Manley, (emphasis added); 425 Mich at 159 see also v State Proudfoot Co, (2003) 476, 484; Farm Mut Ins (holding 673 NW2d 739 expenses question “[b]ecause yet ‘incurred,’ were not the Court of Appeals ordering pay erred in defendant to the total amount to the trial incurred). court” for disbursal to are Ins Ass’n, (1990). 33, 50; Nasser vAuto Club 457 NW2d 637 54Proudfoot, 484, quoting 469 Mich at College Webster’s II New (2001) (alterations Dictionary original). 55 (6th English Dictionary ed), 1 Shorter p 385. Oxford 56 course, caregiver provides Of family who services to a member need present family not a formal bill to the member or enter into a formal family contract satisfy with that requirement member in order to the caregiver expectation payment the have an of from the insurer (although will, arrangements course, satisfy those evidentiary of the Mich Opinion the of Court Co Insurance noted in Burris v Allstate this Court

ingly, for compensation “expected must have caregivers of compensa- the expectation Without their services.”57 the plaintiff to establish that tion, fail[s] “the evidence expenses.”58 attendant-care ‘incurred’ can be have been incurred charges The fact that contract for means,” including “a “by various shown The require- “a bill.”59 paid and services” or products because a extinguished simply ment of proof a commercial health member, rather than family contract, However, bill requirements). in the absence of a formal or even family expected compen member evidence that the there must be some providing actual rendered. the services and of the sation for words, a fact-finder to conclude that there must be some basis for other insurer, expectation compensation caregiver from the had some of primary expectation compensation motivation of was not the even if the family suggestion, Contrary providing the dissent’s the care. provide in the absence of an care even member’s determination expecting compensation payment from is not inconsistent with insurer’s charge insurer, present expectation be for a but the must nevertheless 500.3107(1)(a). expecta meaning of MCL This to be incurred within the provided simply time the services were tion of at the statutory phrase “charges dictionary applies definitions of incurred.” (2008). Co, v Allstate 480 Mich 1081 Burris Ins claim that the the Burris dissent’s Id. The dissent reintroduces limited to the facts interpretation “incur” in “was of the word Proudfoot case, plaintiff sought payment advance of which future J., Burris, expenses.” citing 480 Mich at 1088 (Weaver, Post at However, correctly explained dissenting). the Burris concurrence to the Court’s “[t]his factual distinction... is irrelevant Proudfoot ” Burris, meaning 480 Mich at 1084 of the term ‘incur.’ discussion of dictionary J., concurring). adopted definition Proudfoot (CORRIGAN, obligation pay.” “incur,” legal equitable requires “a or the word which family differently than treat members Id. Because “there is no basis to .., . the insured’s members hired attendant-care-service workers friends, any perform just provider, the services with like other must reasons, expectation payment.” For these we Id. at 1085. a reasonable reject the dissent’s characterization Proudfoot. 59Proudfoot, n 4. 469 Mich at 484 Co 269 v Allstate Ins Opinion of the Court Indeed, acts as a provider, caregiver. claimant’s 500.3107(1)(a) does not a in distinguish “chargeD curred” when a member one family provides from incurred when an unrelated medical professional pro result, only evidentiary vides care.60As a there one is standard determine whether were incurred expenses regardless of who provided underlying Any services. charges insured who incurs for present services must proof establish, by of those order to charges evidence, of preponderance that he is entitled PIP benefits.61 evidentiary requirement

This most easily satisfied when an insured caregiver or a submits itemized state- ments, bills, contracts, or logs listing nature of services with sufficient detail for the insurer to determine they Indeed, whether are compensable.62 way the best of proving caregiver that a “ex- actually pected compensation [her] for at services” the time the 60 500.3107(1)(a) distinguish “charges Because MCL does not incurred” “charges for a member’s from professional services incurred” for a provider’s services, position healthcare it is the dissent’s that lacks support statutory language. simply, “charges” in the Put must he compensable “incurred” order to be under the no-fault act. It is this statutory language expression legislative we must consider as the may nothing intent “a unambiguous because court read into statute within Legislature is not the manifest intent of the as derived from Hosp, words statute itself.” Roberts v Co Mecosta Gen Mich 466 (2002). 57, 63; NW2d 642 663 61 Advocacy Org Ass’n, S ee & Patients Providers Auto Club Ins 257 365, 380; (2003) App (noting Mich preponderance 670 NW2d 569 proof expense the evidence standard for that an allowable is reasonable (2005). necessary), and aff 'd 472 Mich 91 Proudfoot, payments we reiterated and services future products actually are not due until are incurred. For instance, explained may declaratory “[a] we that while trial court enter ‘a judgment determining expense necessary that an is both and allowable allowed!,] [s]uch the amount that will be (cid:127). . declaration does not oblige pay actually expense a no-fault insurer for an until it is ” Proudfoot, 484, quoting Manley, Mich at incurred.’ Mich

Opinion of the Court for the to docu- caregiver rendered63 is were with charges contemporaneously the incurred ment in another in a formal bill or them —whether providing logs specificity with memorialized statement submit of services rendered —and nature amount reasonable the insurer within a documentation to that were rendered. While of time after the services amount method be this statutory provision requires no expenses to to establish entitlement allowable used —a a to conclude testimony can allow fact-finder caregiver’s failure incurred —a claimant’s expenses have been in a expenses for allowable request to reimbursement the rule one-year-back the risk that timely fashion runs benefits, as limit the entitlement to will claimant’s to here commenced a lawsuit occurred when have alleged that were to recover allowable expenses Moreover, one year incurred more than earlier.64 been for payment a claimant from the insurer once seeks services, request can ongoing insurer providing of and amount logging statements nature regular the claimed services are those services to ensure compensable. failure to con- problem caregiver’s provide of a ex- of allowable documentary evidence

temporaneous Mrs. case, in this in which aptly is illustrated penses 63Burris, 480 Mich at 1081. previously, seem to be inherent in the notion As noted it would requirement expectation for the there is some sought give payment being caregiver for to notice to the insurer that 500.3107(1)(a) However, compensable

particular does not services. MCL any particular require a claim for allowable to occur within Nevertheless, recovery one-year-back may preclude for a rule time. doing entitlement without claimant who sits on his or her to benefits lawsuit). Thus, attempt recovery (including commencing anything to 500.3145(1) any “may for a claimant not recover benefits states that year portion loss more than 1 before the date on which incurred action was commenced.” Co Allstate Ins Opinion of the Court Douglas submitted documents constructed in one day over proof approxi services rendered the course of mately years. three The lack of contemporaneous docu mentation her implicates credibility regarding whether actually services were rendered the manner Moreover, documented.65 this failure provide contem poraneous may documentation also be relevant to the fact-finder’s determination whether Mrs. Douglas actu ally expected payment those providing services. In case, the circuit court failed make a finding regarding incurred, whether the charges actually were including whether Mrs. Douglas expected compensation or reimbursement at the she provided time the services. Nevertheless, the circuit court awarded plaintiff atten dant care benefits hours week for period May 31, 2004, between 1, 2007, and November and 40 hours a period 1, week for the 2007, between November November 2009. The Court of Appeals re manded this case circuit court allowed the circuit court to “take additional if testimony, necessary, and amend its findings or render findings, new amend the judgment accordingly.”66 The panel identi fied three problems with the circuit court’s award of attendant care benefits: the circuit “clearly court erred in awarding attendant care plaintiff benefits to without requiring sufficient documentation support to the daily or weekly hours the underlying award”;67 it erred by to failing consider [Mrs. “whether Douglas] reasonably expected compensation at the time performance”;68 of 65 Contrary suggestion, the any to dissent’s this observation does not in way province fact-finder, invade the who remains the best position weigh credibility to of all the a evidence that claimant presents support to a of claim entitlement to benefits. 66Douglas, unpub op at 7.

67Id.

68Id. Mich 241 Opinion of Court made to payments account for to by failing

and it erred which em- TheraSupport, agency, Rosenbaum’s Dr. pro- care attendant Douglas plaintiffs Mrs. ployed vider.69 neces- proofs of importance underscore the

We The circuit to benefits. to entitlement sary establish plaintiff of without favor judgment issued court given actually incurred finding expenses that the were to award of hours its of the number determination pre- in the evidence had no discernible basis plaintiff Mrs. not examine whether trial did sented for her ser- payment of expectation had the for 40 hours While it awarded benefits vices. beginning the period care services for of attendant week Dr. 2007, in accord with Rosenbaum’s 1, November that Mrs. findings there is no basis for its prescription, of care each week hours Douglas actually provided Indeed, because she was unavailable during that period. hours, her there is working during provide any her for hours that she compensating no basis for Similarly, the home.70 the award working outside spent 2007, made with period before November for Therefore, the Court in the record. no discernible basis that award could recognized Appeals properly remanded case appropriately not be sustained and fact on the evidence.71 findings based Appeals’ cross-appeal determination Id. Plaintiff did not Court of clearly by awarding PIP benefits for allowable the circuit erred court underlying proof support award. without sufficient instance, person explained, “Katherine is the The court employed care], outside [provide she because she is full-time but cannot pay appropriate [defendant will not the home and because any [p]laintiff.” of her care for rate for hours Appeals’ remand that of decision to Defendant claims the Court proofs present already opportunity improper plaintiff had to because Douglas provided. regarding that Mrs. attendant care services Co Allstate Ins Opinion of the Court Although the Court of established the Appeals scope of the determination of remand the period after 7, 2006, direct the November we circuit court make findings they of fact to the entire pertain period of the lawsuit. The of not Appeals explain Court did how it 7, decided only period after November remand, be on important, should considered and more nothing there is in of Appeals’ opinion the Court or in the circuit court record that indicates the circuit period May 31, 2004, court’s award for the between 7, 2006, November falls the ruling outside of the Court Appeals of that the circuit “award[ed] court attendant plaintiff requiring benefits without sufficient support documentation to or daily weekly hours underlying award.”72 we Accordingly, vacate the Instead, Appeals’ruling defendant claims since the Court of that the “requir[e] support circuit court did sufficient documentation to daily weekly underlying uncontested, or hours the award” is a verdict of Douglas, unpub no cause of action be op should entered. at 7. We disagree. Appeals acknowledged The Court “the trial evidence in case did this not reflect that Katherine maintained records her claimed that, most, “[a]t attendant care” and there was evidence that Katherine completed 25, 2007, ‘affidavit of attendant care services’ forms on June past for certain months in an effort her to reconstruct Id. time.” at 6-7. holding Appeals emphasized The of the Court of the fact that the circuit findings insufficient, legally court’s Appeals’ were and the Court decision, highly proofs provided, while critical of some of the did not any indicate that the circuit court could not sustain award for attendant Accordingly, Appeals’ care services. we affirm the Court of decision to findings regarding whether, remand for extent, of fact and to what actually case, allowable were incurred in we do not Appeals’ ruling disturb the may Court of that the circuit court take 7.216(A)(5). testimony additional on remand. See MCR 72Douglas, unpub op only significance discernable of that 7, 2006, represents date in record is that November the date began signifi with treatment Dr. Rosenbaum. While we considered determining cance of in “reasonably this date whether services were necessary” specific prescription care, the absence of for attendant independent significance determining this date has no whether ser actually were vices incurred. Opinion Court of the clarify care benefits

entire award of attendant the entire court must examine on circuit remand submitted suffi- plaintiff to determine whether period incurred but were expenses cient that allowable proofs not reimbursed.73 CHARGE FOR EXPENSES

4. REASONABLE that a plaintiff concluded Once a fact-finder has care receiving from allowable incurred must whether member, the fact-finder determine case, the circuit is “reasonable.”74 this charge at a care benefits to court awarded attendant court not the circuit did hourly Although rate. $40 rate, hourly the Court of state the basis its explicitly adduced at pieces two of evidence Appeals identified Dr. ruling: for the circuit court’s justification trial as testimony company charges that his $40 Rosenbaum’s testimony of defen- for attendant care and hour that commercial adjuster regarding dant’s rates care con- for attendant services. We agencies charge regarding the rates testimony clude that too is based on factors agencies charge commercial rate for underlying charged from those attenuated of attendant care services provision an individual’s charge as reasonable for be an individual’s adopted particularly care is a erroneous attendant services. This Mrs. actu- Douglas finding given circuit court company Dr. Rosenbaum’s ally an hour paid $10 Why husband. care services her providing attendant Appeals Court of that the circuit note the observation of the We also already paid had the extent to which defendant court failed consider Douglas performed that Mrs. for the attendant benefits employee. Any serving award issued on Rosenbaum’s while Dr. already that have been reimbursed. remand must include services 500.3107(1)(a). Douglas v Ins Allstate Co Opinion Court the circuit court believed that commercial rate Dr. than charged Rosenbaum was more relevant what he is paid unjustified Mrs. unstated on this Accordingly, record. the circuit court’s rate hourly $40 clearly erroneous. Although issue, this Court has not ruled on the Appeals Court of Bonkowski Allstate Insurance Co that a stated commercial agency’s rate attendant care services is irrelevant to the fact-finder’s determi- nation of what family constitutes a reasonable rate for a provision member’s of Judge those Then services. ZAHRA, writing court, for the noted “[i]n determin- ing compensation reasonable for an unlicensed person services, who health provides a fact-finder may consider the compensation to paid licensed health care professionals provide who similar services.”75 The opin- ion on to went state that the fact-finder’s “focus should be on the compensation person to provided the provid- ing services, the the not an charge agency associated that hires health care professionals provide to such services.”76 compensation actually paid caregivers who

provide similar services is necessarily relevant the fact-finder’s determination of charge reasonable for a family member’s these provision of services it because the helps fact-finder to determine what the caregivers could receive on open the market. aWhile commercial agency’s fee incorporates this relevant piece of data— the it pays caregivers to its also—it incorporates additional into charge family costs its members who provide incur, do particularly not the overhead costs inherent in the agency’s provision of Co, Bonkowski v Ins 154, 164; Allstate App 281 Mich 761 NW2d 784 Matter, (2008), citing Van App 114 Mich at 180-181. 76 Bonkowski, App at 165. Mich 241 Opinion the Court is too attenuated Thus, agency rate total

services. agency rate component from particular instant determine in the case— the fact-finder must providing to the person “the compensation . .”77 services . . in Bonkowski reasoning do not adopt

While we the fact- agree we with Bonkowski entirety, its compensation. must on an individual’s finder’s focus be may base the we hold that fact-finder Accordingly, atten- family provision rate for a member’s hourly agencies health care com- dant care services on what care agencies but what health pensate employees, their from the appro- their is too attenuated charge patients rate services to be priate hourly for a member’s Rather, fact-finder must determine controlling.78 charge provi- what a reasonable an individual’s services, agency an rate agency’s. sion of While rate, it some relation to an individual’s might bear rate in uncritically adopted cannot an individual’s be that warrant such specific circumstances absence has instance, caregiver a rate —for when individual of a overhead and administrative costs similar those agency.79 commercial

77 id. 78 Contrary suggestion, appropriate that in to the dissent’s we believe that a full-time the fact-finder should consider benefits circumstances employee part would as of her total attendant care services receive Indeed, “compensa compensation package. term Bonkowski’s use of the Bonkowski, tion,” “wage,” supports conclusion. rather than further this App at 165. admissibility rates, agency this case is about While helpful may point comparison in which in fact be as a fact-finder charge provision determining for an of atten a reasonable individual’s instance, services, dant we conclude that fact-finder care clearly hourly by adopting appropriate rate as the rate for Mrs. erred Douglas’s provision of attendant care services. Douglas v Allstate Ins Co Opinion op the Court This case does not reflect such circumstances. Rather, there is undisputed testimony Mrs. Dou- glas actually received an hour in providing $10 atten- dant care services to plaintiff during the time she Dr. served as Rosenbaum’s employee. Because this figure is the rate she actually received providing for services, attendant care highly it is probative of what constitutes a charge reasonable for her services. There- fore, agree we with defendant the circuit court clearly erred ruling plaintiff is entitled to a $40 hourly rate for Mrs. Douglas’s attendant care services. only evidentiary basis for that figure is the rate that commercial agencies charge for attendant services, and that rate is far too attenuated from an caregiver’s individual actual rate of compensation to serve as the sole basis for the award of benefits these Therefore, if circumstances.80 the circuit court con- cludes on remand that has proved his entitle- ment to benefits for Mrs. Douglas’s services, the circuit court, fact-finder, must establish a new hourly rate based on an individual caregiver’s hourly rate.

IV CONCLUSION 500.3107(1)(a) Today we reaffirm that MCL imposes four requirements that an insured prove must before (1) PIP recovering benefits for expenses: allowable expense must be an injured care, person’s recovery, (2) rehabilitation, or the expense reasonably must be (3) (4) necessary, the expense incurred, must be 80 The testimony dissent’s claim that “the trial court heard from which Douglas quit job it could conclude that Mrs. would need her outside the provide plaintiff home in order to with the attendant care his doctor prescribed” simply determining charge irrelevant the reasonable attendant care services that were while Mrs. employed outside the home. Post at 293-294. Mich Opinion of the Court are expenses Allowable

charge must be reasonable.81 in that allow- replacement from services distinguished “relate[s] care as it are the insured’s able injuries.”82 to the insured’s relief on its claim that not entitled to Defendant is services, not Douglas only replacement provided Mrs. the circuit court did not because expenses, allowable Douglas plaintiffs that is clearly ruling err Mrs. on also not entitled to relief its caretaker. Defendant is reasonably care claim that attendant plaintiffs necessary specific prescription in the absence of testimony of Dr. attendant care services because adjuster claims Rosenbaum and defendant’s necessity factual basis for the reasonable those ser- vices at all times relevant this case. to remand Appeals’

We affirm the Court of decision for further but we hold that the proceedings, this case remand the entire encompass consideration on must charges empha- for which are claimed. We also period court, necessity the circuit as the fact- size finder, on ruling proofs must base its show com- Douglas actually provided extent to which Mrs. Therefore, on attendant care services. re- pensable mand, apply the circuit court must standard of opinion outlined in this to determine whether proof “charges” has were “incurred” for plaintiff proved care. In the circuit court must determine particular, his the number of proved the extent to which has Douglas actually provided hours that Mrs. attendant actually expected and whether she com- Finally, for those services. we reverse pensation the circuit Appeals’ regarding Court of decision court’s rate of and conclude that hourly assessment of $40 81 Griffith, 472 Mich at 532 n 8. See 82Id. at 534. v Allstate Ins Co Dissenting Opinion by Cavanagh, J. hourly clearly rate is erroneous because it caregiver’s hourly

unrelated to an individual rate. case, in hourly While we do not establish an rate the circuit court must establish a rate that is consistent services, caregiver’s with an individual rate for rather agency’s than a commercial rate.

Affirmed in reversed in award of atten- part, part, dant care benefits vacated and case remanded for proceedings further consistent with this opinion. Mary con- Markman, Kelly, Zahra, Beth JJ., curred with Young, C.J. I (dissenting). major dissent from the

CAVANAGH,J. ity’s interpretation erroneous of the phrase “charges 500.3107(1)(a) incurred” in MCL resulting and the creation evidentiary requirements of that lack any basis in statutory language. Likewise, I dissent from the majority’s misguided limitation on the scope evidence may be considered when determining whether a 500.3107(1)(a).1 charge is “reasonable” under MCL Although statutory the rules of interpretation are established, well warranted, brief review is given the majority’s failure to adhere to these principles. This Court’s primary goal is to “discern and give effect to the intent of the Legislature.” Sun Valley Ward, Foods Co v (1999). 230, 236; 460 Mich 596 NW2d 119 “The words a statute provide the most reliable evidence of its omitted). intent. ...” Id. (quotation marks and citation When the language a statute is unambiguous, “the 1 Additionally, interpretation I continue to believe that of MCL majority opinion v State 500.3105 and MCL 500.3107 from the Griffith Co, Farm Mut Auto Ins 521; (2005), NW2d which the majority applies case, in this is incorrect for the reasons Marilyn dissent. See id. at 542-554 (Marilyn Justice Kelly’s Griffith J., dissenting). Kelly, 492 Mich 241 Dissenting Opinion Cavanagh, J. meaning clearly have intended the

Legislature must and the statute must enforced as writ- expressed, be Accordingly, judicial “[n]o ten.” Id. further construction or Id. required permitted.”

I. “CHARGES INCURRED” 500.3107(1)(a), in personal protection Under (PIP) expenses.” surance benefits include “allowable goes The statute on to that an explain “allowable of, expense” among things, “charges consists other qualifying products incurred” for certain or services. incurred,” From the “charges majority mys words teriously evidentiary divines new that an requirements satisfy insured must in order to obtain PIP benefits. majority that, the in Specifically, determines order to incurred, that charges show were an insured must (1) caregiver expected establish that the (2) rendered, 267, for the services see ante at caregiver’s the “at expectation payment arose the caregiver] services,” [the time the ante provided see majority’s newly 271.2 Neither of the created require ments are the supported statutory language at issue. A. CAREGIVER’S EXPECTATION OF COMPENSATION I disagree majority’s with conclusion that MCL 500.3107(l)(a) a requires showing caregiver Rather, I expected compensation. continue to believe caregiver’s payment is irrel- expectation obligation “charges evant because the incurred” pay majority’s caregiver Included within the conclusion that must expect payment preference is an additional that documentation charges majority be in “memorialized statement” because the way proving” considers such documentation to be “best entitle part ment to PIP benefits. Ante at 269-270. For the reasons discussed in 1(A), disagree. I Allstate v Ins Co Dissenting Opinion by Cavanagh, J. 500.3107(1)(a) under MCL rather lies with insurer Co, than the v insured. Burris Allstate Ins 480 Mich (2008) (WEAVER, J., I dissenting). 1088-1089 also disagree majority’s with the reliance on the definition of adopted “incur” that was in v Farm State Proudfoot Co, 476; (2003), Mut Ins 469 Mich 673 NW2d 739 because, as explained Justice WEAVER her Burris dissent, 's definition of “incur” was limited to Proudfoot case, the facts of that in which the plaintiff sought advance payment Burris, Mich expenses. future (WEAVER, J., at 1088 dissenting). Accordingly, Proud foot, no one had incurred an no expense because service had been and an provided, obligated insurer “is not pay any amount except upon submission of evidence that services were actually rendered. . . .” Manley Exch, Detroit Auto Inter-Ins 140, 159; 425 Mich (1986). however, NW2d 216 In case, plaintiff seeks past expenses resulting benefits for from services that have already been provided. Accordingly, long as the actually services were rendered and reasonably neces sary and the charges reasonable, amount of the defendant, insurer, as the has incurred the charges because of statutory obligation provide its PIP ben 500.3107(1). efits under MCL Unlike majority’s interpretation, Justice approach in Burris is Weaver’s consistent Legislature’s with the intent the no- liberally fault act be construed in favor of the insured. Ass’n, 22, 28; Turner v Auto Club Ins (1995). NW2d 681 addition, I disagree with majority’s effort to

further hamstring insureds’ to PIP ability recover ben- efits to which are they entitled imposing burdensome and statutorily unsupported preferences for specific documentary evidence. See ante at (stating 269-270 way that the of proving” caregiver “best that a expected payment ais “formal bill” or “memorialized state- Opinion by Dissenting Cavanagh, J.

ment”).3 with, determination begin majority’s To are more always persua that certain forms of evidence it on the faulty premised than others is because sive caregiver expect that must majority’s conclusion However, arguendo even that compensation. accepting charge in order for a expected must be 500.3107(1)(a), of MCL noth purposes be incurred for majority’s ing statutory language supports in the forms of gradation persuasiveness of various for a majority’s resulting preference evidence or the Particularly formal bill or memorialized statement. any authority cite telling majority’s is the failure to preference types of this for certain of evidence. support Indeed, majority flatly statutory admits that “no provision requires” majority what the considers to be Ante at Accordingly, although the “best” evidence. statements, bills, contracts, agree I that “itemized or logs listing provided,” the nature of services ante enough would be more than to establish entitlement benefits, PIP or simple testimony any other form of See, admissible evidence should also be sufficient.4 “ MRE generally, (providing [a]ll that relevant evi- states, majority opinion As the formal bill or memorialized state only ment is not the method sufficient to show that an insured is entitled (acknowledging caregiver’s to PIP See ante at 270 that “a benefits. testimony can allow a fact-finder to have conclude been incurred”). Accordingly, despite majority’s unsupported conclusion “best,” documentary any evidence is admissible evidence form of equally prove could be sufficient to meet an insured’s burden to actually services were rendered. majority apparently interprets my asserting dissent as that when care, any provides provide need not member the insured actually provided. n evidence that attendant care was See ante at 269 60. my dissent, however, This is not an accurate characterization of because agree obligated pay any except upon I amount insurer “is not actually submission of evidence that services were rendered . ...” Man stated, ley, Rather, disagree previously I I 425 Mich at 159. with the majority’s unsupported preference specific documentary evidence v Allstate Ins Co Dissenting Opinion by Cavanagh, J. .”) dence (defining is admissible . . and MRE 401 “rel- evant evidence” having any tendency as “evidence make the any existence of fact that is of consequence to probable determination of action more or less evidence”). probable than it be would without the Although majority may be correct certain of evidence types may be more under persuasive specific particular case, circumstances of a by discuss- ing the persuasiveness of various in forms evidence absolutes, majority invades the province of the fact-finder. See People Wolfe, 514; (1992) NW2d 748 (“[A]ppellate juries, courts are not role[.]”). and . . . they must not interfere jury’s with the Indeed, this error in the majority’s approach exposed is in its discussion of the specific facts of case, particularly the majority’s statement failure to provide certain “implicates documents caregiver’s] [the credibility .. . However, .” Ante at 271. contrary to the majority’s willingness to weigh on credibility, witness this Court has frequently stated that appellate courts

must jury remember that the judge is the sole of the facts. It is the jury function of the alone testimony, to listen to weigh the evidence and questions decide the of fact.... Juries, courts, appellate see and hear witnesses and are in a position much weight better to decide the and cred ibility given testimony. [Wolfe, be to their 440 Mich at omitted).] (quotation 514-515 marks and citation In summary, I disagree with the majority’s conclu sion that an insured prove must that a family caregiver expected compensation in order to prove charges 500.3107(1)(a). were incurred for purposes of MCL view, my the insurer charge incurs the by way of its because, my view, any equally admissible evidence could be form of prove sufficient to meet an insured’s burden to that services were actually rendered. 492 MICH

Dissenting Opinion by Cavanagh, J. PIP benefits under statutory obligation provide 500.3107(1)(a) the ser proves insured when the necessary actually rendered reasonably were vices charge reasonable. the amount of the and that Furthermore, majority’s decla accepting arguendo or her prove an insured must that his ration that I disagree with the caregiver expected compensation, that certain forms of evidence majority’s implication always way” be the “best to establish entitlement will the admit that only majority PIP benefits. Not does conclusion, ante statutory support there is no for its see can deter 269-270, appellate at the idea that an court consistently in mine the best evidence a case has been of the fact-finder’s role rejected improper as invasion Mich at Wolfe, “the of the facts.” 514 judge sole omitted; emphasis marks and citation (quotation added).

B. OF EXPECTATION AND FOR PAYMENT REQUEST TIMING majority unsupported pre creates another it that a viously requirement nonexistent when states “at the time the caregiver expect compensation must 269-270; see, also, rendered.” Ante at ante were that the court failed to make a (stating “circuit finding regarding.. Douglas expected . whether Mrs. pro or reimbursement at the time she services”) added). major (emphasis Again, vided the ity identify any timing fails to for this new support in requirement statutory either the caselaw or 500.3107(1)(a). language of MCL The reason for the majority’s simply failure to do so is obvious: there is no support majority’s judicially require for the created particularly given ment. This is notable members against often railed extratextual majority of the have See, Mich requirements. e.g., People Schaefer, v Co v Allstate Ins Dissenting Opinion Cavanagh, J. (2005).5 Indeed, in v People 418, 432; 703 NW2d 774 (1999), 118, 123-124; NW2d 487 460 Mich Wager, previous expressly overruled majority opinion inserted a “reason opinion that had Appeals Court in at issue time” into the statute requirement able engraft the case, sound reason exists to stating “[N]o of the language time’ element onto the clear ‘reasonable why the Accordingly, I am at a loss about statute.” a time engraft believes it is majority appropriate 500.3107(1)(a) the lack despite onto MCL requirement of the any requirement language such the actual statute.6 support statutory the lack of lan-

Although analysis, guage enough reject majority’s is reason majority’s of the burdensome practical implications 5 See, also, Recca, 169, 196-197; 821 NW2d 520 Johnson (2012), stating that organization language it must be assumed that the embody Legislature than statute better the “obviousintent” of by divined does some broad characterization surmised or

judges.... “improve It is not for this Court to “enhance” or to upon” we this can he the work of the lawmakers where believe done, always judges easier for on to reach it will he 7 this Court agreement representatives on the merits of a law than 110 state representing highly disparate and 38 state senators diverse and Therefore, analysis . rest on constituencies. this Court must.. its organization language the of the statute. majority expresses also its belief that an insured should submit time after the evidence “to the insurer within a reasonable amount of added). rendered,” See, also, (emphasis at services were ante at 270 ante (discussing “fail[ing] request the “risk” of to reimbursement for added). ....”) However, timely expenses (emphasis allowable in a fashion 500.3107(1)(a) majority require that a claim the admits “MCL does not any particular for allowable to occur within time.” Ante at 270 Thus, why majority n 64. it is unclear to me the chooses to create by statutorily potential injecting unsupported phrases confusion the timely “within a reasonable amount of time” and “in a fashion” into its 500.3107(1)(a). application of MCL 492 MICH Dissenting Opinion by Cavanagh, J. Specifi- is also worth consideration. requirement

new com- family caregiver expect that a cally, by requiring family only majority punish not does the pensation, care to a loved one nobly provide member who acts to insurer, need, the also rewards the majority a time of the for this act of kindness caregiver, rather than avoid PIP benefits allowing providing the insurer to provide. be This required it would otherwise ethically but it also turns on only troubling, result is not act head the intent that the no-fault be Legislature’s its Turner, liberally in favor of the insured. construed Mich at 28.

Additionally, by caregiver expect the requiring are the compensation provided, at the time reality fails to of situations in majority recognize Specifically, which attendant-care services are needed. for PIP out of automobile-related claims benefits arise accidents, sudden, typically unexpected which were Accordingly, family may unexpectedly events. members immediately provide called care to a loved upon be families, I that in one. Given nature of most believe situations, majority family the vast member care, willing provide initially, would be least any contemporaneous expectation compen- without Thus, I anyone. may fairly sation from believe that it be initially common that the not even aware of caregiver is and the possibility process completed compensa- must be in order to recover that Indeed, attorney tion. citizen every well versed result, in the intricacies of the no-fault act. As a at the provided, caregiver time the services were would no will expectation anyone provide compen- have if a majority’s analysis, sation. Yet under the expect compensation member did not at the time the provided, despite services were the sudden and chaotic situation, he is not entitled circumstances of the or she Allstate Ins Co Dissenting Opinion by Cavanagh, J. retroactively expect compensation for services pro in the past discovering compensation vided after a realistic in possibility. approach This rewards the surer it PIP allowing providing to avoid benefits that it obligated provide would otherwise be under MCL 500.3107(1)(a) merely caregiver because the does not immediately demand compensation.7 A

II. DETERMININGWHATIS “REASONABLECHARGE” 500.3107(1)(a), Under MCL PIP payable benefits are expenses” long for “allowable as the charge is “reas case, court, onable.”8 the trial acting as the majority my regarding The dismisses as unfounded concerns practicalities majority’s requirements, stating “[cjontrary ofthe new suggestion, provide to the dissent’s member’s determination to payment care even in the absence of insurer’s is not inconsistent with expecting compensation insurer, expectation from the but the must present charge meaning nevertheless be afor to be incurred within the 500.3107(1)(a).” However, only Ante at 268 n 56. this statement compensation, timing addresses the source not the of when the caregiver developed expectation payment, regardless of the source. discuss, family caregiver Under the that I circumstances does not expect compensation rendered,” “at the time the services were ante at 269-270, express requirement majority’s which anis erroneous 500.3107(1)(a). interpretation majority of MCL The claims that its requirement expected be at the time the services were provided “simply applies dictionary statutory definitions of the ” phrase ‘charges However, accepting incurred.’ Ante at 268 n 56. even dictionary selects, majority clearly definitions that the there is no component (defining time to those definitions. See ante at 267 “incur” as subject to, “[t]o [especially] become liable or because of one’s own actions,” “charge” “[pecuniary burden, and' price as a “[a] cost” or required goodssupplied”) (quotation or demanded for service rendered or omitted). Indeed, definitions, applying marks and citations these it is person price clear that a could “become liable” for “a demanded for services” the services are rendered. after majority incorrectly states that “the fact-finder must determine charge provision what is a reasonable for an individual’s of services ....” 500.3107(1)(a) Rather, plain language Ante at simply of MCL requires charge Accordingly,although that the be “reasonable.” what an 492 Mich Dissenting by Opinion Cavanagh, J. trial, from two testimony in a heard

fact-finder bench an charged by the rate regarding typically sources Douglas care that Katherine to the agency provide testimony the trial court heard provided. Additionally, company Rosenbaum’s em- that while Dr. Thomas at a rate of Douglas, paid Mrs. she was ployed $10 Furthermore, testimony the trial court heard that hour. atten- provide unable to the hours of Mrs. was because she plaintiffs prescribed dant care that doctor considering the home. After that testi- worked outside PIP benefits at mony, the trial court awarded view, rates are my agency the rate of an hour. $40 rate determining proper compensa- relevant to of benefits, PIP and the trial court in this case tion for agency along considered the rates with the properly I by parties. Accordingly, other evidence submitted clearly that the trial court disagree majority with the case, erred in this and I would affirm the Court of Appeals on this issue.

Although majority agency concludes that rates in determining are both relevant and admissible a 500.3107(1)(a), “reasonable under MCL see charge” n (stating ante at 276 79 that “this case is not about the admissibility agency agency rates” because rates the fact-finder “may helpful point fact be determining charge a reasonable for an comparison services”); of attendant care provision individual’s (stating might ante at 276 that “an rate bear agency rate”), majority some relation to an individual’s exclusively Appeals’ nevertheless relies on the Court of Co, App in Bonkowski v Allstate Ins opinion 154, 165; (2008), expressly 761 NW2d 784 which stated compensation open may on the market be able to obtain as individual relevant, analysis it one factor in a multifactor to determine what is but charge” particular of a case. is a “reasonable under the circumstances Dissenting Opinion DOUGLAS V ALLSTATE Cavanagh, J. INS CO disagree I with “not relevant.” rates are agency reasons. for several Bonkowski reliance on majority’s that its readily admitted with, Bonkowski begin To dic- was compensation the rate of discussion of entire before” “squarely issue tum, stating Moreover, justification, without Id. at Court. found caselaw that admittedly ignored Bonkowski rate of proper determining rates relevant agency care. provision member’s had Appeals the Court (acknowledging Id. ‘comparison the notion embraced “previously method a valid by provides institutions charged rates was expense of an the amount determining whether ser- comparable a value on placing and for reasonable Man- ”), quoting members]’ [by family performed vices Exch, App Mich 127 Auto Inter-Ins ley v Detroit (1983) (alteration original). in 455; 205 339 NW2d of its authority support Further, cited no Bonkowski rate of determining proper the to preferred approach by unli- care for attendant compensation family members. censed rea- however, poorly Bonkowski is importantly,

Most Particularly un- result, and, unpersuasive. a soned hourly paid rate only that is the notion persuasive is by agency an provider to an attendant-care-services majority rejects perspec- this Indeed, even the relevant. agency that (acknowledging n See ante at 276 tive. fact-finder”).9 to the helpful in fact be “may rates Bonkowski’s rely unwise to on majority is Accordingly, however, creating it states majority, confusion when also risks by employed paid Dr. Rosen while amount Mrs. that the charge for her highly probative a reasonable of what constitutes “is baum actually figure received for is the rate she “this services” because could Ante at 277. This statement providing services .. ..” attendant care professional that a misinterpreted courts to conclude and lead lower be Thus, clarify, only I hourly evidence. caregiver’s rate is the relevant Mich 241 Dissenting Opinion Cavanagh, J. Rather, I

analysis adopt reasoning issue. would Judge from in Hardrick majority opinion GLEICHER’s Ass’n, 651; Ins Mich App Auto Club 819 NW2d 28 (2011).

Hardrick, 678-679, 294 Mich that App at first noted whether are question generally reasonable is fact-finder, Nasser, for the question as this Court stated at Second, agreed Hardrick with Bonkowski that rates charged by agency provide “the an attendant- are dispositive rate reasonable chargeable by caregiver,” a relative but the also opinion concluded “this does not detract from the relevance Hardrick, of such evidence.” 294 Mich App at 666. Ac- I find cordingly, persuasive Hardrick’s decision to review through the issue lens of evidence. admissibility of explained Hardrick evidence “relevant” thus “material” when it helps prove proposition that is a “material fact at Id. at issue.” 667-668. Because the fact “material is the issue” reasonable rate for insured, attendant-care services for an and insurers rou- tinely pay agency services, rates for attendant-care Hardrick concluded agency rates relevant are determining the proper caregiv- relative emphasized ers. Hardrick issue “is not whether rate is agency per reasonable se the circum- under stances, but whether of an agency may evidence rate assist a in jury determining a charge reasonable for family-provided attendant-care services.” 669. Id. at Ac- cordingly, because an agency commonly paid rate by “ faint,’ insurers ‘throws some light, however on the services,” reasonableness of a charge attendant-care it Id., citing Cicotte, admissible. Beaubien v (1864). agree majority agency may by with the that rates be the considered determining charge” fact-finder in what constitutes “reasonable under 500.3107(1)(a). Douglas Ins Co v Allstate Dissenting Opinion by Cavanagh, J. that the fact-finder Moreover, explained Hardrick less rate carries agency that an ultimately decide “may contrac charged by independent an than the rate weight charges that different at all. But the fact tor, weight or no hardly marketplace in the exist the same service law.” as a matter of charge irrelevant renders one Indeed, the insurer would Hardrick, App Mich at showing pay the actual introduce evidence be free to providers attendant-care-services by professional received provide by agencies costs incurred and the overhead fact, in evidence. In any other relevant along the care with counter case, permitted plaintiffs was defendant Dr. rate Rosenbaum’s agency paid evidence an showing paid that Mrs. company by $10 defendant’s medical testimony hour and with from both is the critical error expert adjuster. and its claims This that evidence recognize it fails to majority’s reasoning: the the of evidence agency only types rates is one of various may determining consider what fact-finder and the decision of charge,” a “reasonable constitutes be left to the evidence is most relevant should which majority’s I with the Accordingly, disagree fact-finder. weight fact-finder opine regarding decision to types rates relative to other of evidence give agency should a “reasonable determining what constitutes when so, majority again forgets charge.” By doing and ... must not juries, they courts are not “appellate 440 Mich at jury’s Wolfe, role[.]” with the See interfere (1992). Indeed, emphasis on by adopting Bonkowski's rate, majority’s ap hourly caregiver’s individual ex For ignores other relevant considerations. proach abandon a might member be forced to ample, in order great career or move a distance more lucrative a loved one long hours of provide to be able to Additionally, majority’s period. an extended over 492 MICH241 Dissenting Opinion by Cavanagh, J. approach marginalizes the fact that a family member provides who attendant-care may services be left with out an array of benefits that a professional attendant- provider care-services would ordinarily receive. For example, a professional attendant-care-services pro vider who is employed by agency an might receive health benefits, insurance leave, vacation and sick benefits, retirement among other things. None of these represented benefits are in the professional attendant- care-services provider’s hourly wage.10Thus, by singu larly on focusing the rate paid to attendant-care- professional in order to determine what is a charge” “reasonable for family-provided care under 500.3107(1)(a), majority recognize fails to complexity of the inquiry at hand and reduces the determination to a purely economic decision when that not the simply reality of the situation.

Furthermore, by implying that certain evidence is deserving greater consideration when determining a “reasonable charge,” the majority risks making the possibility of family-provided attendant care unattain- able for a large number of no-fault insureds because their family members simply cannot afford to suffer the financial ramifications of that decision. This result not only potentially places families the unenviable posi- tion of being forced to institutionalize a member in order to make a fair living, but it also runs counter to one goals of the no-fault act: to keep no-fault 10 recognize I majority briefly fringe considers the issue of benefits, majority see ante at 272 n relegates but the the issue to a secondary by repeatedly mere emphasizing consideration that “Mrs. Douglas actually providing received $10 an hour in attendant care plaintiff,” See, also, services to ante (stating at 277. ante at 277 that the “highly probative” $10 an hour rate is charge of what is a reasonable 500.3107(l)(a) under MCL Douglas] [Mrs. because it was “the rate services”). actually providing received for attendant care Ins Co v Allstate Opinion by Dissenting Cavanagh, J. General, Attorney See affordable. Shavers insurance (1978). 554, 627-628; Specifi- 267 NW2d 72 Mich provide cannot afford to family if a member cally, majority rate that care at the lower attendant mandates, may the insured be forced essentially opinion increase the institution, potentially will into an which PIP therefore, the amount of and, cost of attendant pay. that insurers must benefits correct this although majority is Finally, issue, this exact previously considered Court has in Hardrick is more approach of Appeals’ the Court Manley, in opinion with this Court’s consistent 154, charge” the “reasonable Mich at which considered 500.3107(1)(a) and held that evidence of of MCL aspect “room and board” is daily charge by a facilities for room and parent’s to determine a costs admissible in the home. parent-caregiver’s board of disabled child See, also, 425 Mich at 169 concur Manley, J., (BOYLE, in dissenting (stating in and that “com ring part part) charged by provides to rates institutions valid parison the amount of an determining method for whether and for a value on expense placing was reasonable member]”) comparable performed [a omitted). Thus, marks (quotation given and citation in guidance Manley, this Court’s on the issue I believe that is more analysis because Hardrick’s Bonkowski’s, I thorough well reasoned than would adopt analysis. Hardrick’s case, I would

Applying approach Hardrick’s affirm the trial court’s conclusion that an hour is a $40 charge.” majority claims that the trial “reasonable record”; however, “unjustified is on this finding court’s variety fails to consider a of factors that were majority Specifically, before the fact-finder in this case. the trial from which it could conclude that testimony court heard 492 MICH241 Dissenting Opinion by Cavanagh, J. Douglas

Mrs. need to job would her outside the quit home provide plaintiff order to with the attendant care his Moreover, doctor prescribed. the trial court heard testi- mony regarding both the agency rate and individual rate for the pay type of care that Douglas Mrs. was provid- ing. Notably, defendant could have submitted additional in support evidence claim rate, its for a hourly lower but it Thus, chose not to do so. majority while the is correct that it “undisputed” that “Mrs. actually re- ceived $10 hour providing attendant care services to plaintiff,” ante at it is also undisputed agencies a higher receive rate of compensation for the same ser- vices, and it is also undisputed that Mrs. Douglas could not provide the attendant care that plaintiff needed while maintaining her employment Thus, outside the home. rate paid to an individual caregiver to encompass fails all the ramifications of Douglas’s Mrs. provision of attendant plaintiff. Accordingly, “[t]he because trier of facts is permitted to draw natural inferences from all the evidence and testimony,” Kostamo v Marquette Co, Iron Mining 105, 405 Mich 120-121; (1979), 274 NW2d 411 I cannot agree with the majority’s conclusion that the trial in court this case “uncritically adopted” agency rates or that agency rates were “the sole basis for the award of benefits in these circumstances.” result, Ante at 276-277. As a I am not “left with the definite and firm conviction that a mistake made,” has been Detroit v Ambassador Bridge Co, (2008) 29, 35; 481 Mich NW2d (quotation omitted), and, marks citation thus, in my view, the trial court did not err clearly on this issue.

III. CONCLUSION I summary, dissent from majority’s effort to extend the interpretation erroneous of MCL 500.3107 from Specifically, I disagree with the majority’s Griffith. V ALLSTATE INS CO DOUGLAS Opinion by Dissenting J. Cavanagh, nec regarding created what is judicially requirements that a was incurred because those essary charge show statutory lan unsupported by are requirements and, thus, contrary Legislature’s to the guage at issue 500.3107(1)(a). Moreover, to MCL regard intent with rely, in on the majority’s part, decision least ill Bonkowski, from 281 Mich is reasoning App reasoned, poorly par because Bonkowski is conceived analysis to the in ticularly comparison persuasive Hardrick, Furthermore, 651. Bonkowski App Mich contrary opinion Manley, to this Court’s I Accordingly, dissent. JJ., Kelly with

Marilyn concurred Hathaway, J. Cavanagh,

Case Details

Case Name: Douglas v. Allstate Insurance Company

Court Name: Michigan Supreme Court

Date Published: Jul 30, 2012

Citation: 821 N.W.2d 472

Docket Number: Docket 143503

Court Abbreviation: Mich.