Nelson v. Detroit Automobile Inter-Insurance Exchange

359 N.W.2d 536, 137 Mich. App. 226
CourtMichigan Court of Appeals
DecidedApril 3, 1984
DocketDocket No. 64236
StatusPublished
Cited by22 cases

This text of 359 N.W.2d 536 (Nelson v. Detroit Automobile Inter-Insurance Exchange) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Detroit Automobile Inter-Insurance Exchange, 359 N.W.2d 536, 137 Mich. App. 226 (Mich. Ct. App. 1984).

Opinions

Per Curiam:.

Defendant appeals as of right from a directed verdict in favor of palintiff for medical expenses incurred as the result of an automobile accident. Defendant also appeals from the trial court’s grant of attorney fees for plaintiff and the court’s denial of attorney fees for defendant. We affirm.

Plaintiff was injured on December 16, 1975, when a car driven by her husband was struck from behind by another vehicle. Plaintiff and her husband were insured with defendant. Following the accident, plaintiff was treated by Dr. Luis C. Posada, an orthopedic specialist, until April of 1977. In 1976, plaintiff underwent an operation for the removal of a ruptured disc. While Dr. Posada [230]*230considered the operation successful, plaintiff continued to complain of dizziness and pain in her neck, back, legs, knees, and fingers. When Dr. Posada informed plaintiff that he could do nothing more to treat her, plaintiff began being treated by another orthopedic surgeon, Dr. W. O. Badgley. Dr. Badgley diagnosed plaintiff’s condition as "postoperative cervical fusion with residual muscle pain related to the automobile accident described in the history”. Plaintiff was treated by Dr. Badgley until January 22, 1980.

Defendant paid all of the expenses incurred by plaintiff for being treated by Dr. Posada. Defendant refused, however, to pay any expenses incurred by plaintiff for her treatment by Dr. Badgley. Plaintiff filed this action for breach of contract, intentional infliction of emotional distress, and breach of a fiduciary duty.

Following a four-day trial, plaintiff moved for a directed verdict on the claim for medical expenses. The trial court granted the motion, awarding medical expenses of $381, and allowed the tort claims to go to the jury, which returned a verdict of no cause of action. Earlier, the trial court had denied defendant’s motion for summary judgment on plaintiff’s tort claims.

Plaintiff’s attorney subsequently filed a motion for attorney fees under MCL 500.3148(1); MSA 24.13148(1). An evidentiary hearing was conducted at which plaintiff introduced a fee statement documenting the hours spent preparing and trying the case as well as the expert testimony of an attorney specializing in automobile negligence and no-fault litigation. The trial court awarded plaintiff attorney fees in the amount of $9,750. Defendant moved for attorney fees on the tort claims but the trial court denied its motion.

[231]*231Defendant now appeals from the directed verdict for medical expenses, the award of attorney fees for plaintiff and the denial of attorney fees for defendant.

I

We first consider the trial court’s directed verdict in favor of plaintiff on her claim for medical expenses.

Under the Michigan no-fault act, an insurer is liable for personal protection insurance benefits including "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation”. MCL 500.3107(a); MSA 24.13107(a). In order for plaintiff in this case to sustain her burden of proving defendant’s liability for medical expenses incurred with Dr. Badgley, plaintiff is required to establish that the expenses were reasonably necessary to her recovery from injuries caused by the automobile accident. We believe that this is generally a question of fact for the jury.

The trial court in this case held, however, that defendant had failed to offer opposing evidence on this issue sufficient to allow reasonable minds to differ. In reviewing the grant or denial of a directed verdict, this Court views the evidence presented at trial in a light most favorable to the nonmoving party and determines whether reasonable persons could differ on the conclusion reached. Armstrong v LeBlanc, 395 Mich 526, 532; 236 NW2d 419 (1975); Perry v Hazel Park Harness Raceway, 123 Mich App 542, 549; 332 NW2d 601 (1983).

At trial in this case, plaintiff presented the deposition testimony of Drs. Posada and Badgley. [232]*232Dr. Posada testified that he terminated plaintiffs treatment because he determined that he was unable to help her further, although, at the time plaintiff was discharged, she was complaining of dizziness and pain for which Dr. Posada had written a prescription for pain medication. Dr. Badgley testified that he believed further treatment of plaintiff was reasonably necessary and prescribed medication and advised plaintiff on vocational rehabilitation.

In opposition, defendant produced the testimony of its claims adjuster, Thomas F. Chartier, who explained that he denied plaintiffs claim for two reasons: (1) the accident had occurred two years earlier and (2) Dr. Posada was a "very well qualified physician” who had terminated treatment. Defendant presented no evidence from Dr. Posada or from any other medical expert witness to establish that Dr. Badgley’s fairly minimal treatment was not reasonably necessary.

We believe that plaintiff sustained her burden of proving the reasonable necessity of her treatment with Dr. Badgley and that defendant simply failed to produce any competent evidence to the contrary. The trial court’s directed verdict is affirmed.

II

Defendant also challenges the trial court’s award of attorney fees to plaintiff. MCL 500.3148(1); MSA 24.13148(1) authorizes an award of attorney fees under the no-fault act where the trial court determines that "the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment”. See also Wood v DAIIE, 413 Mich 573, 587; 321 NW2d 653 (1982). This Court has held that refusal or delay in [233]*233making payment is not unreasonable where there is a legitimate question of factual uncertainty or a legitimate question of law. Aetna Casualty & Surety Co v Starkey, 116 Mich App 640, 647; 323 NW2d 325 (1982), lv den 417 Mich 929 (1983); Liddell v DAIIE, 102 Mich App 636, 650; 302 NW2d 260 (1981), lv den 411 Mich 1079 (1981). A trial court’s finding of unreasonable refusal or delay will not be disturbed unless clearly erroneous. Butler v DAIIE, 121 Mich App 727, 742; 329 NW2d 781 (1982); Liddell, supra.

We cannot say that the trial court clearly erred in awarding plaintiff attorney fees in the instant case. In fact, several factors persuade us that the award is justifiable. When defendant learned that plaintiff was to begin treatment with a second doctor, defendant recommended that plaintiff make an appointment with Dr. Posada for a final diagnosis. Pursuant to the recommendation, plaintiff visited Dr. Posada on April 28, 1978. Dr. Posada’s final report, however, merely summarizes plaintiff’s condition on that date and makes no reference to the reasonableness or unreasonableness of further treatment. Defendant made no further inquiries of Dr. Posada in this regard, despite the obvious purpose for the final visit. Moreover, it is apparent that when plaintiff stopped being treated by Dr. Posada, she was still experiencing some pain as evidenced by Dr. Posada’s prescription for the medication for pain. The fact that two years had elapsed since the accident, two years during which plaintiff received ongoing treatment for her injuries, and the fact that Dr. Posada terminated plaintiff’s treatment do not together create sufficient factual uncertainty to justify defendant’s refusal to pay plaintiff’s medical expenses.

[234]*234III

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Bluebook (online)
359 N.W.2d 536, 137 Mich. App. 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-detroit-automobile-inter-insurance-exchange-michctapp-1984.