Injured? Contact Sinas Dramis for a free consultation.

   

Collins v Nizzi, et al (COA – UNP 1/13/2022; RB #4380)   

Print

Michigan Court of Appeals; Docket #354510, 354871; Unpublished  
Judges Sawyer, Servitto, and Rick; Per Curiam 
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING: 
Requirement that Benefits Were Unreasonably Delayed or Denied [§3148(1)]

TOPICAL INDEXING: 
Evidentiary Issues


SUMMARY: 
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the jury’s verdict in Plaintiff Timmie Dewight Collins, Jr.’s first-party action against Defendant Auto-Owners Insurance Company (“Auto-Owners”) and affirmed the trial court’s denial of Collins’s motion for no-fault attorney fees, but vacated the trial court’s denial of Collins’s motion for court costs.  The Court of Appeals held (1) that Collins was not entitled to no-fault attorney fees because Auto-Owners’ initial denial of the select claims for medical mileage Collins prevailed on at trial was not unreasonable; (2) that the jury’s determination that Collins was not entitled to additional replacement services and work loss benefits was not against the great weight of the evidence; and (3) that the trial court erred in ruling that Collins was not the prevailing party at trial—even though the jury awarded him only $366.67 out of the approximately $79,000 in PIP benefits he was claiming—and denying his motion for court costs based on that ruling.

Timmie Dewight Collins, Jr. was injured in a motor vehicle collision on May 17, 2018.  He sought no-fault PIP benefits for the treatment he received for his injuries from his no-fault insurer, Auto-Owners.  Auto-Owners initially paid his benefits, but eventually stopped, arguing that Collins’s collision-related injuries had resolved and that he was no longer disabled as a result of the collision.  Collins thus filed the underlying first-party action against Auto-Owners, seeking approximately $79,000 in unpaid allowable expenses, work loss benefits, and replacement services benefits.  The case proceeded to trial, where conflicting evidence was presented regarding Collins’s ongoing need for medical treatment, inability to work, and need for replacement services as a result of the collision.  Ultimately, the jury awarded Collins only $366.67 worth of medical mileage.  Collins filed a motion for attorney fees and court costs, both of which the trial court denied.

The Court of Appeals affirmed the trial court’s denial of Collins’s motion for attorney fees, rejecting Collins’s contention that “the jury finding that the mileage benefit was overdue necessarily meant that the initial refusal to pay was unreasonable.”  The Court characterized Auto-Owners’ failure to pay the select medical mileage claims the jury determined were related to the collision as “an oversight that was not significant.”  The Court noted that Collins submitted approximately one years’ worth of mileage claims all at once, after Auto-Owners placed his claim under investigation, with claims for dates of service both before and after the claim was placed under investigation. Moreover, the Court noted that the jury determined that only 668 miles out of the 2,324 miles Collins claimed were related to the collision.  Therefore, under the circumstances, the Court held that Auto-Owners was not unreasonable in failing to parse out which of Collins’s claims for medical mileage were collision-related, and which were not.

“At trial, conflicting evidence was presented about the continued severity of plaintiff’s injuries and recommended courses of treatment. Several physicians indicated that some of plaintiff’s ailments were degenerative in nature, that plaintiff’s injuries were not that severe, that they consisted only of ‘soft tissue’ injuries, and that they should have resolved within six months after the accident. Service explained that her decision to discontinue benefits was made on the basis of her review of the claim as a whole. Service acknowledged that some of the requested reimbursement was for services that occurred as early as August 2018, and that plaintiff was entitled to reimbursement for mileage for the earlier visits. When asked why this had not been reimbursed, Service stated that the request for payment was submitted with other documents that had not been previously submitted. This supports the trial court’s finding that it may have been an oversight for Service to include the small amount sought for mileage among plaintiff’s other payment requests and not treat this claim for benefits separately. Such an approach is reasonable here, where plaintiff requested approximately a years’ worth of mileage at once, particularly where the reimbursement form requests the insured to submit mileage requests monthly. In addition, plaintiff was awarded reimbursement for 668 miles, but his reimbursement form requested compensation for 2,324 miles. Thus, the jury awarded plaintiff less than a third of the mileage he requested. This award also supports the trial court’s finding that Auto-Owners’ initial decision not to reimburse plaintiff for the 668 miles the jury ultimately found reimbursable was not unreasonable. Plaintiff does not explain how Auto-Owners would have been able to calculate the amount of mileage actually reimbursable among the amounts that the jury ultimately decided were not. Accordingly, the trial court did not clearly err when it determined that Auto-Owners’ initial refusal to pay for the mileage ultimately awarded by the jury was reasonable under the circumstances. Plaintiff has not shown that he is entitled to no-fault attorney fees even though the jury found that payment for some mileage was overdue.” 

The Court of Appeals also rejected Collins’s argument that the jury’s verdicts regarding his claims for work loss benefits and replacement services were against the great weight of the evidence. The Court noted that there was considerable evidence that undermined Collins’s claim that he was unable to work and in need of replacement services during the period in question as a result of his collision-related injuries.  His wife testified that Collins told one of his doctors that he could perform household chores during the period in question, Collins’s credit card statements belied his testimony that he spent approximately 12 hours per day in bed and could not perform any type of physical activity, and multiple of Collins’s doctors testified that his clinical presentation, given his injuries, was atypical and that most people would have healed from said injuries by the time Auto-Owners suspended payment of Collins’s PIP benefits. 

“At trial, plaintiff sought approximately $11,900 for PIP replacement services. Plaintiff essentially maintains that he proved that he was entitled to this amount by presenting the testimony of himself and his wife, and providing a calendar listing of the services in question. However, plaintiff ignores testimony and other evidence that undermined his claim for replacement-service expenses. Although plaintiff reported his neck pain at a 7 out of 50 at the end of his first round of physical therapy, and reported that he continued to have difficulty performing chores, he was presented with his June 4, 2019 responses to Dr. Marin Bleiberg, M.D., in which he indicated that he was able to perform those chores. Plaintiff also acknowledged that his physical therapy discharge summary of September 6, 2018, reported that he told his physical therapist that he had used a power washer to wash his deck the day before. Plaintiff also acknowledged that the therapy discharge paperwork recorded that he reported having a pain level of only ‘1,’ or very mild, and that he could perform most of his work, but that lifting heavy weights continued to cause him ‘extra’ pain. Plaintiff’s wife also acknowledged that plaintiff told Dr. Bleiberg that he could perform household chores. She maintained that plaintiff could only do so with pain ‘at times,’ but she also conceded that Dr. Bleiberg’s records indicated that plaintiff had reported pain when bending and twisting, but not while performing housework tasks. On cross-examination, plaintiff acknowledged that he told Dr. James R. MacKenzie, M.D., on March 4, 2019, that he spent approximately 12 hours a day in bed and could not perform any type of physical activity. But plaintiff’s credit card statements for the applicable time period showed 43 visits to the hardware store. Dr. MacKenzie also testified that he would expect the vast majority of individuals suffering injuries similar to plaintiff’s to be significantly better after six months, and that it would be ‘somewhat atypical’ for the injuries to persist for two years.  

In sum, there was substantial evidence from which the jury could have found that plaintiff and his wife were overstating the need for replacement services. Plaintiff has not shown that there was no competent evidence to support the jury’s verdict, or that the verdict was logically or legally inconsistent. Accordingly, plaintiff is not entitled to relief with respect to the jury’s verdict refusing to award additional PIP benefits for replacement services. Allard, 271 Mich App at 406-407. 

. . .

In the instant case, the jury’s decision not to award plaintiff additional work-loss benefits is supported by competent evidence. As noted, the parties presented opposing testimony about the continued severity of plaintiff’s injuries and recommended courses of treatment. Several physicians agreed that some of plaintiff’s ailments were degenerative in nature, that plaintiff’s injuries were not that severe, that they consisted only of ‘soft tissue’ injuries, and that they should have resolved within six months of the accident. Dr. MacKenzie testified that he would expect the vast majority of persons with injuries similar to plaintiff’s to be significantly better after six months, and that it would be ‘somewhat atypical’ for the injuries to persist for two years. Dr. Sohail Jilani, M.D., similarly testified that the typical period of time for resolution of a sprain or strain injury is a couple of weeks to a couple of months. Amanda Service also stated that she had not had any insureds with a soft-tissue neck injury who remained unable to work, or who continued to require treatment, after two years. Plaintiff’s primary care physician, Dr. Andrew Long, D.O., similarly testified that when plaintiff came to see him on March 12, 2019, he recommended a work-hardening program and provided a referral to a program. Dr. Jilani and Dr. MacKenzie also recommended that plaintiff enroll in a work-hardening program. Plaintiff did not enroll in such a program. Considering this body of evidence, plaintiff has not shown that there was no competent evidence to support the jury’s verdict, or that the verdict was logically or legally inconsistent. Accordingly, plaintiff is not entitled to relief with respect to the jury’s verdict refusing to award additional PIP wage-loss benefits. Allard, 271 Mich App at 406-407. 

The Court of Appeals vacated, however, the trial court’s denial of Collins’s motion for court costs.  Specifically, the Court of Appeals held that the trial court erred in determining that, because Collins prevailed on only a very small portion of his overall claim for PIP benefits, he was not the “prevailing party” for purposes of MCL 600.2421b(3)(b) and MCR 2.625(B)(2).  Collins was the prevailing party because his position was improved—although “not nearly as [much] as he had hoped”—as a result of trial.  Thus, the Court of Appeals remanded the case back to the trial court to determine, in its discretion, whether to award Collins court costs as the prevailing party.

“Under the applicable provisions, plaintiff was the prevailing party. A party need not recover the full amount of requested damages to be a prevailing party entitled to costs under MCR 2.625. Rather the party must only show that its position was improved by the litigation. Pontiac Country Club v Waterford Twp, 299 Mich App 427, 437; 830 NW2d 785 (2013); Forest, 228 Mich App at 81. The fact that plaintiff did not recover the full amount sought is not dispositive of whether he was the prevailing party under MCL 600.2421b(3)(b) or MCR 2.625. In addition, the plain language of MCR 2.625(C) clearly contemplates that a person can recover even less than $100 and still be a prevailing party, albeit with limited entitlement to costs. Indeed, at the hearing on plaintiff’s motion for costs, defense counsel admitted that caselaw did not support Auto-Owner’s position. Plaintiff improved his position, even if only slightly and not nearly as he had hoped. Therefore, the trial court erred by ruling that plaintiff was not the prevailing party. 

 However, contrary to plaintiff’s position on appeal, he is not automatically entitled to costs simply because he is a prevailing party. An award of costs remains within the trial court’s discretion. Under plaintiff’s argument, a contract recovery of $101 would necessarily entitle the party to recover all costs. However, this is not supported by the plain language of MCR 2.625. The trial court’s explanation, while erroneous in its conclusion, presented a rationale that the court could conceivably have used to exercise its discretion to deny an award of costs. But because the trial court believed that plaintiff was not a prevailing party as a matter of law, and thus did not exercise its discretion whether to award or deny costs, we remand this case to the trial court to determine, within its discretion, whether plaintiff’s motion for costs should be denied even though he is the prevailing party under MCR 2.625.” 


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

Copyright © 2022 Sinas Dramis Law Firm, George Sinas, Stephen Sinas.
All Rights Reserved.
Login (Publishers Only)

FacebookTwitterInstagram