Michigan Court of Appeals; Docket #356786; Unpublished
Judges Murray, Sawyer, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Allowable Expenses: Incurred Expense Requirement [§3107(1)(a)]
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff 5 Star Comfort Care, LLC’s (5 Star) first-party action against Defendant Geico Indemnity Company (“Geico”). The Court of Appeals held that 5 Star’s patient/Geico’s insured, Shakeim Higgins, did not “incur” the balance between the $10 rate 5 Star paid Higgins’s girlfriend for the attendant care she provided to Higgins, and the $39.99 rate 5 Star billed to Geico for that same care.
Shakeim Higgins was injured in a motor vehicle crash, after which his treating physician prescribed him in-home attendant care. Higgins contacted 5 Star for said care, and 5 Star, in turn, hired Higgins’s girlfriend as an independent contractor to provide it. 5 Star paid Higgins’s girlfriend at a rate of $10 per hour to provide attendant care to Higgins, thereafter obtaining an assignment from Higgins of his right to pursue no-fault PIP benefits related to his care from Geico. 5 Star then filed a claim with Geico for reimbursement for the attendant care Higgins’s girlfriend provided to Higgins, albeit at a rate of $39.99 per hour. Geico only reimbursed 5 Star at the rate of $10 per hour, however, prompting 5 Star to file the underlying first-party action seeking to recover the balance. Geico moved for summary disposition, “arguing that the only expense ‘incurred’ under MCL 500.3107(1)(a) was the $10 per hour charge attributable to Higgins’s girlfriend.” The trial court agreed and granted Geico’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, holding that 5 Star failed to present any evidence that “Higgins incurred, i.e., was liable, to it for a $39.99 per hour charge.” Rather, the assignment, itself, provided only that a charge existed—not that the charge was the amount 5 Star billed to Geico—and “[a] certification that a charge exists is not the equivalent of a contract to be liable for that charge.” Thus, “5 Star left unrebutted Geico’s evidence that only a $10 per hour charge was incurred.”
“Here, 5 Star purports to be able to show that the charge of $39.99 per hour was incurred by Higgins by directing this Court to Higgins’s assignment of rights. The assignment of rights provides:
[Higgins] hereby certifies that [he] has incurred charges for services provided by [5 Star] for which the rights, privileges and remedies for payment are hereby assigned.
5 Start interprets this language as a contractual agreement by Higgins to pay for attendant-care services provided by 5 Star at the rate of $39.99 per hour. Yet, the assignment of rights is not a contract for attendant-care services. Instead, it is a mere certification that Higgins incurred some unspecified charges for some unidentified services provided by 5 Star. Nothing in the language in the assignment requires Higgins to do anything—such as pay 5 Star for attendant-care services at the rate of $39.99 per hour—nor is there language requiring 5 Star to do anything, such as provide attendant-care services. Instead, plainly read, the assignment of rights is a contract between Higgins and 5 Star in which Higgins has assigned his right to PIP benefits to 5 Star in exchange for 5 Star handling the collection of the benefits due to him under the no-fault act. It is not a contract for the provision of services.
As a result, viewing the lower court record in the light most favorable to 5 Star, it is apparent that a contract existed for 5 Star’s provision of attendant-care services to Higgins. However, 5 Star did not present evidence that, under the language of that contract, Higgins incurred, i.e., was liable, to it for a $39.99 per hour charge. Instead, it relied only on the assignment of rights, which, as explained above, does not support a finding that Higgins is liable to 5 Star for the $39.99 per hour attendant-care charge that 5 Star billed to Geico. A certification that a charge exists is not the equivalent of a contract to be liable for that charge. By not presenting such evidence, 5 Star left unrebutted Geico’s evidence that only a $10 per hour charge was incurred. Summary disposition was, therefore, warranted under MCR 2.116(C)(10).”