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5 Star Comfort Care, LLC v Geico Indemnito Co (COA – UNP 5/19/2022; RB #4411)

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Michigan Court of Appeals; Docket #356786; Unpublished
Judges Murray, Sawyer, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Allowable Expenses: Incurred Expense Requirement [§3107(1)(a)]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff 5 Star Comfort Care, LLC’s (5 Star)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).”


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.

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