Volume XXIII, No. 29, October 28, 2011
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
James L. Borin & Simeon R. Orlowski
EXPENSES INCURRED BY A CONSERVATOR IN HANDLING A PROTECTED PERSON’S PURELY ECONOMIC AFFAIRS QUALIFIES AS
3107(1)(a) “ALLOWABLE EXPENSES”
CONTRIBUTOR – TARALYNN T. VELTING
Pursuant to May v ACIA, ___ Mich App___ (No. 292649, released April 26, 2011), conservatorship fees incurred in managing business and legal affairs are allowable expenses because the conservatorship was necessary to care for the person as a result of injuries she suffered in a motor vehicle accident. Now, according to a newly issued unpublished opinion, this entitlement to PIP benefits even extends to the conservator’s legal fees. Cisneros v Fullmer, (No. 298922, released Sept. 27, 2011).
Ms. Cisneros suffered injuries in a motor vehicle accident. The St. Clair Probate Court entered an Order Appointing Conservator on her behalf. At some point, Mark A. Fullmer was appointed Successor Conservator. The Probate Court granted Mr. Fullmer fees in the amount of $11,274.00 representing work on behalf of Cisneros to recover no fault insurance benefits, as well as defending Ms. Cisneros in real estate and debt disputes. The Probate Court found that Mr. Fullmer’s fees were allowable expenses under MCL §500.3107(1)(a). The Court of Appeals affirmed.
The Court of Appeals began by first looking at the statute, which provides allowable expenses for a person’s “care, recovery or rehabilitation,” followed by a brief review of Griffith v State Farm, 472 Mich 521 (2005). The Griffith Court specifically focused on a claim for food and disallowed it. The Court of Appeals found specific language in Griffith important to the definition of “care, recovery, or rehabilitation”:
It is important to note that the statute does not require compensation for any item that is reasonably necessary to a person’s care in general. Instead, the statute specifically limits compensation to charges for products or services that are reasonably necessary “for an injured person’s care, recovery, or rehabilitation.” (Emphasis added.) This context suggests that the “care” must be related to the insured’s injuries. 472 Mich 521, 534.
The Petitioner/Conservator relied on Heinz v ACIA, 214 Mich App 195 (1995). In that case, the Court of Appeals rejected the idea that allowable expenses were limited to medical expenses. Heinz was further distinguished by In Re: Estate of Shields, 254 Mich App 367(2002). In that case, the claimant was an infant child. The Court concluded that the conservatorship did not “arise out of” the motor vehicle accident, but rather, out of the claimant’s status as a minor. In that case, the conservatorship was requested pursuant to a petition to settle the case and not for ongoing management of economic affairs.
The Griffith case followed both Heinz and Shields in time, and Respondent ACIA argued that Griffith acted to restrain Heinz. In a case decided earlier this year, May v ACIA, the Court of Appeals looked to both the Griffith and Heinz cases. In May, the Probate Court found that the conservator’s fees were not allowable expenses. The Court of Appeals reversed and found that when a motor vehicle accident victim is so injured as to require the appointment of a conservator to manage his affairs, all of the conservator’s fees are covered under no fault insurance PIP coverage, regardless of the nature of the particular service. In May, the Court of Appeals found that there was no basis for distinguishing the “care” provided by a guardian from the care provided by a conservator. In Cisneros, an unpublished opinion, the Court of Appeals specifically referenced the May case, and held that:
Because a conservatorship was necessary to care for Cisneros as a result of bodily injuries she suffered in an automobile accident and because the reasonable expenses incurred by petitioner in managing Cisneros business and legal affairs would not have been necessary but for the accident, those expenses were “allowable expenses” under MCL §500.3107(1)(a).
This Court specifically rejected the argument by ACIA that these costs were actually replacement costs under MCL §500.3107(1)(c). If these costs were replacement costs, the expenses could not exceed $20.00 per day, and would expire three years from the date of the motor vehicle accident. Replacement costs are those costs incurred in obtaining ordinary and necessary services that the injured person would have performed for himself had he not been injured.
ACIA currently is seeking Supreme Court review in May and is considering whether to do so in Cisneros. Both cases are being handled on appeal for ACIA by Daniel S. Saylor of Garan Lucow Miller, P.C.
WINDY CITY SEMINAR
NOVEMBER 10, 2011
CHICAGO MARRIOTT SUITES O’HARE
6155 North River Rd. | Rosemont | Illinois 60018
REGISTER NOW: firstname.lastname@example.org
8:30 – 8:55 A.M. CONTINENTAL BREAKFAST / REGISTRATION
8:55 – 9:00 A.M. WELCOME AND INTRODUCTION
Speaker: DAVID A. COUCH
9:00 – 10:00 A.M. MICHIGAN FIRST PARTY NO-FAULT (PIP) UPDATES
Speaker: JUDITH A. MOSKUS
10:00 – 10:20 A.M. UPDATE ON USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL
Speaker: DAVID A. COUCH
10:20 – 10:30 A.M. BREAK
10:30 – 11:30 A.M. TIPS & TRICKS OF LITIGATING/TRYING CATASTROPHIC CASES
Speaker: JOHN J. GILLOOLY
11:30 – 12:00 P.M. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES
Speaker: DAVID A. COUCH
12:00 – 12:30 P.M. PANEL DISCUSSION ON DEPOSITION STRATEGIES & TIPS FOR TESTIFYING EFFECTIVELY
Moderator: DAVID A. COUCH
12:30 – 1:00 P.M. QUESTION AND ANSWER SESSION
Return Evaluation Forms
Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.
NEW DATE FOR TROY BREAKFAST SEMINAR
Based on the pending No-Fault legislation which may or may not have been enacted by late October, Garan Lucow Miller, is re-scheduling the Troy Breakfast Seminar for April 19, 2012.
PROLIFIC TRIAL ATTORNEY – INDIANA
David A. Wilson, of our Merrillville, Indiana office, has been listed by the Indiana Jury Verdict Reporter as one of the most prolific trial attorneys in the State of Indiana.
All attorneys honored with this distinction appear in the IJVR 2010 Year In Review publication.
SUPER LAWYERS AND RISING STARS – 2011
The following attorneys were selected for inclusion in the 2011 Michigan Super Lawyers and Rising Stars lists:
James Borin, William Brickley, Boyd Chapin, John Gillooly, John McSorley, Rosalind Rochkind, Daniel Saylor, Roger Smith
and Rising Stars: Stacey King, Mark Nawrocki and Shawn Ohl.
BEST LAWYERS – 2012
The following attorneys have been selected by Best Lawyers Publication as Best Lawyers for 2012:
James Borin, David Campos, Boyd Chapin, Thomas Misuraca, Dennis Partridge, Daniel Saylor, Roger Smith, Michael Wade and Peter Worden.
LAWYER OF THE YEAR – 2012
Rosalind Rochkind has been named the Best Lawyers’ 2012 Detroit Insurance Law Lawyer of the Year.
CONGRATULATIONS TO ALL OUR AWARD WINNING ATTORNEYS!
GARAN LUCOW MILLER WELCOMES NEW ASSOCIATES
Congratulations to Ruth A. Lyons, former law clerk in our Detroit office, just passed the bar exam and is now officially one of the Firm’s newest attorneys.
Also joining the Firm in the Troy office are the following associates: Mark L. Nawrocki, Emily S. Ross, Christopher A. Lawicki and Shawn K. Ohl.
The Grand Blanc office is also pleased to announce the addition of Chanel R. Shamoun, as their newest associate.
A very special welcome to all!