August 16, 2016
In Bulmann v Auto-Owners, No 326788, unpublished opinion (June 16, 2016), the Michigan Court of Appeals affirmed a trial court’s factual findings of fraud and application of MCL 500.3148(2) to impose attorney fees because the claimant submitted claims for attendant care and replacement services that were both “so excessive as to have no reasonable foundation” and “in some respect fraudulent” as Plaintiff either knowingly or recklessly submitted claims for attendant care benefits.
During a jury trial, the plaintiff claimed that a friend provided 12 hours of attendant care and replacement services. The friend, however, testified that she did not provide 12 hours’ worth of services for many of the days which replacement services and attendant care costs were claimed. These days included three days in January when they were traveling, a significant period between March and May of 2013 when the friend was taking care of her ill sister, not the claimant, four days when the plaintiff was away deer hunting, and then over a month period after the friend underwent back surgery, at which time the Plaintiff actually assisted his friend. There were also several days where the friend admitted that she did not see the plaintiff during the time period claimed for attendant care and replacement services but testified that there was telephone communication.
At trial, video surveillance was introduced showing plaintiff driving a tractor and operating a motor vehicle which contradicted Plaintiff’s claim that his injury had rendered him unable to drive.
Plaintiff’s claim was submitted to the jury which ultimately determined that although the Plaintiff was injured it did not arise out of the ownership, operation, maintenance or use of a motor vehicle and, thus, a judgment of no cause of action was entered. Following entry of the judgment, Defendant moved for an award of attorney feeds in its favor pursuant to MCL 500.3148(2) which provides in relevant party that: “an insurer may be allowed by a court an award of a reasonable sum against a claimant as an attorney’s fee for the insurer’s attorney in defense against a claim that was in some respect fraudulent or so excessive as to have no reasonable foundation.”
The trial court ultimately concluded that the Defendant was entitled to attorney fees because Plaintiff’s claim for attendant care and replacement services was in some respect fraudulent given the video surveillance and testimony of the friend that she did not provide services on several of the claimed days.
The Court of Appeals affirmed the trial court’s decision to impose attorney fees because the claimant submitted claims for attendant care and replacement services that were both “so excessive as to have no reasonable foundation” and “in some respect fraudulent” as Plaintiff either knowingly or recklessly submitted claims for attendant care and replacement services on days when the care provider admitted that she did not provide such care and services.
[1] Defendant in this case was represented by Garan Lucow Miller, P.C. attorney Caryn Ford on appeal.
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