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April 02, 2021
Pepaj v Allstate, unpublished per curiam opinion of the Court of Appeals, issued March 18, 2021 (Docket No. 352498), addressed a re-filed no-fault benefits claim arising out of a 2014 motor vehicle collision. The original matter between Plaintiff and Allstate settled in 2016 and the settlement included all expenses incurred up to December 8, 2016, as well as future replacement services. Plaintiff again filed suit against Allstate seeking payment for medical bills and attendant care expenses incurred after December 8, 2016. The only proof Plaintiff offered in support of his claim that the bills and attendant care were reasonably necessary came by way of pre-settlement medical records, post-settlement medical bills, and his deposition testimony. Plaintiff argued that together, these items created a genuine issue of material fact because they revealed that he had sustained injuries in the accident, had continued experiencing symptoms from those injuries, and had bills showing additional medical expenses incurred post-settlement. The trial court granted summary disposition in favor of Allstate finding that Plaintiff did not establish that his claimed incurred expenses were reasonably necessary.
The Court of Appeals referred to Nasser v ACIA, 435 Mich 33, 457 NW2d 637 (1990), to illustrate that both the reasonableness and necessity of the expenses Plaintiff was claiming were required elements for Plaintiff’s claims to succeed and consequently, failing to show either would defeat his claims. The Court adopted much of the trial court’s reasoning in support of its dismissal of Plaintiff’s claims, which relied heavily upon Krohn v Home-Owners Ins Co, 490 Mich 145; 802 NW2d 281 (2011). In Krohn, the Supreme Court addressed the “reasonable and necessary” requirement, considering whether reasonableness should be determined from a subjective or objective basis. The Krohn Court held that it was the latter.
Applying Krohn’s reasoning and conclusions to Pepaj’s case, the Court of Appeals found that Plaintiff’s only proofs were in the form of vague deposition testimony providing the names of five physicians he had seen but no details as to when he saw them or what they did for him. The Court found Plaintiff’s pre-settlement medical records only detailed injuries and treatment before December 8, 2016, and his post-settlement billing did not provide any evidence that the associated services and expenses were reasonably necessary. Instead, the bills only showed that Plaintiff obtained services and incurred costs, but those services might have been only for Plaintiff’s subjective complaints of pain and may not have been related to the motor vehicle accident. As the trial court found, even if Plaintiff believed the services were reasonably necessary for his care, he provided no specific contemporaneous evidence relating the post-settlement services to the motor vehicle accident. The Court found Plaintiff needed to provide evidence of externally verifiable phenomena associated with an objective viewpoint, or, an objective finding by a physician that Plaintiff’s complaints were due to the collision and that the treatment was reasonable in light of those complaints.
The Court extended this logic to Plaintiff’s claims for attendant care noting Plaintiff failed to provide any evidence that his physicians objectively determined he needed these services. Pepaj relied on pre-settlement medical records, post-settlement billing, and his own testimony that his physician told him he needed the services but “Pepaj failed to submit externally verifiable objective evidence that attendant care services were reasonably necessary”, and without that, the Court was only left with Pepaj’s subjective belief and inadmissible hearsay testimony that he needed the services.
The Court concluded that the trial court erred in weighing evidence, resolving conflicts in that evidence, and assessing the credibility of Plaintiff. The Court held, however: “
[W]e agree with the court’s general rejection of the claim for attendant care expenses because Pepaj failed to submit externally verifiable objective evidence that attendant care services were reasonably necessary. His reliance on his own subjective perception or belief that he needed attendant care services did not suffice to create a genuine issue of material fact. And, for the reasons discussed earlier in connection with medical and psychological services, the billing statements simply do not provide any basis to find that attendant care services and expenses were reasonably necessary.”