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No. 135028
| Hattie Moore and James Moore, |
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Peter M. Bade |
Plaintiffs-Appellees, |
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(Appeal from Ct of Appeals) |
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(Genesee - Brown, T.) |
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| Secura Insurance, |
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| Defendant-Appellant. |
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Megan K. Cavanagh |
| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellees' Brief in Opposition to Application for Leave to Appeal>>
Plaintiffs-Appellees' Supplemental Brief>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Defendant-Appellant's Second Supplemental Brief>>
Defendant-Appellant's Third Supplemental Brief>>
Background
Hattie Moore was driving her automobile on I-475 in Genesee County when she was struck by a hit-and-run driver. As a result of the accident, Moore sustained an acute fracture of her right kneecap. Secura Insurance was Moore’s no-fault insurer. Before the accident, Moore had been seeing an orthopedic surgeon for pain in both knees related to osteoarthritis. Moore was able to work without restrictions as a custodian before the automobile accident. After the accident, Moore was not able to return to work. Secura began paying work loss benefits, as well as other no-fault benefits, to Moore. Several months after the accident, Moore had surgery on her right knee, but she remained off work even after the surgery. Secura continued to pay no-fault benefits until a physician who performed an independent medical evaluation (IME) at Secura’s request concluded that Moore did not need any further treatment for her orthopedic complaints related to the automobile accident. Secura then terminated Moore’s no-fault benefits. Moore sued Secura, seeking first-party no-fault benefits and uninsured motorist benefits. The jury awarded $50,000.00 in noneconomic losses in relation to Moore’s uninsured motorist claim. The jury also awarded Moore $42,775.00 in work loss benefits and $98.71 in penalty interest (pursuant to a statute that allows interest to be awarded for payments not made within 30 days after the insurance company has received reasonable proof of the fact and the amount of the claim). Moore then filed a post-judgment motion for no-fault attorney fees and costs under MCL 500.3148(1). That statute states: “An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.” The motion was granted, and Moore was awarded $79,415.00 in no-fault attorney fees and costs. Secura appealed. The Court of Appeals affirmed the trial court’s award of no-fault attorney fees and costs in a split published opinion. The majority acknowledged Secura’s argument that the jury’s award of $98.71 in penalty interest was suggestive of a finding that Secura unreasonably delayed payment of only one week of benefits. Nevertheless, the majority declined “the invitations to speculate regarding why the jury so found, or to conclude that this is such a de minimis amount so as to be tantamount to a finding that no payments were overdue.” According to the majority, the jury found at least some of the benefit payments were overdue and the majority refused to “second-guess” that finding. The dissenting judge disagreed with this analysis, and concluded that Moore failed to satisfy MCL 500.3148(1)’s requirement that the benefits be overdue. Secura appeals.
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