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No. 130917
| Randall L. Ross, |
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Jules B. Olsman |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Macomb - Miller, D.) |
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| Auto Club Group, |
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John A. Lydick |
| Defendant-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Defendant-Appellant's Reply Brief>>
Coalition Protecting Auto No-Fault's Amicus Curiae Brief>>
Farm Bureau Mutual Insurance Company of Michigan's Amicus Curiae Brief>>
Michigan Health & Hospital Association's Amicus Curiae Brief>>
Background
After he was injured in an automobile accident, Randall Ross submitted a claim to Auto Club Group for first-party no-fault personal protection insurance benefits. At that time, Ross was the sole shareholder and employee of Michigan Packing Company, Inc., a meat packing business incorporated as a subchapter S corporation. The parties could not agree whether Ross was a company employee or was self-employed. Ross argued that he was an employee, but Auto Club took the position that Ross was self-employed and that, under Adams v Auto Club Ins Ass’n, 154 Mich App 186 (1986), he could not establish a claim for lost wages. In Adams, the Court of Appeals ruled that the self-employed plaintiff was entitled to work loss benefits based on his taxable income, rather than gross receipts. But in Ross’ case, the trial court said, Adams did not apply because Ross was seeking benefits based on actual W-2 wages. While agreeing with Auto Club that Ross was self-employed, the trial court found that Ross had established a claim for lost wages. Accordingly, the trial court granted Ross’ request for attorney fees under MCL 500.3148(1), which states that “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” (emphasis added). Explaining the award of attorney fees, the trial court stated that Auto Club “provided no legitimate justification, no legal authority, no rational or logical arguments” in support of its claim that Ross was not entitled to benefits. Auto Club appealed. On the question of attorney fees, the Court of Appeals affirmed the trial court; in a published opinion, the appellate court that it was not left with a definite and firm conviction that the trial court made a mistake in ordering Auto Club to pay attorney fees to Ross. Auto Club appeals.
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