Rajmonda Prendushi v. Farmers Insurance Exchange ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
ROLAND PRENDUSHI and JANIS UNPUBLISHED
PRENDUSHI, Co-Guardians of RAJMONDA September 15, 2015
PRENDUSHI,
Plaintiffs-Appellees,
v No. 321348
Oakland Circuit Court
FARMERS INSURANCE EXCHANGE, LC No. 2013-134648-NF
Defendant-Appellant.
ROLAND PRENDUSHI and JANIS
PRENDUSHI, Co-Guardians of RAJMONDA
PRENDUSHI,
Plaintiffs-Appellees,
v No. 321511
Oakland Circuit Court
FARMERS INSURANCE EXCHANGE, LC No. 2013-134648-NF
Defendant-Appellant.
Before: MURRAY, P.J., and METER and OWENS, JJ.
PER CURIAM.
In this consolidated, first party no-fault insurance case, we granted defendant Farmers
Insurance Exchange (“Farmers”) leave to appeal three orders. First, in Docket No. 321348,
Farmers appeals the trial court’s order denying its motion in limine to exclude testimony
concerning the reasonableness of certain attendant care expenses incurred by the injured
claimant, Rajmonda Prendushi (Mrs. Prendushi). Second, in that same case, Farmers challenges
the trial court’s order denying its motion for summary disposition of plaintiffs’ claims seeking
certain accommodation and attendant care expenses. Finally, in the companion case, Docket No.
321511, Farmers appeals the trial court’s order requiring production of Farmers’ entire litigation
file.
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For the reasons set forth below, in Docket No. 321348, we affirm the trial court’s order
denying Farmers’ motion in limine, but vacate the trial court’s summary disposition ruling that
plaintiffs’ rent is an “allowable expense.” In all other respects, we affirm the trial court’s order
denying summary disposition. In Docket No. 321511, we reverse the trial court’s order requiring
Farmers to produce its entire litigation file since that ruling is premature. We remand (1) for the
parties to resubmit to the trial court the issue of plaintiffs’ claim for rental costs and (2) for the
trial court to determine the scope of the work-product doctrine’s protection of Farmers’ litigation
file.
I. BACKGROUND
The nearly decade-and-a-half of litigation between these parties spans back to 1999,
when Mrs. Prendushi was involved in a serious auto accident. She sustained traumatic brain and
spinal cord injuries resulting in incomplete quadriplegia, among other problems. The injuries are
permanent and require 24-hour care. Upon leaving the nursing facility in 2001, Mrs. Prendushi
moved into an apartment and began receiving attendant care from her husband and daughter—
respectively, plaintiffs Roland (Mr. Prendushi) and Janis Prendushi. Mrs. Prendushi’s sister,
Linda Ziu, also assists with this care. The parties intended the apartment to be a temporary
living arrangement until plaintiffs could secure more “suitable” housing; however, since Mrs.
Prendushi moved to the apartment several disputes have arisen regarding not only her housing
situation, but also her attendant care costs. In fact, the current case is the fourth lawsuit between
these parties regarding personal protection insurance (PIP) benefits, the most recent having been
resolved in April 2012 when the parties accepted a case evaluation award of $630,000 to be used
for barrier-free housing, handicap-modified transportation, and attendant care costs.1
Around the time case evaluation concluded, Mrs. Prendushi was prescribed an additional
six hours of daily attendant care for pain management. This brought her attendant care regimen
to 30 hours a day. Although plaintiffs sought total reimbursement from Farmers for this
expense, over the ensuing year, the parties disputed whether plaintiffs had provided Farmers with
the proper documentation and records. Plaintiffs claimed Farmers had refused to pay the amount
due despite receiving the prescription and a doctor’s letter; Farmers claimed plaintiffs had
neglected to provide the personal and tax information of the person providing the additional six
hours of care. Finally, on June 20, 2013, Farmers agreed to pay all additional hours of attendant
care retroactive to April 2012, but at the lower rate of $12 an hour rather than the $18 an hour
Farmers was paying for the 24-hour care provided by Mrs. Prendushi’s family. Farmers claimed
the disparity in payment derived from the different skill levels needed to render the different
types of care. Farmers remitted all payment to Mr. Prendushi, who in turn, was responsible for
compensating the other caregivers and paying any taxes.
Concurrent with that controversy, plaintiffs continued searching for a “suitable” housing
arrangement for Mrs. Prendushi. This was part of the ongoing search that had begun shortly
after the accident since, according to plaintiffs, Farmers had previously rejected Mr. Prendushi’s
1
For the first three lawsuits, see Oakland Circuit Court Case Nos. 01-032543-CK, 07-083748-
NF, and 11-119514-NF.
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offer to modify the house his family had lived in before the accident and had refused to pay for
the house he had subsequently purchased in Bloomfield Hills. Despite this, Farmers continued
paying Mrs. Prendushi’s rent after case evaluation through May 2013—a full six months beyond
the deadline Farmers had originally imposed. Farmers ceased paying rent at that time ostensibly
because plaintiffs’ housing updates were inadequate. However, on June 20, 2013, plaintiffs
informed Farmers that they had purchased a house in Sylvan Lake and that Mrs. Prendushi had
received an eviction notice from her apartment for nonpayment of rent.2 By July 5, 2013,
Farmers had resumed Mrs. Prendushi’s rental payments.
II. PROCEEDINGS
In the meantime, on June 21, 2013, plaintiffs filed their complaint. Primarily seeking
reimbursement for attendant care and housing expenses, plaintiffs alleged that Farmers had (1)
failed to pay (or delayed in paying) for the additional six hours of daily care, (2) “underpaid” Mr.
Prendushi for the round the clock care he provides, and (3) failed to reimburse plaintiffs for
housing and rental expenses. Farmers initially filed a motion for summary disposition under
MCR 2.116(C)(10), arguing that PIP benefits were not recoverable as a matter of law and that no
benefits were otherwise overdue. However, this motion was withdrawn in light of ongoing
discovery and the parties’ settlement negotiations.
Over five months later the parties remained at an impasse, so Farmers refiled its
dispositive motion. In addition to its prior arguments, Farmers noted that: rent was not a
reasonable expense where plaintiffs’ apartment was not modified; plaintiffs lacked proof of
additional attendant care expenses and the need for Farmers to keep paying their rent; and
Farmers had fairly compensated plaintiffs for providing attendant care.
Plaintiffs responded that Farmers had admitted their claimed expenses, that plaintiffs’
caregivers provided the same services as a skilled nurse, and that the need for Mrs. Prendushi’s
care was undisputed. Plaintiffs also submitted the affidavit of their case manager, Pamela
Feinberg-Rivken.3 Feinberg-Rivken addressed the reasonableness of plaintiffs’ attendant care
costs, claiming that plaintiffs’ caregivers provided services akin to those of a skilled nurse,
whose hourly compensation would ordinarily range between $40 and $60. Feinberg-Rivken also
opined that a rate of $12 an hour for the additional six hours of daily care was insufficient.
Farmers countered with two filings. First, Farmers filed a reply arguing that Feinberg-
Rivken’s affidavit failed to establish that a skilled or registered nurse was necessary, and that
plaintiffs had otherwise failed to substantiate their expenses. Second, Farmers moved in limine
to exclude evidence concerning wages paid to skilled nurses and to exclude Feinberg-Rivken’s
2
Notably, although the purchase agreement for that house was dated November 30, 2012,
plaintiffs waited until June 20, 2013, to provide this information to Farmers. Apparently,
foreclosure proceedings delayed closing until April 2013.
3
Feinberg-Rivkin is the CEO of Feinberg Consulting, a firm assisting individuals struggling with
catastrophic injuries.
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testimony. Farmers primarily argued that Feinberg-Rivken’s testimony as to the reasonableness
of expenses would be irrelevant absent evidence that those expenses were actually incurred.
Plaintiffs, of course, contested all of Farmers arguments.
The trial court dealt with both motions in turn, issuing two orders on April 1, 2014. First,
the court denied Farmers’ motion in limine, ruling that the motion amounted to a “disguised,
untimely motion for summary disposition.” Additionally, the court observed that plaintiffs had
submitted evidence of their expenses and that Farmers’ request to exclude evidence of a skilled
nurse’s wages pertained to weight rather than admissibility.
Second, the court denied Farmers’ summary disposition motion in 27-page opinion and
order. Beginning with rental payments, the court determined a genuine issue of material fact
existed as to whether the apartment was an allowable expense. The court based this ruling on the
attorneys’ conflicting reports as to whether Mrs. Prendushi’s apartment was in fact modified for
her care (Farmers’ counsel asserted there were no modifications to the apartment based on a
letter from plaintiffs’ counsel; plaintiffs’ counsel claimed the apartment was modified by
installing grab bars and removing doors). Equally unclear was the scope of Farmers potential
exposure since the evidence did not establish whether the potential modifications were
“combined” or “integrated” with the apartment.4 Still, the court noted that plaintiffs’ “mitigation
[of expenses by moving into the apartment] appears to be a consideration” weighing in plaintiffs’
favor.
Similarly, the court rejected Farmers’ alternative assertion that plaintiffs failed to provide
reasonable proof of ongoing rental payments because (1) Farmers sought no reimbursement for
rent already paid, (2) Farmers’ correspondence effectively conceded that plaintiffs’ update letters
constituted reasonable proof, (3) Farmers did not define “reasonable proof,” and (4) Farmers was
continuing to pay rent. The court added that Mr. Prendushi had detailed his efforts to purchase a
home in his deposition and that Farmers’ claims adjuster, Michael Schwab, could not explain
why his affidavit accused Mr. Prendushi of being uncooperative. The court elaborated, however,
that its ruling did not excuse plaintiffs from providing “reasonable proof of loss (ongoing need
for rent).”
As for attendant care expenses, the court held that the Feinberg-Rivkin affidavit was
sufficient to create a genuine issue of material fact as to whether Farmers underpaid Mrs.
Prendushi’s attendant care costs. In making this determination, the court refused to substantively
address the affidavit’s admissibility since Farmers first raised that issue in its reply brief.
Moreover, the court explained, the depositions of both Mr. Prendushi and Schwab proved that
plaintiffs had actually incurred attendant care costs, contrary to Farmers’ argument. The fact that
plaintiffs’ requests for repayment were not contemporary with the provision of services was also
of no moment to the trial court.
4
See Admire v Auto-Owners Ins Co, 494 Mich. 10, 28; 831 NW2d 849 (2013) (distinguishing
between the recovery allowed for “combined” and “integrated” accommodations).
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Accordingly, the court denied Farmers’ motion for summary disposition and its
accompanying request for attorney fees under MCL 500.3148(2). Farmers then sought leave to
appeal both this order as well as the order denying its motion in limine.
While that application was pending, the trial court issued another order—this time
requiring Farmers to turn over its entire litigation file. Precipitating that ruling was plaintiffs’
second motion to strike witnesses/evidence in which plaintiffs argued, among other things, that
the work-product doctrine was insufficient to shield Farmers’ litigation file from discovery.5
Agreeing with plaintiffs, the trial court ruled that Farmers’ failure to produce a sufficiently
detailed privilege log precluded application of the privilege. As the trial court explained:
The Defendant’s assertion of privilege for the litigation file in total states a
bald conclusion: “Entire file not produced pursuant to MCR 2.302(B)(3)(a) for
referencing mental impressions, conclusion, opinions, or theories of a party in
anticipation or for trial and communication subject to attorney-client privilege.”
This is woefully inadequate—especially because the Defendant nowhere
identifies, e.g., how many documents are in this file, or who authored the
documents, thereby depriving one from determining if the asserted justification is
appropriate. Interestingly, the privilege log assertion with regard to the MCCA,
which involves only a single document, is more than twice as long as the entire
log for the litigation file. The litigation file privilege has been waived. No
privilege log is asserted for the SIU file—if it exists, that privilege has been
waived. The litigation file and SIU files (if the SIU file exists) shall be produced
by April 29, 2014.
Farmers immediately sought leave to appeal that order and requested a stay. On April 30,
2014, this Court granted both requests as well as Farmers’ prior leave application. The cases
were consolidated that same day.6
III. DOCKET NO. 321348
Farmers attacks the trial court’s denials of its motion for summary disposition and motion
in limine on mostly the same grounds as those asserted below. Our review of the record shows
that both parties failed to properly support their positions at summary disposition on the issue of
whether plaintiffs’ rent is an “allowable expense.” Accordingly, we vacate that portion of the
trial court’s summary disposition ruling. Because defendant’s other challenges lack merit, we
affirm the rest of that ruling as well as the court’s order denying defendant’s motion in limine.
5
Plaintiffs also requested Farmers’ Michigan Catastrophic Claims Association (MCCA) and
Special Investigation (SIU) files. Farmers asserted the MCCA file was part of its general
insurance claims file, known as the PIP file, and asserted that the former was privileged. As for
the SIU file, Farmers claimed it did not exist.
6
Prendushi v Farmer Ins Exch, unpublished order of the Court of Appeals, entered April 30,
2014 (Docket Nos. 321348 & 321511).
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A. SUMMARY DISPOSITION
The trial court granted summary disposition under MCR 2.116(C)(10). We review a trial
court’s ruling on a motion for summary disposition de novo. McCoig Materials, LLC v Galui
Constr, Inc, 295 Mich. App. 684, 693; 818 NW2d 410 (2012). Judgment for the moving party
hinges on whether there exists a genuine issue of material fact. Curry v Meijer, Inc, 286 Mich
App 586, 590; 780 NW2d 603 (2009). “A genuine issue of material fact exists when the record,
giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468
(2003). Initially, the moving party bears the burden to support its claim through affidavits,
depositions, admissions, or other documentary evidence. McCoig Materials, LLC, 295 Mich
App at 693. When the moving party properly supports its motion, the burden shifts to the
nonmoving party who may not rest upon the mere allegations or denials of its pleading; instead,
to survive the motion, the nonmoving party must, by affidavits or other evidentiary materials, set
out specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); Skinner v
Square D Co, 445 Mich. 153, 160-161; 516 NW2d 475 (1994). If after this there remains no
genuine issue of material fact, the moving party is entitled to judgment a matter of law. Curry,
286 Mich. App. at 591.
1. ALLOWABLE EXPENSES UNDER THE NO-FAULT ACT
The no-fault automobile insurance act, MCL 500.3101 et seq., entitles those injured in
automobile accidents to a variety of PIP benefits from their insurance carriers. Johnson v Recca,
492 Mich. 169, 173; 821 NW2d 520 (2012). Among the categories of PIP benefits compensable
under this scheme are those for “allowable expenses,” MCL 500.3107, which plaintiffs seek in
this case. “Allowable expenses” consist of “all reasonable charges incurred or reasonably
necessary products, services, and accommodations for an injured person’s care, recovery, or
rehabilitation.” MCL 500.3107(1)(a). Accordingly, for a PIP claimant to obtain benefits for an
“allowable expense,” the following must be true: “(1) the expense must be for an injured
person’s care, recovery, or rehabilitation, (2) the expense must be reasonably necessary, (3) the
expense must be incurred, and (4) the charge must be reasonable.” Douglas v Allstate Ins Co,
492 Mich. 241, 259; 821 NW2d 472 (2012).
a. IS PLAINTIFF’S RENT AN ALLOWABLE EXPENSE?
In determining what constitutes an “allowable expense,” our Supreme Court has
emphasized MCL 500.3107(1)(a)’s plain language, noting that unless a product, service, or
accommodation is actually for an injured person’s care, recovery or rehabilitation, it is not
recoverable. Admire v Auto-Owners Ins Co, 494 Mich. 10, 25-26; 831 NW2d 849 (2013). Thus,
costs for ordinary, everyday products, expenses, or accommodations that an injured claimant
would otherwise bear absent the injury do not qualify. Id. at 26. Instead, the product, expense,
or accommodation must be “new in its essential character” to be compensable. Id. at 27.
The joining of a special accommodation or modification to an ordinary item does not
deprive the accommodation or modification of its essential character, however. Rather the scope
of recovery under those circumstances depends upon whether the special accommodation or
modification is “combined” or “integrated” with the ordinary item. Id. at 28. A “combined”
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accommodation or modification is one that, although joined to an ordinary product, may be
separated into components related specifically to the injured person’s care, recovery, or
rehabilitation. Id. at 28-29. Of course only the separate components are compensable for
“combined” modifications. Id. In contrast, an “integrated” modification is one blended with an
ordinary product such that the resulting product or accommodation cannot be separated easily
into unit costs. Id. at 29. An “integrated” product is compensable in full. Id. at 29-30.
In the trial court Farmers asserted (as it does now) that plaintiffs’ rent is not an
“allowable expense” because the apartment provides no special accommodations for Mrs.
Prendushi’s care, recovery, or rehabilitation. Thus, Farmers argued, the apartment is merely an
ordinary cost of life. In support, Farmers only cited a letter from plaintiffs’ counsel dated
November 29, 2012, explaining that Mrs. Prendushi’s apartment does not accommodate her
injures.7 As the letter states in pertinent part:
[P]lease be advised that my clients, Roland Prendushi and Rajmonda
Prendushi, have been living in extremely unacceptable and intolerable living
conditions. More specifically, the apartment does not have proper bathroom
accessibility for Mrs. Prendushi, who showers at the local YMCA and does NOT
accommodate her physical, cognitive and emotional disabilities. [Emphasis in
original.]
Citation to a letter containing the statement of another-when offered for the truth of the
matter asserted, as it was here-is not proper documentation in support of a motion for summary
disposition. MCR 2.116(G)(6); CSC Assoc Ltd Partnership v Gen Retirement Sys, 192 Mich
App 360, 364; 480 NW2d 275 (1992). Defendant therefore failed to shoulder its burden in
properly supporting its motion, Oliver v Smith, 269 Mich. App. 560, 566-567; 715 NW2d 314
(2006), and it should have been denied on this issue on that ground alone.
Nevertheless, the trial court made a ruling based upon plaintiff’s counsel’s letter and the
references made by that same attorney contained in the response to the motion for summary
disposition. In that response counsel asserted that there were some modifications made to the
apartment, in particular handrails and removal of some doors. Based on that assertion, the court
concluded that modifications were made. But none of this is evidence, and the court can only
grant or deny summary disposition under MCR 2.116(C)(10) based on properly presented
evidence. MCR 2.116(G)(3)(b).
In fact, the only proper documentary evidence presented below (attached to plaintiff’s
response) was a letter from Mr. Prendushi that merely foreshadowed the message from plaintiffs’
attorney quoted previously. As Mr. Prendushi’s letter explained: “[W]e cannot live in this
apartment anymore [because] [t]here is no accessibility for my wife, no bathroom for her, no
space to move her around and our master bedroom has been used as a bathroom for almost 13
7
Although Farmers contends that, in addition to this letter, it also provided a description of
plaintiffs’ apartment, no such description accompanied Farmers’ motion below.
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years, the whole apartment smells so bad.” At first blush this letter seems to reveal that
plaintiffs’ apartment does not accommodate any of Mrs. Prendushi’s injuries.
However, on appeal both parties rely on evidence they did not cite below. Plaintiffs cite
Mr. Prendushi’s deposition testimony indicating that a ramp and bars were installed for his wife.8
By the same token, while Farmers quotes this same deposition transcript for Mr. Prendushi’s
assertion that the apartment was not accessible for his wife, Farmers did not rely upon that
testimony in support of its argument below, either. This is certainly not the forum for the parties
to rely on evidence they neglected to cite in the first instance. See Barnard Mfg Co, Inc v Gates
Performance Engineering, Inc, 285 Mich. App. 362, 380; 775 NW2d 618 (2009) (“When
reviewing a motion for summary disposition, this Court’s review is limited to review of the
evidence properly presented to the trial court”), citing, among others, Guarino v Brookfield Twp
Trustees, 980 F2d 399, 404 (CA 6, 1992) (“This Court will not entertain on appeal factual
recitations not presented to the district court any more readily than it will tolerate attempts to
enlarge the record itself.”). We accordingly vacate the trial court’s ruling regarding whether the
rent is an ordinary expense, and remand for further consideration of this issue through the
submission of evidence (be it by motion or otherwise) to the trial court.9
Because this issue will be reviewed again on remand, we briefly comment upon the trial
court’s alternative mitigation analysis. Specifically, the trial court held that where Mrs.
Prendushi moved from the nursing home only after consultation with Farmers, the question of
whether this move reasonably mitigated plaintiffs’ damages was one for the jury. In reaching
this determination, the trial court relied on Marquis v Hartford Accident & Indemnity (After
Remand), 444 Mich. 638, 651-652; 513 NW2d 799 (1994), in which the Supreme Court
determined that the common law obligation to mitigate damages applied to a claim for work-loss
benefits under MCL 500.3107(1)(b) (permitting recovery for lost income resulting from the work
an injured person would have performed for three years after the accident but for the injury). Id.
at 651. But whether an injured claimant has an obligation to accept a lesser paying job in order
to mitigate work-loss damages is distinct from the central question here. Indeed, the issue at
hand is not whether Mrs. Prendushi was required to live in an apartment rather than a nursing
home in order to mitigate damages, but instead whether her apartment is reasonably necessary
8
Plaintiffs admit that they did not cite, let alone mention, that testimony in their response below.
Moreover, it was Farmers—not plaintiffs—who provided that deposition transcript to the trial
court in its reply brief, i.e., after plaintiffs filed their response.
9
Farmers additionally argues that ongoing rental expenses are not compensable. Discussion of
that issue would be premature, however, given that on remand the court must first resolve the
threshold matter of whether any compensable modifications were made to the apartment in the
first place. Nevertheless, we note that neither party disputes that housing is an ordinary cost of
life. Accordingly, if it is determined that compensable modifications were made to the
apartment, the remaining issue is whether plaintiffs are entitled to compensation for a combined
or integrated modification. In the event those modifications are integrated, the court would then
have to determine whether ongoing rental costs are appropriate.
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for her care, recovery, or rehabilitation under § 3107(1)(a). Only if it is are the expenses
compensable.
To this point, Griffith v State Farm Auto Ins Co, 472 Mich. 521; 697 NW2d 895 (2005), is
instructive. There, the Supreme Court determined that an injured claimant’s food was an
allowable expense if consumed at an institution, but not at home since the claimant was required
to eat “hospital food” for his care, recovery, or rehabilitation while in the institution. Id. at 537-
538. By analogy, the Court extended this reasoning to housing costs, asking rhetorically, “While
Griffith was institutionalized, defendant paid his housing costs. Should defendant therefore be
obligated to pay Griffith’s housing payment now that he has been released when Griffith’s
housing needs have not been affected by his injures?” Id. at 539.
Here, no one disputes that housing is an ordinary cost of life. Rather, the issue is whether
Mrs. Prendushi’s apartment has been modified for her care, recovery, or rehabilitation. Or, in
Griffith’s language, are Mrs. Prendushi’s housing needs affected by her injuries? Id. Plaintiffs
obviously argue that her housing needs are so affected, but absent any evidence that an otherwise
ordinary apartment has been modified for those needs, Farmers cannot be liable for her rent.
And while we are sensitive to plaintiffs’ claim that they used an unsuitable apartment as a
stopgap while they located suitable housing, Farmers’ total liability for the rent still hinges on
whether the apartment was equipped with handicap modifications, either in a combined or
integrated fashion. Admire, 494 Mich. 28-29. Again, only the latter is fully compensable. As we
previously concluded, however, on this record there was insufficient evidence (with some of the
evidence simply conflicting) as to whether the apartment was modified for Mrs. Prendushi’s
care, recovery, or rehabilitation, such that the rent—or the cost for accommodation, depending
on its scale and scope—are an “allowable expense.” The trial court must reconsider this issue on
remand.10
b. ARE PLAINTIFFS’ ATTENDANT CARE EXPENSES “ALLOWABLE EXPENSES?”
Regarding Mrs. Prendushi’s attendant care costs, Farmers does not dispute that such
expenses, even if provided by family members, may constitute allowable expenses under the no-
fault act provided they are not for “ordinary and necessary services.” See In re Carroll (On
Remand), 300 Mich. App. 152, 170; 832 NW2d 276 (2013), citing Douglas, 492 Mich. at 262.
10
Farmers asserts that the trial court’s subsequent order excluding evidence of any “costs-
savings” plaintiffs may have achieved by moving from the nursing home effectively undermines
the trial court’s mitigation analysis. Plaintiffs respond that the trial court’s evidentiary ruling—
relying at least in part on MRE 403 to exclude evidence whose undue prejudice substantially
outweighed its probative value—was based on a different standard. What plaintiffs fail to
realize, however, is that evidence must be substantively admissible in order to defeat a motion
for summary disposition. Barnard, 285 Mich. App. at 373 (a trial court may only consider
substantively admissible evidence when ruling on a motion for summary disposition).
Regardless, because the trial court improperly denied Farmers’ motion for summary disposition
on this point for the reasons already stated, we need not consider this unpreserved argument
further.
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Instead, Farmers claims plaintiffs may not recover additional attendant care costs because: (1)
Mrs. Prendushi did not actually incur costs for those services, (2) plaintiffs submitted no proof of
the amount of loss, and (3) Mrs. Prendushi’s costs are not reasonable. Taking each in turn, we
conclude that each of these arguments lacks merit.
i. DID PLAINTIFFS INCUR ATTENDANT CARE EXPENSES?
The law is clear that in order for attendant care costs to constitute “allowable expenses”
under the no-fault act, they must, among other things, actually be incurred by the claimant.
Douglas, 492 Mich. at 262-263. An expense is actually incurred when the claimant “become[s]
liable or subject to [someone] because of [his or her] own actions.” Id. at 267 (citation omitted).
The touchstone for determining whether an injured claimant actually incurred attendant care
expenses as contemplated by MCL 500.3107(1)(a) hinges on whether the caregiver has an
expectation of compensation. Douglas, 492 Mich. at 267-268, citing Burris v Allstate Ins Co,
480 Mich. 1081; 745 NW2d 101 (2008). This expectation may be established in a variety of
ways, including documentary evidence (such as bills, statements or contracts) or even a
caregiver’s testimony. Douglas, 492 Mich. at 269-270. However, “[w]ithout the expectation of
compensation the evidence fail[s] to establish that the plaintiff ‘incurred’ attendant-care
expenses.” Id. at 268, quoting Burris, 480 Mich. at 1081 (second alteration in original).
Concerning incurred expenses, Farmers focuses exclusively on whether plaintiffs’
family-caregivers expected compensation for attendant care costs beyond what Farmers had
already paid. In support, Farmers cites only the deposition testimony of Mrs. Prendushi’s
husband and daughter. As for the former, Farmers asserts that Mr. Prendushi expressed only
dissatisfaction with the rate he was paid (Mr. Prendushi conceded he was unhappy with his
remuneration, but could not explain what rate of compensation he considered reasonable). And
as for the latter, Farmers points out that Mrs. Prendushi’s daughter admitted that her mother
owed her nothing for her services.
Setting aside the daughter’s testimony (whose testimony does not create a genuine issue
of material fact), this evidence viewed in the light most favorable to plaintiffs does not reveal
that Mr. Prendushi lacked an expectation of compensation. To the contrary, it reveals that he
expected greater compensation. Mr. Prendushi could not have made this point more succinctly
than when he testified at that same deposition that the rate Farmers paid “was not good for me.”11
While Mr. Prendushi did not explain exactly how much he expected to receive, numerical
certainty is not the standard under Douglas. Rather, the claimant need only provide “some basis
for a fact-finder to conclude that the caregiver had some expectation of compensation from the
insurer, even if the expectation of compensation was not the primary motivation for providing
the care.” Douglas, 492 Mich. at 267 n 56. By the same token, the family member’s
determination to provide care, even in the absence of sufficient payment from the insurer, does
not forfeit the caregiver’s expectation of compensation. Id. Accordingly, there minimally exists
11
Plaintiffs also cite evidence that Farmers’ claim adjusters conceded the necessity of attendant
care. However, neither citation goes to the expectation of compensation held by Mrs.
Prendushi’s family-caregivers.
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a genuine issue of material fact as to whether Mrs. Prendushi incurred attendant care costs with
respect to Mr. Prendushi’s services.
ii. DID PLAINTIFFS PROVE THE AMOUNT OF LOSS?
Farmers contends that even if Mrs. Prendushi incurred additional attendant care costs,
they did not establish the amount of those costs as MCL 500.3142 requires. Section 3142
requires a claimant to submit “reasonable proof of the fact and of the amount of loss sustained”
to trigger an insurer’s obligation to pay. MCL 500.3142(2). This is necessary since a jury may
not speculate as to the amount of losses a claimant has incurred. Attard v Citizens Ins Co of
America, 237 Mich. App. 311, 322; 602 NW2d 633 (1999). However, in submitting reasonable
proof, the claimant need not establish the exact amount of money the insurer owes since “[t]he
statute requires only reasonable proof of the amount of loss, not exact proof.” Williams v AAA
Mich, 250 Mich. App. 249, 267; 646 NW2d 476 (2002) (emphasis in original).
In support of its argument, Farmers accuses plaintiffs of not just failing to prove the
amount of their loss, but of actually refusing to submit any proof on this issue. Specifically,
Farmers highlights Mr. Prendushi’s reliance on the attorney-client privilege in refusing to
delineate the total amount of compensation he seeks from Farmers. Mr. Prendushi’s testimony is
not the whole story, however, as plaintiffs also submitted the affidavit of their caseworker,
Feinberg-Rivkin, in response to Farmers’ motion. That affidavit—whose admissibility Farmers
challenged in a separate motion—sets forth the caseworker’s familiarity with Mrs. Prendushi’s
attendant care needs as well as the services provided by Mrs. Prendushi’s family. Feinberg-
Rivkin clearly opined that Mrs. Prendushi’s caregivers provide services akin to those of a skilled
nurse, whose hourly compensation would range between $40 and $60, and that anyone providing
such services would be entitled to that level of compensation regardless of his or her
classification as a skilled nurse.
This evidence clearly does not call upon jurors to guess, but instead provides an exact
range from which they may determine whether plaintiffs seek a reasonable amount of additional
attendant care costs. Plaintiffs have therefore satisfied their burden to respond with documentary
evidence regarding the amount of their loss.12 The trial court was correct on this point.
iii. ARE THE ATTENDANT CARE COSTS REASONABLE?
As its last fallback, Farmers maintains that plaintiffs’ additional attendant care costs are
not recoverable because they are unreasonable. We begin our analysis by stating the obvious:
insurers are only obligated to pay PIP benefits for reasonable charges. Bronson Methodist Hosp
v Auto-Owners Ins Co, 295 Mich. App. 431, 448; 814 NW2d 670 (2012). But what constitutes a
12
Plaintiffs also assert that, in addition to the Feinberg-Rivkin affidavit, they presented evidence
that Mr. Prendushi responded to all of Farmers’ requests for information regarding attendant care
services and that Farmers’ claims adjusters failed to review the claims file adequately. However,
neither aids our analysis here since neither pertains to the additional amount plaintiffs claim
Farmers owes.
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reasonable charge? While the fact-finder ultimately makes this determination, id., our Supreme
Court has provided guidance regarding the reimbursement of family-caregivers like the ones in
this case. Most relevant is the actual rate paid to caregivers who provide similar services rather
than the rate an agency charges its patients. Douglas, 492 Mich. at 275. This is “because [that
compensation] helps the fact-finder to determine what the caregivers could receive on the open
market.” Id.
Here, Farmers relies upon a chart from the Federal Bureau of Labor Statistics to justify
the rate it pays Mrs. Prendushi’s family-caregivers. That chart outlines the hourly mean and
median wages for healthcare workers in plaintiffs’ geographic market ranging from personal care
aides (approximately $10 an hour) to licensed nurses (approximately $20 an hour). In response,
plaintiffs cite the Feinberg-Rivkin affidavit, which as noted, delineates the tasks of Mrs.
Prendushi’s caregivers and opines that several of their tasks “fall within the category of a Skilled
Nurse,” who Feinberg-Rivkin opines, would be paid at a rate of $40 to $60 an hour depending on
the services performed.
Farmers claims this affidavit is insufficient because no evidence shows that Mrs.
Prendushi actually requires the care of a skilled nurse. In support, Farmers relies on the January
16, 2014 letter from Mrs. Prendushi’s physician indicating that she does not require a Licensed
Practical Nurse (LPN) or advanced attendant care at this time. Farmers asserts that this evidence
reveals that payment for a professional nurse’s services would be more than the “least expensive
adequate means” that Farmers is required to reimburse plaintiffs, Kitchen v State Farm Ins Co,
202 Mich. App. 55, 58; 507 NW2d 781 (1993), and it is therefore not reasonable to compensate
the family-caregivers at similar rates. However, because Farmers presented this evidence in
support of its motion in limine rather than at the summary disposition stage, it is not properly
before us now. Barnard Mfg Co, Inc, 285 Mich. App. at 380, citing, among others, Guarino, 980
F2d at 404.
But even if we were to consider this evidence, it would not be conclusive in light of
Feinberg-Rivkin’s opinion that a caregiver, “regardless of classification, i.e., Skilled Nurse,
LPN/High Tech Aide or Home Health Aide, is paid the same hourly rate for all care provided”
since they are required to be as knowledgeable and available to their patient during their shifts as
skilled providers. Farmers’ argument therefore goes to the weight of Feinberg-Rivkin’s opinion,
which is an argument to be made at trial, not here. Skinner, 445 Mich. at 161.
Moreover, Feinberg-Rivkin’s opinion is consistent with Douglas, which explained that
“[i]n determining reasonable compensation for an unlicensed person who provides health care
services, a fact-finder may consider the compensation paid to licensed health care professionals
who provide similar services.” Douglas, 492 Mich. at 274, quoting Bonkowski v Allstate Ins Co,
281 Mich. App. 154, 164; 761 NW2d 784 (2008) (alteration in Douglas). The emphasis, then, is
on the caregiver’s services rather than the caregiver’s credentials. See Bonkowski, 281 Mich
App at 168-169 (allowing a family-caregiver to recover compensation comparable to that of a
qualified attendant caregiver where the family-caregiver “provide[d] care consistent with that of
a licensed health care professional.”). Consequently, where plaintiffs have presented evidence
that at least some of Mrs. Prendushi’s caregivers’ tasks are akin to those provided by licensed
professionals and plaintiffs have established the amount of compensation typically received for
those services, a genuine issue of material fact exists on this issue.
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B. MOTION IN LIMINE
This brings us to Farmers’ challenge regarding the denial of its motion in limine.
Although we review a trial court’s decision to admit evidence for an abuse of discretion, we
review related preliminary questions of law de novo. Barnett v Hidalgo, 478 Mich. 151, 158-
159; 732 NW2d 472 (2007). A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388;
719 NW2d 809 (2006).
In raising this issue, Farmers essentially recasts its prior meritless attack on the Feinberg-
Rivkin affidavit with one additional wrinkle. Specifically, Farmers asserts that just as the rate an
agency charges its patients is irrelevant to the compensation of a family-caregiver, so too are a
skilled nurse’s wages irrelevant when that family-caregiver lacks a professional licensure. As
already noted, however, where similar services are concerned, a fact-finder may consider the
compensation paid to licensed care providers in determining a family-caregiver’s remuneration.
Douglas, 492 Mich. at 274. This motion in limine was properly denied.
IV. DOCKET NO. 321511
Finally, Farmers invokes the work-product doctrine in contesting the order requiring
production of its entire litigation file. Whether the work-product privilege is applicable and
whether it has been waived are questions of law that we review de novo. Augustine v Allstate Ins
Co, 292 Mich. App. 408, 419; 807 NW2d 77 (2011). Upon making those determinations, our
attention turns towards the trial court’s ultimate decision on plaintiffs’ discovery motion, which
we review for an abuse of discretion. Id.
Evidentiary discovery in Michigan is open and broad, provided, among other things, that
the information sought is not privileged. MCR 2.302(B)(1); Reed Dairy Farm v Consumers
Power Co, 227 Mich. App. 614, 616; 576 NW2d 709 (1998). Privileged information includes
direct communications between the attorney and client for legal advice, as well as the related
qualified privilege pertaining to written material known as the work-product doctrine.
Augustine, 292 Mich. App. at 420. The work-product doctrine protects from discovery “ ‘any
notes, working papers, memoranda or similar materials, prepared by an attorney in anticipation
of litigation . . . .’ ” Messenger v Ingham Co Prosecutor, 232 Mich. App. 633, 636-637; 591
NW2d 393 (1998), quoting Black’s Law Dictionary (6th ed, 1990), p 1606. The doctrine is
codified in MCR 2.302(B)(3)(a), which provides:
Subject to the provisions of subrule (B)(4) [regarding the discovery of
facts and opinion held by experts], a party may obtain discovery of documents
and tangible things otherwise discoverable under subrule (B)(1) and prepared in
anticipation of litigation or for trial by or for another party or another party’s
representative (including an attorney, consultant, surety, indemnitor, insurer, or
agent) only on a showing that the party seeking discovery has substantial need of
the materials in the preparation of the case and is unable without undue hardship
to obtain the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions, conclusions, opinions,
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or legal theories of an attorney or other representative of a party concerning the
litigation.
As MCR 2.302(B)(3) reveals, the work-product privilege is not absolute and must be
balanced against an opposing party’s showing of substantial need for the materials plus an
inability to obtain the information without undue hardship. Messenger, 232 Mich. App. at 638.
Even with such a showing, however, only factual and not deliberative work product is
discoverable. Augustine, 292 Mich. App. at 421.
Here, in response to plaintiffs’ supplemental discovery request for Farmers’ entire claims,
SIU, and litigation files, Farmers provided a “privilege log.” Regarding the litigation file, that
log provided only the following: “Entire file not produced pursuant to MCR 2.302(B)(3)(a) for
referencing mental impression, conclusion[s], opinions, or theories of a party in anticipation of
litigation or for trial and communication subject to attorney-client privilege.” The trial court
found this response wanting, noting that Farmers had failed to comply with Michigan authority
requiring the production of a detailed privilege log.
As a preliminary matter, we note that Michigan law does not require a privilege log to
accompany the assertion of the work-product privilege; instead Michigan cases have merely
acknowledged that federal authority requiring parties to specifically identify the documents
allegedly subject to the privilege may guide our interpretation of Michigan’s work-product
doctrine. See Koster v June’s Trucking, Inc, 244 Mich. App. 162, 169; 625 NW2d 82 (2000),
citing Great Lakes Concrete Pole Corp v Eash, 148 Mich. App. 649, 656 n 6; 385 NW2d 296
(1986) (noting that “one method” to alleviate the burden of an in camera inspection of volumes
of documents in complex litigation is to employ the method of federal courts requiring the
production of a privilege log). But federal guidance is not the same as a state requirement.
This is not to say, however, that the trial court could not have ordered a detailed privilege
log before conducing an in camera inspection. Indeed, we agree with the trial court that
Farmers’ assertion of the privilege was “woefully inadequate” where Farmers did nothing more
than regurgitate MCR 2.302(B)(3). It is impossible to discern what specifically privileged
information Farmers’ litigation file contains from that blanket assertion alone. Moreover, while
on appeal Farmers relies on Schwab’s deposition to support its assertion of the privilege,
Farmers did not cite that testimony either in its response to plaintiffs’ motion on this matter or
during the ensuing motion hearing. In any event, that testimony does nothing more than vaguely
describe the contents of the litigation file as containing correspondence and court filings. Thus,
even were we to consider that testimony, we are still left without the specific information needed
to discern the privileged contents of the litigation file.
Nevertheless, Farmers’ failure to adequately describe its litigation file cannot mean that it
has categorically waived any privilege it may have. See D’Alessandro Contracting Group, LLC
v Wright, 308 Mich. App. 71, 81; 862 NW2d 466 (2014) (the waiver of the work-product privilege
must, among other things, be voluntary); Leibel v Gen Motors Corp, 250 Mich. App. 229, 241;
646 NW2d 179 (2002) (the waiver of the related attorney-client privilege must be “an intentional
and voluntary act that cannot arise by implication . . . .”). And absent some sort of waiver, MCR
2.302(B)(3)(a) expressly requires a trial court to protect privileged work product from discovery
(“the court shall protect”).
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The fact that Farmers did not waive this privilege does not mean Farmers’ generic
invocation of it is justified, however. As noted, nothing in either Schwab’s deposition or
Farmers’ blanket denial did anything to “put both plaintiffs and the court on notice regarding the
nature of the privileges asserted and the documents to which the alleged privileges applied.”
Koster, 244 Mich. App. at 170. This is significant, for even in Koster—upon which both parties
rely—this Court concluded that although the insurance company’s court-ordered letter organized
the documents at issue into four categories (including communications between counsel and the
insurance company, internal communications of the insurance company generated as a result of
the advice of counsel, billing information, and information the plaintiffs had agreed not to seek),
this was not sufficient to definitively cloak the entire claims file in the work-product privilege.
Id. at 170-172. It was for this reason that the Koster Court remanded that case for the trial court
to determine whether the claims file documents were in fact protected under the work-product
doctrine in the first instance. Id. at 172.
Like Koster, this record is insufficient to determine the scope of the work-product
doctrine’s protection. But Farmers has provided even less information regarding the contents of
its litigation file than the insurance company in Koster. Accordingly, even before plaintiffs can
be required to demonstrate any substantial need or undue hardship, see id. (the burden shifts to
the party seeking discovery to establish substantial need and undue hardship after the court
determines whether the work-product doctrine applies), the trial court must first determine what
materials in Farmers’ litigation file are subject to the privilege. As Great Lakes Concrete Pole
Corp instructs, one method may be to order a more detailed privilege log before conducting an in
camera inspection. Great Lakes Concrete Pole Corp, 148 Mich. App. at 656 n 6. But whatever
method the court chooses, ordering Farmers to categorically produce its litigation file absent a
waiver or determination regarding whether the work-product doctrine applies is outside the range
of reasonable and principled outcomes under these circumstances.
V. CONCLUSION
In Docket No. 321348, we affirm the trial court’s order denying Farmers’ motion in
limine. However, we vacate the trial court’s summary disposition ruling that plaintiffs’ rent is an
“allowable expense” and remand for further proceedings on that issue. In all other respects, we
affirm the trial court’s order denying Farmers’ motion for summary disposition. In Docket No.
321511, we reverse the trial court’s order requiring Farmers to produce its entire litigation file.
On remand, the court should determine which documents (if any) in the file are subject to the
work-product privilege and then determine whether plaintiffs have demonstrated the substantial
need and undue hardship necessary to obtain access to the factual portions of the litigation file.
We do not retain jurisdiction.
No costs, neither party having prevailed in full. MCR 7.219.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Donald S. Owens
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