Proudfoot v. State Farm Mutual Insurance

658 N.W.2d 838 (2003) 254 Mich. App. 702

Evelyn PROUDFOOT, Plaintiff-Appellee,
v.
STATE FARM MUTUAL INSURANCE CO., Defendant-Appellant.

Docket No. 232282.

Court of Appeals of Michigan.

Submitted October 2, 2002, at Lansing. Decided January 10, 2003, at 9:10 a.m. Released for Publication March 26, 2003.

Logeman, Iafrate, Januszewski & Pollard, P.C. (by Robert E. Logeman), Ann Arbor, for the plaintiff.

Garan Lucow Miller, P.C. (by Daniel S. Saylor and Judith A. Moskus), Detroit, for the defendant.

Before: COOPER, P.J., and JANSEN and R.J. DANHOF^[*], JJ.

COOPER, P.J.

Defendant appeals as of right from the trial court's imposition of prejudgment interest, M.C.L. § 600.6013; no-fault penalty interest, M.C.L. § 500.3142; and attorney fees, M.C.L. § 500.3148. We affirm in part, reverse in part, and remand.

I. Factual Background

In November 1995, plaintiff, a resident of England, was involved in an accident during a visit to Michigan. Plaintiff sustained serious injuries when she was struck by an automobile while crossing a street. As a result of these injuries, plaintiff was subsequently required to undergo the amputation of her right leg above the knee. Plaintiff was fitted for a prosthetic leg but encountered complications, mandating the use of a wheelchair. Defendant, plaintiff's insurer, compensated her for the majority of expenses arising out of the accident. However, a dispute arose over her request for home modifications.

On December 2, 1997, plaintiff's husband submitted a letter to defendant, with an occupational therapist's report, detailing the need for modifications to plaintiff's home. In the letter, he noted that he had contacted a local architect to prepare a proposal and an estimate for the necessary modifications. Plaintiff paid the architect $815^[1] for the proposal. The architect's proposal, bill, and estimate were forwarded to defendant in March 1999. According to plaintiff's architect, it would cost approximately $250,000, including the value added tax of 17.5 percent, to make the necessary modifications.

A few months after receiving plaintiff's proposal, defendant sent its own occupational therapist to assess plaintiff's situation. On the basis of its therapist's findings, defendant claimed that the necessary modifications could be accomplished for substantially less money. Defendant denied plaintiff's reimbursement request for the architect's bill and failed to provide any money toward the home modifications she requested. Defendant conceded the necessity of home modifications but maintained that plaintiff's requests were unreasonable. At the time of trial, plaintiff's home remained unmodified.

The jury determined that plaintiff incurred allowable expenses as a result of the accident in the amount of $815 for the architect's bill. According to the jury, defendant received reasonable proof of this expense on March 2, 1999. The jury further found that modifications to plaintiff's home were reasonably necessary and that the amount of the allowable expense was $220,500, plus the value added tax. The jury stated that reasonable proof was supplied to defendant for the home modifications on December 2, 1997. On January 5, 2001, the trial court entered a judgment against defendant pursuant to the jury's verdict. The trial court awarded plaintiff $815 for the architect's bill and $259,087.50 for the home modifications.^[2] In addition, the trial court awarded plaintiff attorney fees and costs and assessed no-fault penalty interest from April 1, 1999, for the architectural services and the future home modifications. The trial court further assessed judgment interest against defendant on the architect's bill, the no-fault interest on the architect's bill, the future home modifications, the no-fault attorney fees and costs, and the no-fault interest on the home modifications. The judgment interest began to accrue November 27, 1997.

II. A Historical Examination of Michigan's No-Fault Act

To resolve the issues presented in this case, we must first discuss the history and purpose of the no-fault act. It has been held that "[t]he overall goal of the no-fault insurance system is to provide accident victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system." Williams v. AAA Michigan, 250 Mich.App. 249, 257, 646 N.W.2d 476 (2002).

Our Supreme Court upheld the constitutionality of the no-fault act in Shavers v. Attorney Gen., 402 Mich. 554, 621-622, 267 N.W.2d 72 (1978), noting the Legislature's rationale for abolishing tort remedies for personal injuries arising out of motor vehicle accidents. Specifically, the Supreme Court cited the Legislature's view that a change was necessary in part to reduce the heavy burden placed on the court system. The Supreme Court further noted that one of the operational deficiencies that the Legislature endeavored to change with the no-fault act was the fact that the former tort system "discriminated, in terms of recovery, against the uneducated and those persons on a low income scale." Id. at 622, 267 N.W.2d 72. The Supreme Court determined that the no-fault act's requirement of prompt payment would ease delays in the court system by decreasing the number of motor vehicle personal injury tort suits. Id. at 622-623, 267 N.W.2d 72. Additionally, the Supreme Court suggested that timely payments under the no-fault act would help to protect the disadvantaged or lower income individuals by relieving some of the pressures on them "to settle serious claims prematurely and for less than an equitable amount." Id. at 623, 267 N.W.2d 72.

The avowed overall goals and purpose of the no-fault act are defeated if no-fault insurers are allowed to unreasonably deny benefits, thereby requiring their insureds to seek recourse in the legal system. See Lakeland Neurocare Ctrs. v. State Farm Mut. Automobile Ins. Co., 250 Mich.App. 35, 42-43, 645 N.W.2d 59 (2002). To encourage no-fault insurers to promptly pay an injured party, the Legislature enacted penalty provisions allowing for the payment of attorney fees on unreasonably denied claims and interest on overdue payments. Univ of Mich. Regents v. State Farm Mut. Ins. Co., 250 Mich.App. 719, 739, 650 N.W.2d 129 (2002).

III. Standard of Review

The interpretation and application of statutes are questions of law that are reviewed de novo on appeal. Lincoln v. Gen. Motors Corp., 461 Mich. 483, 489-490, 607 N.W.2d 73 (2000). The primary goal when construing a statute is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). When determining the Legislature's intent, this Court must first look to the statute's specific language. Gauntlett v. Auto-Owners Ins. Co., 242 Mich.App. 172, 177, 617 N.W.2d 735 (2000). Judicial construction is unnecessary if the meaning of the language is clear. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). However, judicial construction is appropriate when reasonable minds can differ regarding the statute's meaning. Gauntlett, supra at 177, 617 N.W.2d 735. Terms contained in the no-fault act are read "``in the light of its legislative history and in the context of the no-fault act as a whole.'" Id. at 179, 617 N.W.2d 735, quoting Gobler v. Auto-Owners Ins. Co., 428 Mich. 51, 61, 404 N.W.2d 199 (1987). Further, courts should not abandon common sense when construing a statute. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). Given the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries. Spencer v. Citizens Ins. Co., 239 Mich.App. 291, 300-301, 608 N.W.2d 113 (2000).

IV. Declaratory Judgment versus Money Judgment

Defendant initially characterizes the judgment entered by the trial court as a money judgment, rather than a declaratory judgment for plaintiff's future home modifications, and by implication indicates that a trial court may not establish an escrow account to enforce its judgment. However, defendant fails to explain or offer any authority for its position that a trial court is without the authority to establish such an account. See Chapdelaine v. Sochocki, 247 Mich.App. 167, 174, 635 N.W.2d 339 (2001). A declaratory judgment is unique in that it is neither completely legal nor equitable in nature. See Coffee-Rich, Inc. v. Dep't of Agriculture, 1 Mich.App. 225, 135 N.W.2d 594 (1965); see also 9 Michigan Pleading & Practice, Declaratory Judgments, § 69.03, p. 797.

In Michigan, courts of record have the authority to declare the rights of an interested party seeking a declaratory judgment. MCR 2.605(A)(1). "Declaratory judgments have the force and effect of, and are reviewable as, final judgments." MCR 2.605(E). Damages may also be granted after the entry of a declaratory judgment. Durant v. Michigan, 456 Mich. 175, 208-209, 566 N.W.2d 272 (1997); see, generally, 20 Michigan Law & Practice (2d ed.), Judgment, § 86, p. 93. However, such supplemental relief requires reasonable notice and a hearing. MCR 2.605(F). Conversely, a money judgment simply requires the immediate payment of a sum of money as opposed to directing an act to be completed. In re Forfeiture of $176,598, 465 Mich. 382, 386, 633 N.W.2d 367 (2001).

In this case, the trial court entered the following judgment with regard to plaintiff's future home modifications:

IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff recover future home modifications as awarded by the jury in the amount of $220,500.00 plus value added tax of 17.5% for a total future home modification award in the amount of $259,087.50 is awarded, [sic] such amount to be overseen by the Court as the expenses are incurred under the no-fault law.

In Manley v. DAIIE, 425 Mich. 140, 388 N.W.2d 216 (1986), the Supreme Court ruled that a trial court may enter a declaratory judgment for a specific amount of money when future damages are involved. However, it is important to note that the future damages awarded in Manley, involved reimbursement for future nursing care. Such an award was truly a declaration of future rights because the hourly rate for nurses aides and the amount of nursing care necessary fluctuates and is an ongoing expense.

In the instant case, the term "declaratory," as used on the verdict form, is really a misnomer. Unlike Manley, this case involves a sufficiently definitive one-time expense that a jury deemed reasonable and necessary. Furthermore, it is important to note that declaratory relief is not considered exclusive and that additional monetary relief may be appropriate where the parties had notice and a hearing. See Durant, supra at 208-209, 566 N.W.2d 272. A jury trial was held in this case to determine what constituted a reasonable amount for home modifications. Both defendant and plaintiff had an opportunity to argue the viability of plaintiff's plan during the trial and defendant has not contested the jury's verdict. See id. at 209-210, 566 N.W.2d 272. As pointed out in Durant, supra at 211, 566 N.W.2d 272, "[t]o deny monetary relief here might provide incentive for protracted litigation in the future" given defendant's refusal to provide plaintiff any home modifications since her initial request in 1997. Thus, we find that the trial court appropriately ordered defendant to pay the total amount of home modification benefits to the trial court for distribution.

V. No-Fault Attorney Fees

Defendant next argues that the trial court clearly erred in awarding plaintiff attorney fees under M.C.L. § 500.3148(1). Specifically, defendant claims that there was a bona fide factual dispute regarding the architectural plans and that the personal protection insurance benefits for the home modifications were not overdue under the no-fault act. We disagree.

An insurer is responsible under Michigan's no-fault act for all personal protection insurance benefits arising out of "allowable expenses." MCL 500.3107(1)(a). Allowable expenses consist of "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." MCL 500.3107(1)(a). In Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 50, 457 N.W.2d 637 (1990), our Supreme Court instructed that an item is an "allowable expense" under the no-fault act if: (1) the charge is reasonable; (2) the expense is reasonably necessary; and (3) the expense is incurred.

If litigation results from an insurer's unreasonable refusal to pay benefits for an allowable expense, attorney fees are awardable. Specifically, M.C.L. § 500.3148(1) provides:

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.

Personal protection insurance benefits are considered overdue if "not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained." MCL 500.3142(2); see also Beach v. State Farm Mut. Automobile Ins. Co., 216 Mich.App. 612, 629, 550 N.W.2d 580 (1996) (holding that the term "overdue" must be similarly construed for purposes of determining the applicability of no-fault attorney fees and no-fault interest).

Absent clear error, this Court will not reverse a trial court's finding regarding an unreasonable refusal or delay in paying benefits. Attard v. Citizens Ins. Co. of America, 237 Mich.App. 311, 316-317, 602 N.W.2d 633 (1999). Clear error exists when a reviewing court is left with the definite and firm conviction on the entire record that a mistake was made. Christiansen v. Gerrish Twp., 239 Mich. App. 380, 387, 608 N.W.2d 83 (2000). However, "[i]f the insurer's refusal or delay in payment is the product of a legitimate question of statutory construction, constitutional law, or a bona fide factual uncertainty, the refusal or delay will not be found unreasonable under M.C.L. § 500.3148(1)...." Beach, supra at 629, 550 N.W.2d 580. In such a situation, the insurer must overcome a rebuttable presumption of unreasonableness and justify its delay or refusal of benefits. Id.

A. Architectural Services

Defendant questions whether the "proposed architectural drawings" amounted to an allowable expense because they lacked approval and provided no necessary service or accommodation to plaintiff.

The record indicates that plaintiff hired an architect to determine the feasibility and cost of the home modifications that were recommended and deemed necessary by her occupational therapist. It is uncontested that plaintiff paid the architect for these services. Because the architect's plans and estimate sought to implement home modifications that were deemed by a jury to be reasonably necessary for plaintiff's care, we find that the architectural services were an allowable expense chargeable to defendant. See M.C.L. § 500.3107(1)(a).

To the extent defendant further claims that it legitimately refused payment of the architect's bill because of a bone fide factual dispute, we disagree. Plaintiff notified defendant of her need for home modifications in December 1997, and informed defendant that she was obtaining the services of an architect for that purpose. Defendant received the architect's proposal and bill in March 1999, and it was not until several months later that defendant attempted to verify or assess plaintiff's needs. Defendant never questioned plaintiff's intention to hire an architect. Indeed, defendant notes in its appellate brief that the plans created by plaintiff's architect could be utilized in forming a compromise plan. It is apparent that defendant's dispute lies with the extent of the modifications recommended and not with plaintiff's consultation with an architect. Thus, we find no clear error in the trial court's award of attorney fees.^[3]

B. Home Modifications

In addition, we find that plaintiff is also entitled to attorney fees as a result of defendant's failure, despite reasonable proof of need, to make necessary modifications to plaintiff's home. Defendant does not contest the reasonableness of its refusal to modify plaintiff's home. Rather, defendant argues that personal protection insurance benefits were not due in this case until plaintiff became liable for the home modifications. In fact, defendant agreed that some home modifications were necessary and the record shows that plaintiff was without full access to her home. In spite of this, defendant never presented a plan definitively expressing the modifications it would approve or proffered any money for home modifications to plaintiff during the three years before trial. The jury found that reasonable proof of the need for these modifications was supplied to defendant on December 2, 1997, with a viable proposal and cost estimate on March 2, 1999. Consequently, there is proof to support the trial court's determination that defendant's delay was unreasonable and that the home modifications were overdue.

1. Manley and Future Expenses

Our Supreme Court has found that attorney fees are permissible in no-fault cases involving declaratory judgments for future expenses. Manley, supra at 160, 388 N.W.2d 216. The trial court in that case entered a declaratory judgment for future nursing services and awarded the plaintiff attorney fees under the no-fault act. Id. at 147, 388 N.W.2d 216. The Supreme Court in Manley upheld the award of attorney fees because the insurer unreasonably refused to pay for nursing services and the insured's attorney was forced to litigate the claim to establish the insurer's obligation to pay. Id. at 160, 388 N.W.2d 216. In holding that declaratory judgments providing for necessary and allowable future expenses were permissible, the Supreme Court stated that it would be "neither a workable nor a sound rule of law" to permit an insurer to relitigate previously decided issues when an insured seeks payment for expenses incurred after the date of trial. Id. at 157, 388 N.W.2d 216.

Similarly, in the case at bar, plaintiff was forced to seek legal action to establish defendant's obligation to pay for necessary home modifications. Defendant failed to provide any assistance to plaintiff. Absent independent financial means, plaintiff was unable to commence or obligate herself for these modifications. The record reveals a lack of any realistic finalized plan that defendant was prepared to implement at the time of trial. Consequently, the trial court properly decided that plaintiff was also entitled to attorney fees because defendant's delay in proffering a finalized alternative plan or payment was unreasonable.

2. The Purpose of Michigan's No-Fault Act

It is important to remember that the no-fault act was created in part to ease the burden on the court system and provide a manner in which all parties would have a fair opportunity to litigate legitimate no-fault claims. See Shavers, supra at 622-623, 267 N.W.2d 72; Williams, supra at 257, 646 N.W.2d 476. Defendant essentially asks this Court to accept the premise that an insured must be able to pay for or have the economic ability to obligate oneself for all benefits before they become due. However, this argument would result in economic disparity wherein only the wealthy or those with a healthy credit line would be able to pursue a dispute with their insurance company over benefits. Such a construction would condone the very injustices that the Legislature enacted the no-fault act to prevent.

In terms of home modifications, defendant's position would preempt insureds from receiving potentially costly accommodations unless they could afford the modifications themselves or find someone willing to complete the job without any assurance of payment. Indeed, in the instant case the home modifications that the jury found to be reasonably necessary totaled nearly a quarter million dollars. To require plaintiff to pay for these modifications before defendant could become liable would be inequitable given the remedial nature of the no-fault act. See Spencer, supra at 300-301, 608 N.W.2d 113. For example, Williams, supra, involved extensive home modifications that ultimately led to the no-fault insurer's decision to provide its insured with a new home to accommodate his needs. There was no indication in Williams that the insurer would require its insured to purchase the home before it would provide benefits. Id. It would be illogical to deny plaintiff's request for attorney fees when defendant's refusal to pay for reasonable modifications served to prevent plaintiff from receiving the reasonable and necessary accommodations for her disability.

The jury determined that defendant received reasonable proof of the need for modifications. At the time of trial, defendant had not paid for any of plaintiff's home modifications despite its acknowledgement that some modifications were in fact necessary. Even if defendant disagreed with respect to the extent of the modifications, it had a duty to pay for those costs it did not dispute. See Butt v. DAIIE, 129 Mich.App. 211, 220-221, 341 N.W.2d 474 (1983). Thus, defendant's complete refusal to pay for any modifications since December 1997 was unreasonable and ultimately forced plaintiff into litigation.

To find that defendant was not liable for attorney fees, when it was necessary for plaintiff to litigate in order to obtain the necessary home modification benefits, would defeat the purpose of the no-fault act. Access to the court system would be limited to those who had the financial wherewithal to prepay or obligate themselves for modifications or those who could afford to retain the services of an attorney. We award attorney fees in no-fault cases so that insurers promptly pay injured parties for reasonable claims. Univ of Mich. Regents, supra at 739, 650 N.W.2d 129. On the basis of the record presented, we find no clear error in the trial court's determination that the home modifications were overdue and that attorney fees were awardable for defendant's inaction.

VI. No-Fault Interest

Defendant contends that it was similarly exempt from paying no-fault interest on the home modifications. Essentially, defendant argues that any benefits it owes plaintiff for home modifications are not "overdue" under the no-fault act because they have yet to be incurred.

Again, we disagree with defendant's contention that an insured has to become personally indebted in order to receive benefits under the no-fault system. The same principles that we discussed in determining defendant's liability for attorney fees based on the home modification award applies to no-fault interest. "Unlike prejudgment interest, which is intended to compensate a party for the delay in receiving its damages, no-fault interest is intended to penalize an insurer that is dilatory in paying a claim." Attard, supra at 319, 602 N.W.2d 633. Thus, for the same reasons discussed in awarding plaintiff attorney fees for defendant's failure to timely provide reasonable home modifications, we determine that the trial court's decision to award plaintiff no-fault interest on this ground was also proper.

VII. Judgment Interest

We agree, however, with defendant that plaintiff is not entitled to judgment interest on the future home modifications. Under M.C.L. § 600.6013(1):

Interest is allowed on a money judgment recovered in a civil action, as provided in this section. However, for complaints filed on or after October 1, 1986, interest is not allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, "future damages" means that term as defined in section 6301. [Emphasis added.]

According to M.C.L. § 600.6301, future damages are those damages that arise from a personal injury that the jury determines will accrue after the damage findings are made.

We note that defendant does not contest the trial court's award of judgment interest on the architect's fee and we find that this award was proper. We further find that the trial court properly granted judgment interest on the no-fault interest awarded to plaintiff for the architectural services. Moreover, the trial court's award of judgment interest on the attorney fees was also appropriate.

In summary, we find the trial court's award to be equitable and consistent with the no-fault act's goal of promoting judicial economy and equal access to the courts. To deny plaintiff the relief granted in this opinion would merely reward defendant for its failure to timely provide plaintiff her rightful benefits for several years.

We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

JANSEN, J., concurred.

R.J. DANHOF, J., (dissenting).

I respectfully dissent. Expenses for home modification were not overdue because plaintiff has not incurred those expenses and there was a bona fide factual dispute over the necessity of the modifications. I would reverse and remand in part.

The goal of the no-fault act is "to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses." Shavers v. Attorney Gen., 402 Mich. 554, 579, 267 N.W.2d 72 (1978) (emphasis added). Both statutory interest and attorney fees may be awarded only on expenses that are overdue. MCL 500.3142 (interest); MCL 500. 3148(1) (fees). Expenses are not overdue until an insurer receives reasonable proof "of the amount of loss sustained." MCL 500.3142(2) (emphasis added). Although plaintiff need not first pay the expenses out of pocket, or have been billed for the expenses, she must become liable for them; defendant is not obligated to pay for modifications plaintiff may never make. See Shanafelt v. Allstate Ins. Co., 217 Mich.App. 625, 636-638, 552 N.W.2d 671 (1996); Moghis v. Citizens Ins. Co. of America, 187 Mich.App. 245, 247, 466 N.W.2d 290 (1990) ("Defendant is not obligated to pay any amount except upon submission of evidence that services were actually rendered and of the actual cost expended."). This is how an expense is incurred: plaintiff must have a loss before defendant is required to pay it. Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 50, 457 N.W.2d 637 (1990); MCL 500.3110(4).

In this case, even the trial court recognized that plaintiff never became liable for her house modification expenses; it acknowledged that defendant would be responsible for the modification costs only "as the expenses are incurred under the no-fault law." Plaintiff discusses at length the reasonableness of the modifications and how the jury found they were necessary, but can point to no actual loss, an element required by the statutes. Rather, plaintiff asks this Court to hold that an expense is incurred when defendant is presented with a quoted estimate for potential expenses. This is clearly contrary to the statutory language and would open the door to considerable abuse both in terms of unreasonable estimates and estimates for work that is ultimately never performed.

The trial court found that defendant unreasonably delayed in making payment. However, M.C.L. § 500.3148(1) provides:

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.

Because the payments were not overdue, the court erred in considering at all whether fees should be awarded. Furthermore, the scope of inquiry under § 3148 is not whether the insurer ultimately is held responsible for a given expense, but whether its initial refusal to pay the expense was unreasonable. McCarthy v. Auto Club Ins. Ass'n, 208 Mich.App. 97, 103, 527 N.W.2d 524 (1994). If the insurer's refusal or delay in payment is the product of a legitimate question of statutory construction, constitutional law, or a bona fide factual uncertainty, the refusal or delay will not be found unreasonable under M.C.L. § 500.3148(1). Beach v. State Farm Mut. Automobile Ins. Co., 216 Mich.App. 612, 629, 550 N.W.2d 580 (1996).

In this case, there was both a clear question of factual uncertainty and a clear question of statutory construction. The issue of the reasonableness of plaintiff's proposed modifications was a factual matter resolved by the jury. The question of the meaning of "incurred" used in the statutes was not resolved until after the jury trial. Plaintiff argues that rescinding the penalties of fees and interest in this case will permit insurers in the future to stall on payments and force plaintiffs to go to trial; however, this would only be the case where there are legitimate reasons for delay, as identified in Beach. Id. When an insurance company, presented with reasonable bills, unreasonably refuses or delays payment, then the penalties apply.

Plaintiff also argues that requiring injured persons to become liable for expenses before they can recover from insurance companies discriminates against those who cannot afford to pay out of pocket or go into debt. However, this Court is not to question the wisdom of the Legislature but may only carry out its intent as indicated by the plain language of the statute. People v. Morris, 450 Mich. 316, 326, 537 N.W.2d 842 (1995). Moreover, plaintiff need not become liable for the entire project before seeking payment; she can submit claims to defendant as they are incurred.

The majority notes that the parties stipulated $69,300 as a reasonable amount for attorney fees, and defendant does not dispute that the expense for the architect's bill was actually incurred. However, this does not mean that defendant should be penalized for the entire sum on the basis of the one, de minimis expense. MCL 500.3148(1) only entitles plaintiff to attorney fees incurred in conjunction with representation concerning benefits that are overdue. McKelvie v. Auto Club Ins. Ass'n, 459 Mich. 42, 48, 586 N.W.2d 395 (1998). Plaintiff is not entitled to expenses for counsel when those expenses were not incurred for the purpose of obtaining overdue benefits.

I would find the expenses for modification were not overdue, and defendant should not be required to pay attorney fees or interest associated with that part of the litigation. I would remand the case for the parties to litigate what constitutes reasonable attorney fees for the $815.10 architect's bill.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] The figures used in this opinion have been converted from English pound sterling to American dollars, using the conversion rate stipulated by the parties at trial.

[2] The amount for the home modifications includes the 17.5 percent value added tax.

[3] We note that the parties stipulated at trial that $69,300 is a reasonable amount for attorney fees in this case. While defendant claims that the full amount of attorney fees cannot be assessed on its failure to timely reimburse plaintiff solely for the architect's bill of $815, it fails to cite any authority to support this position. See Davenport v. Grosse Pointe Farms Bd. of Zoning Appeals, 210 Mich.App. 400, 405, 534 N.W.2d 143 (1995).