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Family-provided no fault attendant care is analyzed thoroughly

When William Hardrick was struck by a car in 2007, he suffered a severe head injury.  He was eventually allowed to live at home, however, his physicians ordered that he receive 24-hour attendant care "for supervision and safety."  His parents provided this care and his auto insurer, the Auto Club, paid the parents $10.25 per hour.  The parents argued, however, that the care they were required to provide included specialized skills and administrative support which justified a higher hourly rate.  AAA disagreed and the matter went to litigation.

Prior to trial, AAA was sanctioned for failing to provide proper discovery to the plaintiff family.  Finding that the family was prejudiced by AAA's continuing, negligent failure to respond, the judge entered an order that denied AAA the right to offer any witnesses at trial.  It was limited to cross-examining the family's witnesses.

At trial, the judge also refused AAA's requests for two alternative supplemental jury instructions, imposed a boundary of 25-45 dollars per hour for attendant care services, and rejected AAA's argument that the jury should not hear testimony about the cost of hiring a home health care agency to provide the same services. The jury awarded services at $28.00 per hour and AAA appealed.  Although it argued that the family had failed to prove that they actually provided the services, the Court of Appeals repudiated this appeal argument immediately, noting that AAA's counsel had twice stipulated on the record that the only issue for trial was the proper hourly wage rate.

Nevertheless, the appellate court did reverse the lower court's holding precluding AAA from calling witnesses.  It deemed this sanction too harsh under the circumstances, particularly since the prejudice resulting to the family was substantially diminished when their family later sought and obtained a six-month delay in trial and both parties agreed to participate in discovery after the court-imposed deadline.  The appellate judges concluded that the court should have prohibited the proffer of any evidence that was not properly disclosed.

The Court also rejected both parties' arguments attempting to limit the evidence regarding calculation of a proper payment rate.  It noted that under several analogous rulings, Michigan courts have looked to the "market rate" for similar charges, in assessing damages.  As a result, it was reasonable to admit evidence of the rate charged by agencies and not reasonable to limit the proofs to the wages that a family member or hired employee might earn.  By the same token, the Court agreed with the second jury instruction proposed by the Auto Club:  this alternative instruction allowed for the consideration of a broad range of evidence regarding the proper and customary "charge," including administrative costs, if the jurors found that the family had incurred costs or duties of a similar nature.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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