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State Supreme Court majority reduces bench verdict for attendant care; creates new rules

This month the Republican majority on Michigan's Supreme Court overturned a trial judge's decision and reduced an attendant care award he had made to the family of a head-injured man.  In James Douglas v. Allstate Insurance Company, the insurer appealed a bench decision by a Circuit Judge, awarding attendant care to the wife of Mr. Douglas.  Douglas had suffered a severe head injury and over time became uncontrollably impulsive and suicidal.  His doctors ordered attendant care and supervision for his waking hours but Allstate balked.  After the judge ruled in favor of the wife's entitlement to benefits, the Appeals Court affirmed most of the award but ordered part of the case to be reconsidered.  The Supreme Court then took up the case and examined all aspects of the award.

The Republican majority rejected many of Allstate's most aggressive arguments but still eviscerated the award and sent it back to the lower court with new direction about what evidence could be considered.  The Republican majority instructed the lower court that it could not award benefits unless it found evidence that the attendant care was "actually incurred," meaning that the wife anticipated payment and actually provided needed services.  The majority held that because the wife's billings were not contemporaneous with the services provided, her accounting may be less credible, and that while she did not need to have an "arm's length relationship with the patient, she did need to prove that her efforts in attendant care were made with an expectation of payment:  so unsophisticated and less-informed families who just agree to take care of a loved one without knowing that they are entitled to payment may now legitimately be denied compensation.

The majority also ruled that the family member's compensation should be based on what an arm's-length strangere would earn and should not take into account what a commercial provider would pay.   The Court took pains to emphasize services must be for the injured person's "care" and cannot be simply household services.  On the "bright" side--if one can find a bright side to the Republicans' relentless activism on behalf of insurers, the Court did not adopt Allstate's argument that a family member should not be compensated for "monitoring" an unsafe patient if monitoring is medically necessary and caused by a motor vehicle accident injury.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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