YOUNG, C.J.
Under the terms of the no-fault act,
We hold that "allowable expenses" must be "for an injured person's care, recovery, or rehabilitation."
If the fact-finder concludes that a plaintiff incurred allowable expenses in receiving care from a family member, the fact-finder must also determine to what extent any claimed expense is a "reasonable charge[]."
In applying these principles of law to the facts of this case, we hold that the Court of Appeals correctly determined that plaintiff may recover "allowable expenses" to the extent that they encompass services that are reasonably necessary for plaintiff's care when the care is "related to [plaintiff's] injuries."
In 1996, plaintiff, James Douglas, sustained a severe closed-head brain injury when a hit-and-run motorist struck the bicycle he was riding. Plaintiff was hospitalized for approximately one month after the accident and received therapy and rehabilitation after his discharge. Because the driver of the motor vehicle that struck plaintiff could not be identified, plaintiff sought assignment of a first-party insurance provider through the Michigan Assigned Claims Facility.
In 1999, plaintiff began the first of a series of full-time jobs. However, he was unable to hold a job for very long, and he eventually stopped working. During this time, he twice attempted suicide. After the second suicide attempt, a 2005 letter written by plaintiff's psychiatrist indicated that plaintiff "requires further treatment" because he "continues to suffer from ill-effects as a result of his closed-head injury...." In particular, the psychiatrist emphasized that plaintiff suffered from short-term memory problems and impulsivity as a result of the accident and explained that plaintiff "should have the opportunity to obtain the care that will most likely restore him to a good level of functioning." Defendant claims that it did not receive this letter before plaintiff initiated this lawsuit.
The parties proceeded to a bench trial on the claim for attendant care services that Mrs. Douglas allegedly provided. Defendant's claims adjuster testified during plaintiff's case-in-chief as an adverse witness. This witness agreed with plaintiff's counsel that plaintiff "would have needed [attendant care] back when the lawsuit first began" in 2005 and that "it would be appropriate to pay Mrs. Douglas for some of [the] care that she provides... at home[.]" However, on direct examination by defendant's counsel, the claims adjuster testified that there was no evidence that any compensable care had actually been provided to plaintiff.
Katherine Douglas testified that when she was at home, her entire time was spent "babysitting" and "watching James," even while she was performing other household chores. She believed that her presence in the house kept plaintiff from being hospitalized or incarcerated. She also testified about a series of forms, each labeled "AFFIDAVIT OF ATTENDANT CARE SERVICES," all dated June 25, 2007, covering each month between November 2004 and June 2007. These forms totaled up the number of hours during which she claimed to have provided services and outlined the various tasks that she performed, including organizing her family's day-to-day life, cooking meals, undertaking daily chores, maintaining the family's house and yard, ordering and monitoring plaintiff's medications, communicating with health care providers and Social Security Administration officials, calling plaintiff from work to ensure plaintiff's safety, monitoring plaintiff's safety, and cueing or prompting various tasks for plaintiff to undertake. However, she admitted
Dr. Rosenbaum testified that he began treating plaintiff on November 7, 2006, and recommended that Mrs. Douglas provide attendant care for all of plaintiff's waking hours,
Defendant's medical expert, Dr. Charles Seigerman, testified that he conducted a battery of cognitive tests on plaintiff and concluded that two hours of attendant care services a day are needed to help plaintiff organize the logistics of his treatment and ensure that he takes his medicine. Dr. Seigerman also testified that an appropriate hourly rate for these services was "around $10.00 an hour," or "[p]erhaps a little higher," although he acknowledged on cross-examination that he was not an expert on the appropriate rate of compensation for this service.
The circuit court awarded PIP benefits to plaintiff, explaining that he "needs aide care for all of his waking hours." The circuit court calculated that plaintiff was entitled to a total of 67 hours a week of attendant care for the period between May 31, 2004, and November 1, 2007, and 40 hours a week after November 1, 2007.
The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. First, the panel rejected defendant's claim that the circuit court had erred by denying its final two motions for summary disposition. In particular, the panel concluded that Dr. Rosenbaum's affidavit created a question of fact regarding whether attendant care services were "reasonably necessary" for the period before Dr. Rosenbaum began treating plaintiff on November 7, 2006.
This Court granted defendant's application for leave to appeal and ordered the parties to brief the following issues:
This case involves the interpretation of the no-fault act. "Issues of statutory interpretation are questions of law that this Court reviews de novo."
In civil actions tried without a jury, MCR 2.517(A)(1) requires the court to "find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment." We review these findings of fact for clear error,
MCL 500.3105(1) establishes that a personal protection insurance provider is liable under the no-fault act "to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter." Accordingly, MCL 500.3105(1) imposes two threshold causation requirements for PIP benefits:
MCL 500.3107(1) further limits what benefits are compensable as PIP benefits, allowing unlimited lifetime benefits for "allowable expenses" but limiting "ordinary and necessary services" to a three-year period after the accident and to a $20 daily limit:
This Court's decision in Johnson v. Recca clarified that the "ordinary and necessary services" contemplated in subsection (1)(c) — commonly referred to as "replacement services" — constitute a category of expenses distinct from the "allowable expenses" contemplated in subsection (1)(a).
This case requires this Court to consider whether the specific services at issue here were "allowable expenses"
MCL 500.3107(1)(a) defines "allowable expenses" as "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." We have recognized that the plain language of this provision imposes four requirements that a PIP claimant must prove before recovering benefits for allowable expenses: (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.
MCL 500.3107(1)(a) requires that allowable expenses must be "for an injured person's care, recovery, or rehabilitation." As we explained in Griffith v. State Farm Mutual Automobile Insurance Co., "expenses for `recovery' or `rehabilitation' are costs expended in order to bring an insured to a condition of health or ability sufficient to resume his preinjury life," while expenses for "care" "may not restore a person to his preinjury state."
We reaffirm here Griffith's definition of "care" as it relates to the scope of allowable expenses: although services for an insured's care need not restore a person to his preinjury state, the services must be related to the insured's injuries to be considered allowable expenses.
In analyzing this requirement as applied to the particular services claimed in this case, we note that prior panels of the Court of Appeals examined the extent to which a family member's services can be considered allowable expenses under the no-fault act. In Visconti v. Detroit Automobile Inter-Insurance Exchange, the panel analogized no-fault benefits to worker's compensation benefits and ruled that "`[o]rdinary household tasks'" that a family member performs are not allowable expenses, but "`[s]erving meals in bed and bathing, dressing, and escorting a disabled person are not ordinary household tasks'"
A subsequent Court of Appeals panel applied Visconti and allowed the plaintiff to recover no-fault benefits when a family member was "required to serve his meals in bed, bathe him, escort him to the doctor's office, exercise him in conformity with his doctor's instructions, assist in formulating his diet, administer medication, and assist him with speech and associational therapy."
In this case, defendant claims that a judgment of no cause of action should be entered because Mrs. Douglas did not perform any compensable allowable expenses, only replacement services, which are not compensable in this case because of the three-year time limit of MCL 500.3107(1)(c). We disagree with defendant's claim and conclude that defendant is not entitled to relief on this issue.
Defendant is correct that Mrs. Douglas's testimony and attendant care forms indicate that she provided many services that are properly considered replacement services, including daily organization of family life; preparation of family meals; yard, house, and car maintenance; and daily chores. These services are prototypical "ordinary and necessary" services that every Michigan household must undertake.
The circuit court ruled that Mrs. Douglas "is Plaintiff's caretaker and basically spends her free time making sure that Plaintiff is cared for, and does not harm himself as he tried to do in a suicide attempt." This factual finding is not clearly erroneous because it is consistent with Mrs. Douglas's testimony that she was "watching James" even while she was performing household chores by herself. Furthermore, it suggests that the circuit court adopted plaintiff's argument that Mrs. Douglas's supervision constituted attendant care services.
The Court of Appeals rejected defendant's claim that Mrs. Douglas only provided
MCL 500.3107(1)(a) also requires allowable expenses to be "reasonably necessary." In Krohn v. Home-Owners Insurance Co., this Court clarified that this requirement "must be assessed by using an objective standard."
Before the circuit court's ruling on defendant's third motion for summary disposition, plaintiff offered the affidavit of Dr. Rosenbaum, who explained that plaintiff "is in need of [attendant] care during all waking hours" and that Mrs. Douglas had provided that care "since [the time of] the motor vehicle accident." The circuit court based its denial of defendant's motion in part on Dr. Rosenbaum's affidavit. In reviewing that decision, the Court of Appeals determined that "the affiant relied on the statements of the parties to determine what activity plaintiff's wife engaged in during the subject period and subsequently evaluated those activities and found them to meet the definition of attendant care."
Moreover, we conclude that it was not clear error for the circuit court as fact-finder to conclude that attendant care
MCL 500.3107(1)(a) also limits allowable expenses to "charges incurred." That is, even if a claimant can show that services were for his care and were reasonably necessary, an insurer "is not obliged to pay any amount except upon submission of evidence that services were actually rendered and of the actual cost expended."
This Court has defined "incur" as it appears in MCL 500.3107(1)(a) as "`[t]o become liable or subject to, [especially] because of one's own actions.'"
The fact that charges have been incurred can be shown "by various means," including "a contract for products and services" or "a paid bill."
This evidentiary requirement is most easily satisfied when an insured or a caregiver submits itemized statements, bills, contracts, or logs listing the nature of services provided with sufficient detail for the insurer to determine whether they are compensable.
The problem of a caregiver's failure to provide contemporaneous documentary evidence of allowable expenses is aptly illustrated in this case, in which Mrs. Douglas submitted documents constructed in one day as proof of services rendered over the course of approximately three years. The lack of contemporaneous
We underscore the importance of the proofs necessary to establish entitlement to benefits. The circuit court issued a judgment in favor of plaintiff without finding that the expenses were actually incurred given that its determination of the number of hours to award plaintiff had no discernible basis in the evidence presented at trial and did not examine whether Mrs. Douglas had the expectation of payment for her services. While it awarded plaintiff benefits for 40 hours a week of attendant care services for the period beginning November 1, 2007, in accord with Dr. Rosenbaum's prescription, there is no basis for its findings that Mrs. Douglas actually provided 40 hours of care each week during that period. Indeed, because she was unavailable to provide services during her working hours, there is no basis for compensating her for any hours that she spent working outside the home.
Once a fact-finder has concluded that a plaintiff incurred allowable expenses in receiving care from a family member, the fact-finder must determine whether the charge is "reasonable."
Although this Court has not ruled on the issue, the Court of Appeals in Bonkowski v. Allstate Insurance Co. stated that a commercial agency's rate for attendant care services is irrelevant to the fact-finder's determination of what constitutes a reasonable rate for a family member's provision of those services. Then Judge ZAHRA, writing for the court, noted 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."
The compensation actually paid to caregivers who provide similar services is necessarily relevant to the fact-finder's determination of a reasonable charge for a family member's provision of these services because it helps the fact-finder to determine what the caregivers could receive on the open market. While a commercial agency's fee incorporates this relevant piece of data — the compensation it pays to its caregivers — it also incorporates additional costs into its charge that family members who provide services do not incur, particularly the overhead costs inherent in the agency's provision of services. Thus, the total agency rate is too attenuated from the particular component of the agency rate that the fact-finder must determine in the instant case — "the compensation provided to the person providing the services...."
While we do not adopt the reasoning in Bonkowski in its entirety, we agree with Bonkowski that the fact-finder's focus must be on an individual's compensation. Accordingly, we hold that a fact-finder may base the hourly rate for a family member's provision of attendant care services on what health care agencies compensate their employees, but what health care agencies charge their patients is too attenuated from the appropriate hourly rate for a family member's services to be controlling.
This case does not reflect such circumstances. Rather, there is undisputed testimony that Mrs. Douglas actually received $10 an hour in providing attendant care services to plaintiff during the time she served as Dr. Rosenbaum's employee. Because this figure is the rate she actually received for providing attendant care services, it is highly probative of what constitutes a reasonable charge for her services. Therefore, we agree with defendant that the circuit court clearly erred by ruling that plaintiff is entitled to a $40 hourly rate for Mrs. Douglas's attendant care services. The only evidentiary basis for that figure is the rate that commercial agencies charge for attendant care services, and that rate is far too attenuated from an individual caregiver's actual rate of compensation to serve as the sole basis for the award of benefits in these circumstances.
Today, we reaffirm that MCL 500.3107(1)(a) imposes four requirements that an insured must prove before recovering PIP benefits for allowable expenses: (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.
Defendant is not entitled to relief on its claim that Mrs. Douglas provided only replacement services, not allowable expenses, because the circuit court did not clearly err by ruling that Mrs. Douglas is plaintiff's caretaker. Defendant is also not entitled to relief on its claim that plaintiff's attendant care was not reasonably necessary in the absence of a specific prescription for attendant care services because the testimony of Dr. Rosenbaum and defendant's claims adjuster provided a factual basis for the reasonable necessity of those services at all times relevant in this case.
We affirm the Court of Appeals' decision to remand this case for further proceedings, but we hold that the consideration on remand must encompass the entire period
Affirmed in part, reversed in part, award of attendant care benefits vacated and case remanded for further proceedings consistent with this opinion.
MARKMAN, and MARY BETH KELLY, and ZAHRA, JJ., concurred with YOUNG, C.J.
CAVANAGH, J. (dissenting).
I dissent from the majority's erroneous interpretation of the phrase "charges incurred" in MCL 500.3107(1)(a) and the resulting creation of evidentiary requirements that lack any basis in the statutory language. Likewise, I dissent from the majority's misguided limitation on the scope of evidence that may be considered when determining whether a charge is "reasonable" under MCL 500.3107(1)(a).
Although the rules of statutory interpretation are well established, a brief review is warranted, given the majority's failure to adhere to these principles. This Court's primary goal is to "discern and give effect to the intent of the Legislature." Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). "The words of a statute provide the most reliable evidence of its intent...." Id. (quotation marks and citation omitted). When the language of a statute is unambiguous, "the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written." Id. Accordingly, "[n]o further judicial construction is required or permitted." Id.
Under MCL 500.3107(1)(a), personal protection insurance (PIP) benefits include "allowable expenses." The statute goes on to explain that an "allowable expense" consists of, among other things, "charges incurred" for certain qualifying products or services. From the words "charges incurred," the majority mysteriously divines new evidentiary requirements that an insured must satisfy in order to obtain PIP benefits. Specifically, the majority determines that, in order to show that charges were incurred, an insured must establish (1) that the caregiver expected compensation for the services rendered, see ante at 490, and (2) that the caregiver's expectation of payment arose "at the time [the
I disagree with the majority's conclusion that MCL 500.3107(1)(a) requires a showing that the caregiver expected compensation. Rather, I continue to believe that the caregiver's expectation of payment is irrelevant because the obligation to pay "charges incurred" under MCL 500.3107(1)(a) lies with the insurer rather than the insured. Burris v. Allstate Ins. Co., 480 Mich. 1081, 1088-1089, 745 N.W.2d 101 (2008) (WEAVER, J., dissenting). I also disagree with the majority's reliance on the definition of "incur" that was adopted in Proudfoot v. State Farm Mut. Ins. Co., 469 Mich. 476, 673 N.W.2d 739 (2003), because, as Justice WEAVER explained in her Burris dissent, Proudfoot's definition of "incur" was limited to the facts of that case, in which the plaintiff sought advance payment for future expenses. Burris, 480 Mich. at 1088, 745 N.W.2d 101 (WEAVER, J., dissenting). Accordingly, in Proudfoot, no one had incurred an expense because no service had been provided, and an insurer "is not obligated to pay any amount except upon submission of evidence that services were actually rendered...." Manley v. Detroit Auto. Inter-Ins. Exch., 425 Mich. 140, 159, 388 N.W.2d 216 (1986). In this case, however, plaintiff seeks benefits for past expenses resulting from services that have already been provided. Accordingly, as long as the services were actually rendered and reasonably necessary and the amount of the charges was reasonable, defendant, as the insurer, has incurred the charges because of its statutory obligation to provide PIP benefits under MCL 500.3107(1). Unlike the majority's interpretation, Justice WEAVER'S approach in Burris is consistent with the Legislature's intent that the no-fault act be construed liberally in favor of the insured. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 28, 528 N.W.2d 681 (1995).
In addition, I disagree with the majority's effort to further hamstring insureds' ability to recover PIP benefits to which they are entitled by imposing burdensome and statutorily unsupported preferences for specific documentary evidence. See ante at 489 (stating that the "best way of proving" that a caregiver expected payment is a "formal bill" or "memorialized statement").
Although the majority may be correct that certain types of evidence may be more persuasive under the specific circumstances of a particular case, by discussing the persuasiveness of various forms of evidence in absolutes, the majority invades the province of the fact-finder. See People v. Wolfe, 440 Mich. 508, 514, 489 N.W.2d 748 (1992) ("[A]ppellate courts are not juries, and ... they must not interfere with the jury's role[.]"). Indeed, this error in the majority's approach is exposed in its discussion of the specific facts of this case, particularly the majority's statement that failure to provide certain documents "implicates [the caregiver's] credibility...." Ante at 490. However, contrary to the majority's willingness to weigh in on witness credibility, this Court has frequently stated that appellate courts
In summary, I disagree with the majority's conclusion that an insured must prove that a family caregiver expected compensation in order to prove that charges were incurred for purposes of MCL 500.3107(1)(a). In my view, the insurer incurs the charge by way of its statutory obligation to provide PIP benefits under MCL 500.3107(1)(a) when the insured proves that the services were reasonably necessary and actually rendered and that the amount of the charge is reasonable. Furthermore, accepting arguendo the majority's declaration that an insured must prove that his or her caregiver expected compensation, I disagree with the majority's implication that certain forms of evidence will always be the "best
The majority creates another unsupported and previously nonexistent requirement when it states that a caregiver must expect compensation "at the time the services were rendered." Ante at 489; see, also, ante at 490 (stating that the "circuit court failed to make a finding regarding ... whether Mrs. Douglas expected compensation or reimbursement at the time she provided the services") (emphasis added). Again, the majority fails to identify any support for this new timing requirement in either the caselaw or the statutory language of MCL 500.3107(1)(a). The reason for the majority's failure to do so is obvious: there simply is no support for the majority's judicially created requirement. This is particularly notable given that members of the majority have often railed against extratextual requirements. See, e.g., People v. Schaefer, 473 Mich. 418, 432, 703 N.W.2d 774 (2005).
Although the lack of support in the statutory language is reason enough to reject the majority's analysis, the practical implications of the majority's burdensome new requirement is also worth consideration. Specifically, by requiring that a family caregiver expect compensation, not only does the majority punish a family member who nobly acts to provide care to a loved one in a time of need, the majority also rewards the insurer, rather than the
Additionally, by requiring that the caregiver expect compensation at the time the services are provided, the majority fails to recognize the reality of situations in which attendant-care services are needed. Specifically, claims for PIP benefits arise out of automobile-related accidents, which were typically sudden, unexpected events. Accordingly, family members may unexpectedly be called upon to immediately provide care to a loved one. Given the nature of most families, I believe that in the vast majority of situations, the family member would be willing to provide the care, at least initially, without any contemporaneous expectation of compensation from anyone. Thus, I believe that it may be fairly common that the caregiver is initially not even aware of the possibility of compensation and the process that must be completed in order to recover that compensation. Indeed, not every citizen is an attorney well versed in the intricacies of the no-fault act. As a result, at the time the services were provided, the caregiver would have no expectation that anyone will provide compensation. Yet under the majority's analysis, if a family member did not expect compensation at the time the services were provided, despite the sudden and chaotic circumstances of the situation, he or she is not entitled to retroactively expect compensation for services provided in the past after discovering that compensation is a realistic possibility. This approach rewards the insurer by allowing it to avoid providing PIP benefits that it would otherwise be obligated to provide under MCL 500.3107(1)(a) merely because the caregiver does not immediately demand compensation.
Under MCL 500.3107(1)(a), PIP benefits are payable for "allowable expenses" as long as the charge is "reasonable."
Although the majority concludes that agency rates are both relevant and admissible in determining a "reasonable charge" under MCL 500.3107(1)(a), see ante at 493 n. 79 (stating that "this case is not about the admissibility of the agency rates" because agency rates "may in fact be helpful to the fact-finder as a point of comparison in determining a reasonable charge for an individual's provision of attendant care services"); and ante at 492 (stating that "an agency rate might bear some relation to an individual's rate"), the majority nevertheless relies exclusively on the Court of Appeals' opinion in Bonkowski v. Allstate Ins. Co., 281 Mich.App. 154, 165, 761 N.W.2d 784 (2008), which expressly stated that agency rates are "not relevant." I disagree with the majority's reliance on Bonkowski for several reasons.
To begin with, Bonkowski readily admitted that its entire discussion of the rate of compensation was dictum, stating that issue was not "squarely before" the Court. Id. at 164, 761 N.W.2d 784. Moreover, without justification, Bonkowski admittedly ignored caselaw that found agency rates relevant to determining the proper rate of compensation for a family member's provision of care. Id. (acknowledging that the Court of Appeals had "previously embraced the notion that `comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed [by family members]'"), quoting Manley v. Detroit Auto. Inter-Ins. Exch., 127 Mich.App. 444, 455, 339 N.W.2d 205 (1983) (alteration in original). Further, Bonkowski cited no authority in support of its preferred approach to determining the proper rate of compensation for attendant care provided by unlicensed family members.
Most importantly, however, Bonkowski is poorly reasoned and, as a result, unpersuasive. Particularly unpersuasive is the notion that only the hourly rate paid to an attendant-care-services provider by an agency is relevant. Indeed, even the majority rejects this perspective. See ante at 493 n. 79 (acknowledging that agency rates "may in fact be helpful to the fact-finder").
Hardrick, 294 Mich.App. at 678-679, 819 N.W.2d 28, first noted that the question whether expenses are reasonable is generally a question for the fact-finder, as this Court stated in Nasser, 435 Mich. at 55, 457 N.W.2d 637. Second, Hardrick agreed with Bonkowski that "the rates charged by an agency to provide attendant-care services are not dispositive of the reasonable rate chargeable by a relative caregiver," but the opinion also concluded that "this does not detract from the relevance of such evidence." Hardrick, 294 Mich.App. at 666, 819 N.W.2d 28. Accordingly, I find persuasive Hardrick's decision to review the issue through the lens of the admissibility of evidence. Hardrick explained that evidence is "relevant" and thus "material" when it helps prove a proposition that is a "material fact at issue." Id. at 667-668, 819 N.W.2d 28. Because the "material fact at issue" is the reasonable rate for attendant-care services for an insured, and insurers routinely pay agency rates for attendant-care services, Hardrick concluded that agency rates are relevant to determining the proper compensation for relative caregivers. Hardrick emphasized that the issue "is not whether an agency rate is reasonable per se under the circumstances, but whether evidence of an agency rate may assist a jury in determining a reasonable charge for family-provided attendant-care services." Id. at 669, 819 N.W.2d 28. Accordingly, because an agency rate commonly paid by insurers "`throws some light, however faint,' on the reasonableness of a charge for attendant-care services," it is admissible. Id., citing Beaubien v. Cicotte, 12 Mich. 459, 484 (1864).
Moreover, Hardrick explained that the fact-finder "may ultimately decide that an agency rate carries less weight than the rate charged by an independent contractor, or no weight at all. But the fact that different charges for the same service exist in the marketplace hardly renders one charge irrelevant as a matter of law." Hardrick, 294 Mich.App. at 669, 819 N.W.2d 28. Indeed, the insurer would be free to introduce evidence showing the actual pay received by professional attendant-care-services providers and the overhead costs incurred by agencies that provide the care along with any other relevant evidence. In fact, in this case, defendant was permitted to counter plaintiff's evidence of the agency rate paid by Dr. Rosenbaum's company by showing that Mrs. Douglas was paid $10 an hour and with testimony from both defendant's medical expert and its claims adjuster. This is the critical error in the majority's reasoning: it fails to recognize that evidence of agency rates is only one of the various types of evidence that the fact-finder may consider in determining what constitutes a "reasonable charge," and the decision of which evidence is most relevant should be left to the fact-finder. Accordingly, I disagree with the majority's decision to opine regarding the weight that the fact-finder should give agency rates relative to other types of evidence
Indeed, by adopting Bonkowski's emphasis on an individual caregiver's hourly rate, the majority's approach ignores other relevant considerations. For example, the family member might be forced to abandon a more lucrative career or move a great distance in order to be able to provide long hours of care to a loved one over an extended period. Additionally, the majority's approach marginalizes the fact that a family member who provides attendant-care services may be left without an array of benefits that a professional attendant-care-services provider would ordinarily receive. For example, a professional attendant-care-services provider who is employed by an agency might receive health insurance benefits, vacation and sick leave, and retirement benefits, among other things. None of these benefits are represented in the professional attendant-care-services provider's hourly wage.
Furthermore, by implying that certain evidence is deserving of greater consideration when determining a "reasonable charge," the majority risks making the possibility of family-provided attendant care unattainable for a large number of no-fault insureds because their family members simply cannot afford to suffer the financial ramifications of that decision. This result not only potentially places families in the unenviable position of being forced to institutionalize a family member in order to make a fair living, but it also runs counter to one of the goals of the no-fault act: to keep no-fault insurance affordable. See Shavers v. Attorney General, 402 Mich. 554, 627-628, 267 N.W.2d 72 (1978). Specifically, if a family member cannot afford to provide attendant care at the lower rate that the majority opinion essentially mandates, the insured may be forced into an institution, which will potentially increase the cost of attendant care and, therefore, the amount of PIP benefits that insurers must pay.
Finally, although the majority is correct that this Court has not previously considered this exact issue, the Court of Appeals' approach in Hardrick is more consistent with this Court's opinion in Manley, 425 Mich. at 154, 388 N.W.2d 216, which considered the "reasonable charge" aspect of MCL 500.3107(1)(a) and held that evidence of a daily charge by facilities for "room and board" is admissible to determine a parent's costs for room and board of a disabled child in the parent-caregiver's home. See, also, Manley, 425 Mich. at 169, 388 N.W.2d 216 (BOYLE, J., concurring in part and dissenting in part) (stating that "comparison to rates charged by institutions provides a valid method for determining
Applying Hardrick's approach to this case, I would affirm the trial court's conclusion that $40 an hour is a "reasonable charge." The majority claims that the trial court's finding is "unjustified on this record"; however, the majority fails to consider a variety of factors that were before the fact-finder in this case. Specifically, the trial court heard testimony from which it could conclude that Mrs. Douglas would need to quit her job outside the home in order to provide plaintiff with the attendant care his doctor prescribed. Moreover, the trial court heard testimony regarding both the agency rate and individual rate of pay for the type of care that Mrs. Douglas was providing. Notably, defendant could have submitted additional evidence in support of its claim for a lower hourly rate, but it chose not to do so. Thus, while the majority is correct that it is "undisputed" that "Mrs. Douglas actually received $10 an hour in providing attendant care services to plaintiff," ante at 493, it is also undisputed that agencies receive a higher rate of compensation for the same services, and it is also undisputed that Mrs. Douglas could not provide the attendant care that plaintiff needed while maintaining her employment outside the home. Thus, the rate paid to an individual caregiver fails to encompass all the ramifications of Mrs. Douglas's provision of attendant care to plaintiff. Accordingly, because "[t]he trier of facts is permitted to draw natural inferences from all the evidence and testimony," Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 120-121, 274 N.W.2d 411 (1979), I cannot agree with the majority's conclusion that the trial court in this case "uncritically adopted" the agency rates or that agency rates were "the sole basis for the award of benefits in these circumstances." Ante at 493. As a result, I am not "left with the definite and firm conviction that a mistake has been made," Detroit v. Ambassador Bridge Co., 481 Mich. 29, 35, 748 N.W.2d 221 (2008) (quotation marks and citation omitted), and, thus, in my view, the trial court did not clearly err on this issue.
In summary, I dissent from the majority's effort to extend the erroneous interpretation of MCL 500.3107 from Griffith. Specifically, I disagree with the majority's judicially created requirements regarding what is necessary to show that a charge was incurred because those requirements are unsupported by the statutory language at issue and, thus, contrary to the Legislature's intent with regard to MCL 500.3107(1)(a). Moreover, the majority's decision to rely, at least in part, on the reasoning from Bonkowski, 281 Mich.App. 154, 761 N.W.2d 784, is ill conceived because Bonkowski is poorly reasoned, particularly in comparison to the persuasive analysis in Hardrick, 294 Mich.App. 651, 819 N.W.2d 28. Furthermore, Bonkowski is contrary to this Court's opinion in Manley, 425 Mich. 140, 388 N.W.2d 216. Accordingly, I dissent.
MARILYN KELLY and HATHAWAY, JJ., concurred with CAVANAGH, J.