Smith v. State Farm Mutual Automobile Insurance Company

Filing 23

MEMORANDUM OPINION and ORDER Granting in part and Denying in part 16 MOTION for Partial Summary Judgment Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PAUL SMITH,
Plaintiff,
Case No. 12-12428
Honorable Laurie J. Michelson
Magistrate Judge David R. Grand

v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [16]
Plaintiff Paul Smith was injured in a 2011 motorcycle accident. From
approximately February 21, 2012, through October 5, 2012, Amira Medical Staffing,
through licensed practical nurse Madonna Messing and certified nursing assistant Robin
Foster, provided Plaintiff with “skilled nursing” and “in-home care” services. As part of
this lawsuit for no-fault benefits, Plaintiff seeks reimbursement from Defendant State
Farm Automobile Insurance Company for these services. State Farm “concedes that a
question of fact exists with regard to the portion of the Amira bill pertaining to any
skilled nursing services provided by Madonna Messing, LPN,” (Dkt. 18 at 1), but seeks
partial summary judgment with respect to the services provided by Foster. Defendant
contends that the care provided by Foster constituted replacement services rather than
allowable expenses under the Michigan No-Fault Act, Mich. Comp. Laws § 500.3107(1),
and that Defendant already paid the maximum statutory rate for replacement services.

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(Dkt. 16.) Plaintiff disagrees, arguing that there are genuine issues of material fact
regarding the nature of the services provided by Foster. (Dkt. 17.)
The Court finds that some tasks provided by Foster—meal preparation; yard,
house, and car maintenance; other daily household chores; and transportation not directly
related to medical treatment—are replacement services as a matter of law. But the Court
finds that other tasks—personal care, administration of medication, and transportation
directly related to medical treatment—could be allowable expenses. Therefore, the Court
GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Partial Summary
Judgment.
I. BACKGROUND
A. Facts
The following facts are in large part undisputed. To the extent there is a dispute, both
sides’ views are represented.
On August, 27, 2011, Plaintiff was operating a motorcycle that collided with another
motor vehicle, causing Plaintiff serious injuries. (Dkt. 1, Compl. ¶ 9; Dkt. 16, Def.’s Mot.
for Part. Summ. J., Ex. A, Police Report at 2.) On February 21, 2012, Robin Foster, a
certified nursing assistant employed by Amira Medical Staffing (“Amira”), began coming
to Plaintiff’s home to provide in-home care. (Def.’s Mot. for Part. Summ. J. at 6; Dkt. 17,
Pl.’s Resp. to Def.’s Mot. for Part. Summ. J. at 5.)
Foster completed a “Weekly Home Health Aide Note” each week that described the
services she performed. (See Pl.’s Resp. to Def.’s Mot. for Part. Summ. J., Ex. B.
[hereinafter Weekly Notes].) The services included routine housekeeping such as
preparing meals, laundering clothes, making the bed, and light housekeeping. (Id.) Foster

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testified that her job was to “help [Plaintiff] if he needed help with dressing, light
housekeeping, his appointments if he needed any, to run errands, to do his laundry if he
needed [it] done . . . and prepare meals for over the weekend . . . [and prepare] his
lunches. His breakfast.” (Def.’s Mot. for Part. Summ. J., Ex. E, Foster Dep. 37
[hereinafter Foster Dep.].) She also explained how she washed dishes, took the dog out,
organized the house, and “straightened up.” (See id. at 41, 43, 46, 47.)
Foster described occasionally driving Plaintiff to his medical appointments and
running errands as part of her routine. (See id. at 37.) She drove Plaintiff to his medical
appointments in Caro, where he visited with a psychologist, to physical therapy
appointments in Cass City and Bad Axe, and to the rehabilitation gym in Bad Axe. (See
Weekly Notes at Pg ID 55, 70, 86.) She also drove him to non-medical locations
including the grocery store, the bank, the post office, the laundromat, Family Dollar, SelfServe Lumber, Walmart, City Hall, the Secretary of State, and the veterinarian. (Id.)
According to Foster, she did not order Plaintiff’s medications or distribute them into
his “med box,” a box with an alarm designed to organize Plaintiff’s medications and
remind him when to take them. (Foster Dep. at 42.) She would, however, take the med
box with her and the Plaintiff if they were to be away when a medication needed to be
taken, and when the alarm sounded she would take the medication to him or Plaintiff
would retrieve the medication himself. (Id. at 42, 64.)
In her Weekly Notes Foster wrote “self” next to some activities to indicate that she
did not assist Plaintiff. (Id. at 40.) But Foster said that due to oversight, she would
sometimes forget to write “self” when there were things he could do himself. (Id. at 79.)
Foster clarified that Plaintiff was capable of doing the following on his own: dressing,

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grooming, peri care, shampooing, skin care, nail care, and brushing his teeth. (Id. at 56,
62.) Plaintiff testified that initially, Foster would shower him and then later just help him
get into the shower, until the grab bars were installed in the bath, at which point he was
able to get in on his own. (Def.’s Mot. for Part. Summ. J., Ex. D, Smith Dep. at 110–11.)
Plaintiff acknowledged, however, that he was confused about the timeline of events and
was unsure whether the grab bars were installed before or after Amira started staffing his
home. (Id. at 111–12.) According to Foster, the grab bars were already installed in the
bathroom when she first arrived. (Foster Dep. at 32.) She testified that she washed
Plaintiff’s back in the shower “maybe twice” before he switched to a brush, at which
point she no longer took part in his shower routine apart from her continued presence in
the home in case there was an incident. (Id. at 57, 59.)
Foster did not describe or note any involvement in Plaintiff’s rehabilitation exercises.
(See id. at 48.)
Plaintiff claims Amira billed over $47,000 in charges for all care provided, of which
approximately $36,000 pertains to the services provided by Foster. (Dkt. 18, Def.’s Reply
to Pl.’s Resp. to Def.’s Mot. for Part. Summ. J. at 1.)
B. Procedural History
On August 30, 2013, Defendant filed a Motion for Partial Summary Judgment
arguing that “[b]ased upon the testimony of Plaintiff and Ms. Foster, it is clear that the
services rendered were actually replacement services, rather than attendant care
expenses” and that State Farm had already paid the maximum statutory rate for these
replacement services. (Def’s. Mot. for Part. Summ. J. at 7, 9.) Plaintiff filed a response on
September 20, 2013. (Pl.’s Resp. to Def.’s Mot. for Part. Summ. J. at 8.) Plaintiff argues

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that there exists a genuine issue of material fact with regard to the type of service
provided by Amira Medical Staffing to Plaintiff. (Id.) Namely, Plaintiff describes the
skilled nursing services provided by Madonna Messing, LPN, went unmentioned in the
Defendant’s original Motion for Partial Summary Judgment. (Id. at 4.) Plaintiff argues
that these services, which consisted of managing medication and pain levels, qualify as
allowable expenses. (Id. at 8.) On September 27, 2013, Defendant filed a reply,
conceding that a question of fact exists with regard to the portion of the Amira bill
pertaining to any skilled nursing services provided by Messing. (Def.’s Reply to Pl.’s
Resp. to Def.’s Mot. for Part. Summ. J. at 1.) Defendant clarifies that its Motion pertains
to Foster only. (Id. at 2.) Defendant argues that an “overwhelming majority” of the
services rendered by Foster to Plaintiff were replacement services, rather than any type of
allowable expense, and therefore Plaintiff is not entitled to any additional reimbursement
for these claims. (Id. at 4.)
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is material only if it might affect the outcome of the case
under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
On a motion for summary judgment, the court must view the evidence, and any
reasonable inferences drawn from the evidence, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citations omitted); Redding v. St. Eward, 241 F.3d 530, 531 (6th Cir. 2001).

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The moving party may discharge its initial summary judgment burden by
“pointing out to the district court . . . that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the
moving party does so, the party opposing the motion “must come forward with specific
facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587. The
Court must determine whether the evidence presents a sufficient factual disagreement to
require submission of the challenged claims to a jury, or whether the evidence is so onesided that the moving party must prevail as a matter of law. Anderson, 477 U.S. at 252
(“The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.”).
III. ANALYSIS
Plaintiff argues that Amira’s bill for Foster’s services from February 21, 2012,
through October 5, 2012, constitutes an allowable expense under the No-Fault Act. (Pl.’s
Resp. to Def.’s Mot. for Part. Summ. J. at 8, 10.) Defendant argues that the services
provided by Foster are mainly household replacement services and that those services, as
well as others provided, were not reasonably necessary for the care, recovery, or
rehabilitation of the Plaintiff. (Def.’s Mot. for Part. Summ. J. at 7, 9.)
A. Michigan’s No-Fault Law
Under the No-Fault Act, a personal protection insurance provider is required “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.”
Mich. Comp. Laws § 500.3105(1). These benefits can be divided into the categories

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“allowable expenses” and “replacement services.” Id. The parties here differ as to which
category Foster’s services fall into. Allowable expenses consist of “all reasonable charges
incurred for reasonably necessary products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.” Mich. Comp. Laws § 500.3107(1)(a). But as
the Michigan Supreme Court clarified in Douglas v. Allstate Insurance Company,
allowable expenses cannot be for “ordinary and necessary services” because ordinary and
necessary services are not “for an injured person’s care, recovery, or rehabilitation.” 492
Mich. 241, 262 (2012). The Douglas court defined allowable expenses as a benefit that is
distinct from replacement services under § 500.3107(1)(c). Id. (holding that those who
provided replacement services should not be compensated as if they provided allowable
expenses).
Replacement services as defined in § 500.3107(1)(c) consist of “expenses not
exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary
services in lieu of those that, if he or she had not been injured, an injured person would
have performed during the first 3 years after the date of the accident, not for income but
for the benefit of himself or herself or of his or her dependent.” Even if the replacement
service is necessitated by the injury, it is not for the care, recovery, or rehabilitation of the
injured and therefore it does not qualify as an allowable expense. See Douglas, 492 Mich.
at 263.
In Douglas, the plaintiff sustained a severe brain injury and received aide care from
his wife. Her services included: “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, and communicating with health care providers.” Id. at

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252. The Michigan Supreme Court found the services that involved “daily organization
of family life; preparation of family meals; yard, house, and car maintenance; and daily
chores” were replacement services. Id. at 262. The court further defined replacement
services as prototypical, ordinary and necessary services that are performed in every
household. Id. at 262–63. Because these services are not done specifically for the injured
person’s care, they are not considered allowable expenses. Id at 263. Nevertheless, the
Douglas court ruled that Mrs. Douglas’ performance of some replacement services did
not preclude her recovery for the allowable expenses. Id. The court clarified that
“allowable expenses can include services that the injured person might have performed
before he or she was injured as long as those services are not the type of ordinary tasks
that a family member might perform for the benefit of the household as a whole.” Id. at
261. The Douglas court favorably cited Visconti v. Detroit Automobile Inter-Insurance
Exchange, 90 Mich. App. 477 (Mich. Ct. App. 1979), and Van Marter v. American
Fidelity Fire Insurance Co., 114 Mich. App. 171 (Mich. Ct. App. 1982), which described
allowable expenses as entailing services such as aiding the injured person with their
personal care, which includes bathing and dressing, as well as aiding them in their
rehabilitation exercises, transporting them to the doctor, and administering medication.
Id. Consequently, the Douglas court considered some of Mrs. Douglas’ services to be
allowable expenses, such as her involvement in the transportation to and communication
with medical providers and her management of plaintiff’s medication. Id at 261, 263.
The Michigan Court of Appeals provided further guidance on transportation expenses
in ZCD Transportation, Inc. v. State Farm Mutual Automobile Insurance Co., 299 Mich.
App. 336 (Mich. Ct. App. 2012). There, a transportation provider filed an action to

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recover insurance benefits under Michigan’s No-Fault Act for the transportation costs of
driving the injured motorist to medical appointments and non-medical-related personal
trips. See id. The court found that although transportation to a doctor may qualify as an
allowable expense, transportation expenses unrelated to medical treatment do not. Id. at
342. Non-medical transportation services are replacement services because this type of
driving occurred before the injury, and but for that injury, the plaintiff could have driven
himself. Id.
Plaintiff asserts that Foster’s services qualify as fully covered “care” by relying on the
broad definition of the word “care” used by the Michigan Court of Appeals in In Re
Carroll, 300 Mich. App. 152, 157 (Mich. Ct. App. 2013). There, the court first concluded
that a conservator’s fee is always compensable under the label of allowable expense
when the injured person’s need for a conservator is related to an automobile accident. Id.
But the Michigan Supreme Court vacated this judgment and asked the Court of Appeals
to again address the issue in light of its decisions in Johnson v. Recca, 492 Mich. 169
(2012), and Douglas. Id. at 156.
On remand, the Court of Appeals relied on Griffith v. State Farm Mutual Automobile
Insurance Company, in which the Michigan Supreme Court explained that the word
“care” must be given a more limited meaning so as not to render meaningless the words
that follow “care”—“recovery” and “rehabilitation.” 472 Mich. 521, 533–34 (2005). The
Griffith court found that the Michigan legislature intended to limit the scope of the term
“care” to expenses for services that are rendered necessary by the injury sustained in the
motor vehicle accident. Id. at 535. The court further concluded that the term “care”

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referred to attention and service for the injuries that were causally related to an
automobile accident. Id. at 531.
Using Griffith’s narrowed definition of “care” in relation to the scope of allowable
expenses, the In Re Carroll court found the performance of household management
constituted replacement services. In Re Carroll, 300 Mich. App. at 173.
B. Application
Defendant requests summary judgment as to all of Foster’s services, arguing that the
overwhelming majority of services provided by Foster do not fall into the category of
allowable expenses but rather replacement services, which have already been
compensated. (Def.’s Mot. for Part. Summ. J. at 9.) The Court finds that Defendant’s
attempt to reject all of Foster’s services is too broad because some of her activities may
be allowable expenses. See AC ex rel. White v. State Farm Mut. Auto. Ins. Co., No. 1213896, 2013 WL 5676807, at *4 (E.D. Mich. Oct. 18, 2013) (rejecting a defendant’s
overbroad argument that all services should be denied payment as replacement services
because the result would deny Plaintiff proper compensation for allowable expenses).
The fact that Foster performed primarily replacement services does not preclude Plaintiff
from receiving proper compensation for allowable expenses performed by Foster. See
Douglas, 492 Mich. at 263.
Defendant also argues that at least some of Foster’s services should not be
compensated because they were not reasonably necessary for Plaintiff’s care, recovery, or
rehabilitation for injuries incurred from the accident in question, as required under Mich.
Comp. Laws § 500.3107(1)(a) and established by the court in Griffith, 472 Mich. at 526.

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(Def.’s Mot. for Part. Summ. J. at 5, 7.) Plaintiff argues that this is a question for the jury.
(Pl.’s Resp. to Def.’s Mot. for Part. Summ. J. at 7.)
The Michigan Supreme Court has ruled that “it is for the trier of fact to determine
whether a medical charge, albeit ‘customary,’ is also reasonable.” Advocacy Org. for
Patients & Providers v. Auto Club Ins. Ass’n, 472 Mich. 91, 95 (2005). In Nasser v. Auto
Club Insurance Association, the court likewise held that the question of “whether
expenses are reasonable and reasonably necessary is generally one of fact for the jury.”
435 Mich. 33, 55 (1990). (Pl.’s Resp. to Def.’s Mot. for Part. Summ. J. at 7.) But the
Nasser court noted that it may be possible for the court to decide the question of the
reasonableness or necessity of medical expenses as a matter of law if it can be said “with
certainty” that an expense was both reasonable and necessary. Nasser, 435 Mich. at 55.
Here, viewing the evidence in the light most favorable to the nonmoving party, it
would be difficult to say “with certainty” whether the medically-related services
performed by Foster are reasonable and necessary. What is or is not reasonably necessary
for Plaintiff’s injuries in this case is a question for a jury, making qualification of these
services inappropriate for summary judgment. Therefore, the Court will not grant
Plaintiff’s Motion for Partial Summary Judgment in its entirety.
Nonetheless, many of Foster’s services are clearly replacement services under the
case law. This determination does not require a finding that the services are or are not
reasonably necessary. Preparation of family meals; yard, house, and car maintenance; and
daily chores are replacement services as a matter of law. Douglas, 492 Mich. at 262.
Defendant is entitled to summary judgment for replacement services that Foster provided
in these categories including preparing meals, pet maintenance, and other light

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housekeeping such as making the bed, organizing and cleaning the house, doing the
laundry, and washing the dishes.
But some of Foster’s other services may be allowable expenses, and Plaintiff may be
entitled to recover for those. As noted earlier, services that aid the injured person with
their personal care, such as dressing and bathing, are allowable expenses. See id. at 261.
Foster’s testimony indicates that her involvement in these services was very minimal. Her
personal care services include washing Plaintiff’s back “maybe twice.” (Foster Dep. at
59.) But whether this was reasonably necessary for the care of Plaintiff’s injuries is for a
jury to decide.
Similarly, administering necessary medication is an allowable expense as a matter of
law. Douglas, 492 Mich. at 261. Foster’s involvement was again limited; she packed the
med box when Plaintiff had a lengthy appointment and occasionally handed him his
medication in the home. (Foster Dep. at 42, 64.) Whether this was reasonably necessary
is for a jury to decide.
Transportation services that are not directly related to Plaintiff’s medical treatment
are not allowable expenses as a matter of law. ZCD Transportation, 299 Mich. App. at
342. Therefore the Court will grant summary judgment as to the non-medically-related
driving costs including going to the grocery store, the bank, the post office, the
laundromat, Family Dollar, Self-Serve Lumber, Walmart, City Hall, Secretary of State,
and the veterinarian. But the court in ZCD Transportation found the reasonableness and
necessity of the charges for medical transportation including wait-time was a question for
a jury to decide. Id. at 343. This Court will therefore not grant summary judgment as to

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Foster’s charges for medically-related transportation or for her charges regarding the wait
time associated with these medical visits.
IV. CONCLUSION
The Court finds that some tasks provided by Foster—meal preparation; yard,
house, and car maintenance; other daily household chores; and transportation not directly
related to medical treatment—are replacement services as a matter of law. But the Court
finds that other tasks—personal care, administration of medication, and transportation
directly related to medical treatment—could be allowable expenses. Therefore, the Court
GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Partial Summary
Judgment.

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: July 3, 2014

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the
attorneys and/or parties of record by electronic means or U.S. Mail on July 3, 2014.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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