Brother Counsel Argues at The Michigan Court of Appeals!

Added: 2026-05-09

[00:00:00]Okay, welcome back. Thanks very much for your patience. Um, we'll be continuing now with the 11 o'clock uh hour of our call. We're just a little bit behind.

[00:00:10]Um, item number eight, calling item number eight, docket number 366769, affiliated diagnostics of Oakland LLC versus Homeowners Insurance Company.

[00:00:23]Good afternoon.

[00:00:24]>> Good afternoon. Your honor is Martin Rander appearing on behalf of the Appellant Affiliated Diagnostics. I'd like to reserve three minutes for rebuttal and I understand that I have to keep track of my own time.

[00:00:33]>> Correct.

[00:00:34]>> This case returns from the Michigan Supreme Court after it ordered the Court of Appeals to grant leave which I believe was done to correct a manifest injustice.

[00:00:44]The district court judge in this case, Judge Burke, who presided over the both trials in this case, intimately very familiar with the facts and the no fault law, issued an 11page opinion in which he laid out his reasoning why he was granting MCL 53148 attorney fees.

[00:01:03]That opinion was appealed to the circuit court and the circuit court judge in a three-page opinion find made findings that judge Burke uh his findings were clearly erroneous and that he abused his discretion in awarding those attorney fees. It's my opinion, your honor, my position that the circuit court is the one who made the error, not the district court, Judge Burke. That's why I'm going to be asking to reverse the circuit court, reinstate Judge Burke's opinion and remand back to district court to finalize the hours in this case. I know your honors read the briefs, so I just very briefly want to go over some of the important facts which have a lot to do with the legal argument. In March 31st, 2017 is when Sheree Thurman was in a severe serious car accident in which both cars were totaled. She was extricated from the vehicle on a stretcher with full spinal precautions and rushed to Henry Ford Hospital. Luckily, she made a recovery.

[00:02:02]A number of tests were performed and she was eventually discharged with instructions to follow up with a specialist. She did follow up with a specialist. That specialist ordered MRIs. Those MRIs were performed at my client's facility, Affiliated Diagnostics of Oakland.

[00:02:19]affiliated Diagnostics of Oakland Build Homeowners Insurance Company on June 19th, 2017.

[00:02:26]That's the important date.

[00:02:29]With this with the submissions, affiliated also submitted the MRI reports and the prescription for the MRIs. The MRI reports detailed severe and serious herniations in Sheree Thurman's back. At the same time, homeowners also had in its possession the Henry Ford hospital records, the pictures of the cars that were totaled, and the police report. She they also had the specialist records. Despite having all these records, homeowners sent one page of a correspondent saying that the claim is under investigation. There was no further correspondence sent from homeowners for another 16 months. What >> the explanation of benefits involved here? Correct. explanation of the benefits were sent.

[00:03:12]>> Who was sending notes?

[00:03:14]>> Homeowners.

[00:03:14]>> Homeowners.

[00:03:15]>> Homeowners sent that first explanation of benefits around the time of June July of 2017 saying the claims under investigation and that was it. No further correspondence was re received for another 16 months when the third claims adjuster assigned to this claim sent a letter laying out some generic reasons why they're denying the bills.

[00:03:35]The IMES in this case were conducted a full year after the submission. began a full year after the submissions and continued right up to trial into the second trial. Surveillance was conducted, but that was also conducted a full year after submissions. The deposition of Sheree Thurman was conducted a full year, more than a full year after the submissions of the bills.

[00:03:58]So, what did homeowners have to rely on to deny the bills is the million-doll question, which after nine years we still don't know the answer to.

[00:04:08]Now, Sheree Thurman did have some pre-existing injuries. Those pre-existing injuries were exasperated by this vehicle, motor vehicle, severe motor vehicle accident, and homeowners did not find out about that till many, many months at least till uh after the denial.

[00:04:29]>> After the deni or after the denial or after the 30-day denial window?

[00:04:33]>> Yeah, after the I'm sorry, that's what I'm referring to as the denial. after the 30 days that they have to to decide on the case. So that's operating to me as a denial. Um eventually the case went to trial. There was a verdict with interest and that created a presumption that the denial was unreasonable. That's what the case law states very clearly.

[00:04:53]And then the question then becomes, did homeowners have a bonafide factual uncertainty at the time of the denial?

[00:05:03]And at the time of the denial is when we have to look at that's what EV visage versus Auto Club Insurance Association and a number of other cases say you got to look at the time of the denial not what they found out a year later when they started sending IME and conducting surveillance. What did they know at the time the 30-day window was up? What did they know at that time that they can rely on and claim that they had a bonafide factual uncertainty? And the record is completely empty. There's no attachments, no exhibits. after nine years, they still are scrambling to try to make some sort of cohesive argument that they had some something to rely on, which they don't.

[00:05:37]>> But ultimately, the verdict that um that you that that that is not is not being challenged at this point, at least directly, is a sub $800 verdict. Right. So, the the the the second jury found that there there's an entitlement to some, but you know, relative to the full amount requested, a small amount. Um what uh how should we think about that here? Um I mean obviously that's the that that looms large, right? You have a right about $90,000 judgment or so and you know a $800 plus, you know, three $400 of interest um is is is the verdict portion. So I mean you know is it your position that doesn't matter that that disparity and u or or tell me how it does matter and why it doesn't affect the integrity of the of the award here. Sure, absolutely are.

[00:06:32]And I would say and I would urge this court to do exactly what this court has done in the past. And this is in a case versus commod versus Gford, which is a Michigan Court of Appeals case in 2020 where the verdict was $17.

[00:06:44]And the award of attorney fees, which was upheld by this court, was $235,000.

[00:06:50]So the court of appeals already has binding precedent that the amount of the verdict has nothing to do with the sanction. And that's what 3148 was created for. It was created to sanction an insurance company so they can't squeeze these tiny providers with these bills and just not pay them for nine years and run them out of business.

[00:07:08]That's exactly why they created 3148 for these exact situations. So >> I mean per at least right among the factors is the result obtained.

[00:07:17]So presumably that provides you know some nominal or you know space to consider the the you know the the quality of the result and obviously you have a win here but you know a a a a small uh you know monetary amount to show for it. So you know that didn't seem to trouble the district court judge um and I guess why should we not be troubled by it either? Yeah. Well, I don't think you should be troubled because we have binding court of appeals precedents in Comed versus Gford and as well as Tinan versus Farmers Insurance Exchange which say that the amount of the verdict has no bearing on the amount of attorney fees. As we just show showed you, $107 as a verdict and $235,000 as attorney fees. In tin, the verdict was $1,200 and the award of attorney fees was many, many tens of thousands of dollars above that. So, and uh I would say that that issue that's brought up in Perggo is similar in Smith and versus Cury that has to do with the rate I believe in how to determine how much this attorney is worth. That's one of the many many factors that go into that analysis. What rate do we put on this attorney? Not do we not have do we not award a substantial amount of of of attorney fees. So, that's what I would respond to that your honor.

[00:08:32]Um coming to the question of whether the reason as we're talking about whether this fee is reasonable and uh how do we determine whether a fee is reasonable?

[00:08:42]Well, one of the ways is to to see how many hours is the plaintiff claiming claiming. In this case, the plaintiff's council claimed 252 hours to have spent on this case with two trials and a very lengthy appellet process. The defense in this case, the homeowners insurance company's attorneys admitted that they spent almost double that amount of time.

[00:09:01]So they can't get up and argue that 252 hours is unreasonable amount to spend on this case when they themselves have spent 444 hours on this case, which autos presumably paid for, which they presumably assume uh is reasonable.

[00:09:14]There was also a full evidentary hearing that was held at the time. Plaintiff council took the stand. He submitted a itemized billing charge showing exactly what he did on the file. He was subject to cross-examination. Judge Burke went through the factors in Smith versus Cury, all those factors, and that's how he determined a reasonable rate. So any argument that the the fee is not reasonable is is going to fall flat.

[00:09:39]Another interesting that issue that was brought up on this case is because this was a case tried in district court where there's a $25,000 jurisdictional limit.

[00:09:48]This is one of the arguments that my brother council makes is that therefore the attorney fee should be limited to $25,000. And for that we also have binding Michigan Supreme Court authority which says that that's not how it works with attorney fees. The jurisdictional limit is not is not bound by attorney fees. The attorney fees it's exclusive of attorney fees and interest. This is also inc versus Detroit automobile inter insurance exchange. So, even though this case was tried at the district court level, attorney fees are not capped at $25,000 >> unless there's a unless it's a contractual fee. Is that right? We have that case law that recognizes that's your position is that that's a the contractual nature of that makes it a makes it a damages award that folds into the jurisdictional amount.

[00:10:33]>> I couldn't have said it better myself.

[00:10:35]That's exactly what that case stands for. It's a contractual has nothing to do with the no fault statute and yeah, it has nothing no bearing on this case.

[00:10:41]Another very interesting issue and one of the more novel issues that we're going to get into that this court of appeals has to make a decision on is the appeal time. There was a lot of appeals in this case. Even though it was a district court case, we went through multiple appeals. There's two separate appeals. The first appeal actually had to do with the verdict. The first appeal was on the verdict. And the question that one of the arguments that other council made is that the appeal time should not be convincible. After all, they won that appeal. We have to try the case again. And that for that proposition is just there's no um basis in the law for that because the court of appeals in a binding decision. Bloom versus Auto Club Insurance Company says that no appeal time could be uh commence compensible under 3148 which if judge Burke relied on would then obviously not be an abuse of discretion if he's relying on binding court of appeals president. I mean, doesn't that kind of fold into whether the hours spent on that appeal were reasonable? And if they were spent pursuing a meritless uh goal or objective, that that makes them less likely to be reasonable than if they were spent pursuing a an objective that had merit.

[00:11:52]>> Well, ultimately, I think the question is, are these hours spent to to recover overdue PIT benefits? you're not going to win every motion either, >> right?

[00:12:04]>> So just because you unsuccessfully argue a motion, that time is still going to be recoverable because it's all in the effort to recover these unpaid benefits.

[00:12:12]So even though you may have lost the appeal, all the time is spent in an effort to recover which was eventually recovered with interest. So I think what's more >> I mean if if if if the other side has to file a motion to compel discovery and you lose that motion uh do you you know do you get to recover fees for the time you spent fighting the other side's motion to compel discovery? Um that's not the case here. This is a completely hypothetical but the reason I bring it up is because there is this situation where um you lost the appeal.

[00:12:48]>> Um at the same time you would have you know all the time was eventually led to a a victory although a a fairly small one. yourself.

[00:13:00]>> Yeah. And uh I I like the question. Uh I would again I would argue that affiliated was put in a position because of certain rulings that a judge made and now we are stuck with arguing that appeal and even if we lose on that issue because of the judge's rulings, affiliated shouldn't take the brunt of that. We're still arguing for our PIT benefits. You're not going to win every motion. You may not win every appeal, but we're still the ones fighting for our benefits. So maybe you you're saying you you you might want to look to who who made the error that that created the necessity for the appeal that that kind of thing.

[00:13:32]>> Well, I I wouldn't say that that we where should we be looking because the case law I believe is clear that as long as your effort is to over to to uh get paid the unpaid benefits to recover the unpaid benefits it's all compensible. So you'd be running down a slippery slope.

[00:13:50]So you lose appeals. Okay, we set say we take away okay lost appeal. Where do you where do you start with motions to compel? Where do you start with motions for summary disposition that people can spend hours and hours on? Do we if you lose that does that not compensible?

[00:14:01]It's you can't start parsing it off like that.

[00:14:04]>> But presumably I mean even if there's not a categorical rule about it presumably you end up in a the judge, you know, looking at various factors to assess sort of like the reasonleness of the fear. Are you saying that the judge couldn't fold that into that sort of reasonableness assessment or just that there's not a categorical rule about it before it gets to the judge?

[00:14:24]>> It's a very interesting question. Uh would the judge be able to consider that as part of his reasonable analysis? Um I would say that the judge kind of stuck with the court of appeals decisions and unless he finds in a court of appeals where you're allowed to do that, I would say that that's unreasonable. And from my research, I haven't find found a court of appeals decision that says that appeal time is not compensible. I only found cases that say that it is compensible. So, um I think what's very interesting in this case specifically is that here we have the second appeal and the second appeal like your honors pointed out is limited to 3148 attorney fees. So the question is what about all this time that we're spending on this second appeal which we went to the Michigan Supreme Court already at this point. So all that time is that compensible and we have a very interesting decision in McKelie versus Auto Club Insurance Association which is a Michigan Supreme Court case. In that case, the uh issue in front of the courts, the appeal, the appeal issue was only 3148 attorney fees. That was the direct issue. However, in that case, the court made a point of saying that the insurance company has already paid the verdict. And because they paid the verdict, the only issue and the only thing that the attorneys were going after were 3148 attorney fees. In this case, it's quite the contrary. Believe it or not, homeowners has still not paid the verdict. So, they are waiting for this issue to be litigated apparently until they are willing to let go of the pit benefits that are owed to my client.

[00:15:54]>> Yeah. So, this is all even though the direct issue in front of your court, the court today is just 3148 attorney fees, but it's all in order to obtain that unpaid benefit that is still in the homeowner's hands. Now, you started out talking about how long it took homeowners to decide this claim and they hired an investigator. They did a number of things. Took a very long time. All turns out that was justified.

[00:16:19]>> It turns out that I'm sorry.

[00:16:20]>> It was justified. You sought $19,000 and you got less than what? Less than 800.

[00:16:26]All right. So, all those efforts turned out to be justified. Should they be penalized for that?

[00:16:31]>> According to the case law, they should.

[00:16:33]Uh they they didn't pay $800. They paid zero. Right. They paid zero. At some point they're going to have to pay the $800, won't they?

[00:16:40]>> At some point. Will they have to pay?

[00:16:41]Yeah, at some point. But watch my I mean the whole point of 3148 is to sanction.

[00:16:45]>> So you would have been just as happy back when they issued the EOB with the $800 as just as happy as if you received 19,000.

[00:16:54]>> I would say that that's much more of a reasonable approach. But >> suppose they could have made an offer of judgment, right? They they could have if they thought the case was only worth $780, they could have made an offer of judgment earlier in the case and and if they ne and if you never won above what they thought the case was worth, that cuts off the attorney's fees after the offer is rejected.

[00:17:17]I I'm pretty sure they didn't do that.

[00:17:20]So, >> there was zero offer on this case for the entirety of the >> But the question would be, are they in a position to make that offer of judgment or did they need to investigate further?

[00:17:30]Well, I mean, they're in a position whenever they want to make an offer in judgment. I mean, >> sure they are. I mean, we all are.

[00:17:35]>> Sure.

[00:17:35]>> But certainly, I'm not going to make it without having some educated basis for making it.

[00:17:40]>> Sure. Then the question would be, why wait? Why wait?

[00:17:43]>> They investigated it. You went down a whole litany of things. They did.

[00:17:47]>> They didn't start doing those things until a full year after the submissions of the bills. If they want to investigate a claim, they can, but they should just get >> within the 30 days.

[00:17:56]>> Within 30 days. That's what the statute provides. They have 30 days to investigate the claim. They could have sent her to Fry notices, get medical record requests. We haven't seen anything because I suspect that there was no investigation in this case until they were sued and then >> I guess council from your perspective then if they if you know everything is the same here. It's 30 days. It's still under investigation for them and they, you know, but they're not in a position to make an offer of judgment or to no.

[00:18:25]The way it's supposed to work as in they should just pay the 19 and then litigate to recover what they ultimately determine uh shouldn't have been paid.

[00:18:36]>> Well, there is a mechanism. There's 3148 for the insurance companies as well. I mean, if they paid a payment that was fraudulent, they could also obtain 3148 attorney fees. who probably have cases >> even short of that even if it's not fraud. I mean I'm not talking about the penalty part but just about how the litigation would unfold like how things should have happened here because obviously we're in a space of penalty which contemplates there's something that has happened that's gone wrong. Um so the thing that's gone wrong here as I surmise from your position is that we hit 30 days and at that point you know if if you're still under investigation like what should the insurer do? just pay it and then kind of go about litigating figuring out whether they should have paid all of it and then try to get what they think shouldn't have been paid back. Is that what should have happened?

[00:19:18]>> They should do two things. They should number one notify the uh the claimant about what investigation they have undertaken what their findings so far have been, what they're doing. Let them know what's going on, what the process is, and they do need to make a determination after 30 days to pay whatever they feel is reasonable. So, if their investigation is saying, you know, we're going to find a lot of things here. We're already discovering things.

[00:19:37]Okay, maybe we won't pay. We'll take that risk. Or we'll say, we've seen a lot of funny things, but maybe, you know, reasonable amount would be such and such, so we'll do it. But if there's no action at all taken on a file for 16 months, that's unreasonable. And that's what happened in this case. So that's why, your honors, I believe that the circuit court's ruling should be reversed and Judge Burke, the district court, should be reinstated and be remanded to finalize all the hours in this case.

[00:20:00]>> And the finalizing of the hours would be to account for what?

[00:20:06]everything that's happened since >> as we're standing here today falls within the scope because the verdict amount has not been paid >> because the benefits are still not been paid. They're still being held by the insurance company investing them for the past nine years. So yeah, thank you.

[00:20:26]>> Thank you your honors. Good to see you all. Jonathan Freshower on behalf of home >> once again I didn't recognize you and even though I saw you last >> Oh really? changed dramatically from his time at the Court of Appeals.

[00:20:37]>> I thank you. I appreciate that. Um, I will be as quick as possible. I understand all of this has been briefed.

[00:20:45]There's just a couple things I want to touch on. There's a number of interesting issues in this case and I was noticing in brother Council's argument and also since the day I graduated law school that all of them seem to come down to the word reasonable.

[00:20:58]So, um, it's intersecting on every issue. What is reasonable? I think by far the most important issue in this case is whether there was a bonafidede or bonafide factual uncertainty when homeowners denied this claim.

[00:21:16]In order for benefits ever to be due, there has to be reasonable proof of loss and a causal connection between an accident and the loss that was sustained. And I think there's a little bit of burden shifting in plaintiff's argument about when that proof of loss was ever provided in this case. Um it's plaintiff's burden to prove at first that their injuries have some level of causal connection that then triggers homeowners burden to pay.

[00:21:50]I understand plaintiff's suggestion that homeowners is kind of over relying on trial evidence that certainly they could not have relied upon prior to trial. So, I'm going to try to focus a little bit on just what was inarguably available to homeowners almost immediately. Um, and that is this comes from the deposition testimony of homeowners adjuster uh Charles Rosenthal. the >> and he but he was not involved at the time of >> he only became involved in this file later.

[00:22:22]>> Right. Right. So I believe he's pontificating but he I think probably has the claim records and is generally aware of when when things are received but inarguably the emergency room records >> there was no diagnosis no suggestion of an injury in those emergency room records. Um then we have the visit to Dr. Hari, I'm not 100% sure how to pronounce that, but he has a treatment plan which appears to be associated with pain. MRIs are not indicated as as necessary in that treatment plan. We then get four MRIs um approximately 2 months later, which are I will say a little suspicious on their face, but particularly in light of DA Dr. Hari's treatment plan. And all of these are just bases for homeowners to question whether there was a causal connection between the accident that occurred and the $20,000 that was requested.

[00:23:19]>> Did anyone testify as to those facts being actually factually under consideration at the time within the 30-day period? Or were or was this just testimony afterwards that said, "Well, looking back on this, this could have been >> there was a question."

[00:23:37]>> Some testimony from that insurance adjuster who was looking back about when auto owners had at what point they had procured these records. So the the question was was auto owners reviewing them at that time. Um so that was the purpose of that testimony. I would say, you know, I think the reason we're here today, uh, this case is did not present an incredibly high um, number for auto owners is that they felt so so strongly about their position here at all times and their uncertainty about the causal connection between the injury. But there wasn't, maybe I misunderstood your response before, there's not like an affidavit >> or testimony in the record that says, "Hi, I I work for auto owners and within this 30-day period, these are the records I was reviewing and these were the conclusions I was reaching about the the the validity of these claims."

[00:24:34]>> I I would say that I there is and it's the testimony of of um Mr. Rosenthal.

[00:24:42]>> Okay. Now, he was not the one reviewing at the time, but I think he's referring to auto owners records of what what was being reviewed if I if that answers your question. There is no >> maybe I I'm just trying to get the sense of like how much of this is after the fact and how much of this is like >> at the time and maybe it's not dispositive but I'm just >> Well, I think it actually does raise an interesting point which is in that timeline of things taking so long. These records are obtained with by the testimony is by the end of June 2017. Um the this lawsuit was actually filed in the no fault world, which I would like to say sometimes I'm more involved than I want to be in relatively quickly in September of that year. So this lawsuit was ongoing um auto owners was defending this action while investigating it, which is not completely out of the ordinary, but um you know, the the um IME that was obtained was obtained in light of this. I'm certain one might have been obtained eventually, but this litigation was ongoing. I think that's an interesting point to make in terms of how long this timeline is, is that litigation began pretty quickly. Um, and but that's not to say that an investigation wasn't occurring beforehand. It certainly was. Records were being produced. auto owners paid the emergency room bills um related to this accident because there was no question that the emergency room visit was necessitated by the motor vehicle accident um which is also how one of the reasons we know they had uh those records. The point being I think this case paints a pretty clear picture of what a a bonafidede factual uncertainty is. um they auto owners had a lot of reasons to question.

[00:26:32]The fact that they then uncovered a mountain of evidence that confirmed their suspicion doesn't mean that their initial uncertainty was was invalid.

[00:26:42]And I don't think it would appropriate be appropriate in every case. Certainly I will take from this going forward that insurers should be very careful in arguing this issue about timelines. but and when certain evidence is obtained and maybe keeping track of that and noting it. But I I don't think it would be appropriate to require insurers to essentially prove a negative. The the purpose is a plainif is required to show proof reasonable proof of loss. And I don't think it's the job of an insurer, you know, after trial to explain why the proof itself is insufficient. the the the records that were given to auto owners to suggest a causal connection were insufficient.

[00:27:33]With that, I will just briefly touch on some of the other issues. Um, I think that issue controls this case. Um, but I would also argue I don't the amount of fees aren't reasonable. This is, as your honors noted, a um $789 verdict and award for $90,000 of attorney fees. And I >> council just to confirm is there any dispute that the verdict amount has not been paid?

[00:28:00]>> I don't think there is. I I'm glad you asked that question your honor because that is not I don't I want to say I don't believe auto owners would have any issue paying that verdict today. I don't think it's been a really a discussion because I think the parties have been focused on these appeals, but I don't believe >> but they haven't.

[00:28:18]>> I don't I I don't believe that they have. I think an appeal the appeal was taken. One of the issues in the initial appeal um that's we're not arguing today was that auto owners or I'm sorry homeowners was entitled to um a a special jury instruction on the issue of fraud. So they were seeking to overturn the verdict and I I think that $789 just there's certainly no issue paying that but just kind of got lost in the shuffle of we are arguing these issues. No, there's been no demand um for that money. So, >> and you I mean and I I know you're I I I understand that you've presented it in your brief this way as we're not challenging the verdict based on the special jury instruction, but you are still challenging that instruction, you know, uh as a way to reinforce a a favorable ruling on the part of the case that financially is more consequential to you.

[00:29:18]>> I'm sorry. Could you re I don't think I fully understand.

[00:29:21]>> You've put the fraud the fraud instruction you've still put in play.

[00:29:24]Just I understand you're trying to insulate the the verdict arguing it at the same time.

[00:29:28]>> Correct. Yeah. So I mean you have a verdict that's not been paid.

[00:29:32]>> Yeah.

[00:29:32]>> And you still have a uh a legal issue you know that is pertinent to that verdict except based on how you're trying to sort I guess frame the argument around it. So I mean when I think about sort of what the if we you know disagree with you in terms of the propriety of the award then you have to determine sort of when that award you know what it should comprise >> right and um you know to the question of you know does it did did the appropriate time period for that award end sooner um I'm trying to figure out the right way to think about that in light of healthy >> and the fact that we don't have a verdict that's been satisfied yet for for whatever reason, even though um we're nominally not challenging its integrity.

[00:30:19]>> Yeah. I I guess my answer to that because it stuck out to me that I I didn't think fees for for example today were really in question until today. But um I think it's although we may include some argument related to the jury instruction in our briefing, I think it's pretty clear that we haven't appealed that issue. We appealed the um attorney fee issue and that issue and we won on the attorney fee issue and lost that the jury instruction issue and we did not appeal the our loss of the jury instruction issue if that clarifies.

[00:30:55]>> But you're still arguing the issue to your benefit on this appeal.

[00:30:59]>> Um it would appear maybe not to our benefit but no we we it's it's raised um I I think it is is raised as an alternative basis. Something I would point out is, and I want to revisit this case on a separate issue. I I will be very quick, but the Hodgej case that Pliff relies on relates to this um because it stuck out to me the the idea that we will continue to pay what I would categorize today would be fees for fees. It ordinarily you are not entitled to recover the attorney fees um that are uh come out of your attempt to recover attorney fees. is usually referred to fees for fees in Hajj um which was a case about subject matter jurisdiction related to the the district court jurisdictional issue. Um there's an entire paragraph, it's the last paragraph of that case about the court saying, "We understand that there could be circumstances in which a party could draw out a case to increase um the value that it has." I'm not saying the plaintiff is doing that today, but I am saying that that's something to consider in light of the fact that really this is $789 that auto owners would pay would have paid. And I do feel that this was lo there's there's not been a demand.

[00:32:22]There's not been a discussion. This the discussion has been about these appeals and these appeals since the issue of since the circuit court issued his opinion. The issue has been the reasonleness of attorney fees. Um, just a couple quick issues. Uh, other other things. So, I think I said this this is a very large award for $789 and the wood factor. I believe brother council was asked about it. There is an explicit factor to consider under wood.

[00:32:55]Um, it's well established in Michigan.

[00:32:58]that is the amount of in question and the results obtained when determining an attorney fee.

[00:33:04]Um I also you know I do not believe that it is a frivolous position to take that auto owners did win the first appeal um and some fees associated with that first trial and first appeal. Again the question comes down to what is reasonable here.

[00:33:23]Another issue we raised that I I think assuming this case is not resolved by the bonafidede factual uncertainty issue is that hours were not adequately tracked. I think the issue is less about an argument about the amount of hours that were um expended but and more about whether we can reasonably rely on the tracking method under Augustine. Um, with that, your honors, unless you have any questions, I believe I addressed most of what I I wanted to. I I believe the bonafiday factual uncertainty issue is relatively clear in this case. Um and and frankly I think were it to go the other way it could it could be somewhat of a dangerous precedent in terms of uh insurers paying and chasing and you know the purpose of the no fault act is to reduce premiums and there has to be an ability for insurers to investigate claims that appear on their face to not be causally connected to an accident.

[00:34:32]Are are you are you not you're not challenging the at the hourly rates that were set? Is that right? That that's not part of the >> I don't believe that. I I it's it is in our briefing. We're we're challenging the the hourly rates, but I think that the um the district court resolved that issue. You know, we didn't >> the main issue is the hours and then any um the reasonleness of the hours. So, >> yeah. And I I know we briefed uh the hourly rates. I will say I also understand that attorney Rner is a great attorney and I the rate in this case was not um I think out of the ordinary.

[00:35:15]>> Thank you your honors.

[00:35:16]>> Yep. Thank you.

[00:35:17]>> Thanks.

[00:35:22]>> Well actually your honors the uh purpose of the no fault act was to ensure prompt payment of pit benefits. That's pretty clear in the case law. So it's it's also to lower insurance premiums, but also the point which is straight out is that to ensure prompt payment, not 9 years waiting of payment. It seems like insurance uh auto insurance or homeowners insurance wants us to hold their hand and uh make sure they don't lose checks in the shuffle and that if we don't make demands for payment when there's a verdict uh sitting on their desks, then that means that they don't have to pay. I mean, this is part of the problem. This is exactly why we have 3148 attorney fees so that you have auto insurance companies not waiting for small providers to remind them to pay them. Um in terms of the causal argument that was made uh there is nothing in the record the exactly as uh judge Corbin said there is uh there's no affidavit.

[00:36:18]The only testimony that was talked about in argument was testimony that I I spoke about in my reply brief. And in that testimony, the adjuster said talking about what he's received up until that point, which is all just the records that I spoke about, the Henry Ford records, the affiliated records, the specialist records. In those records talking about causation, the specialist said that all these injuries that he associates in his medical records, the back pain, the radiating neck pain, all the issues that she had, he relates directly to the car to the car car accident. There is no question, there's no uncertainty from and this is in exhibit 11 uh in the appendix if you if you want to look there. Um probably there's a claim record. They had nine years to produce a single record showing what they had at the time. We can't say probably at this stage. You got to show it and they can't show it.

[00:37:18]Interestingly was there's a there's a comment about filing months after the denial. Keep in mind you have one year to file or you lose that claim. So we're not going to wait up until the deadline.

[00:37:31]can't expect providers say well maybe the insurance company's going to become reasonable all of a sudden. So, oh yeah, we did. They did file a couple months after the denial after 30 days have passed. And that's what the law provides in terms of the hours being tracked. And I'm a little surprised to hear this argument that I guess there is some sort of argument that 252 hours are not reasonable when defense council admitted to have spent over 444 hours. Uh so perhaps if plaintiff's council would have tracked his hours, it would have been more like 400 hours. So uh I'm not sure if that argument is also going to to sway why that should be considered unreasonable for a plaintiff to claim 252 hours. There's no requirement for tracking hours. The only requirement under the statute is that the fee be reasonable. And that's all we're asking for in this case. And uh your honors that is can >> I ask about the fees on fees issue. Is is your argument that mckelie is distinguishable because the verdict has not been paid in this case whereas had the verdict been paid right after the verdict was entered. That might be a we we don't have to go there because that's not that's not an issue.

[00:38:50]>> That's exactly it. That's exactly as long as the insurance company is holding on to the benefits, whatever's going on to stop them from paying, which apparently at this point is the 3148 issue, it's all an action to over to recover unpaid PIT benefits. So, it's recoverable under 3148.

[00:39:09]>> Thank you, honor.

[00:39:10]>> Thanks.

[00:39:11]>> Thank you.

[00:39:11]>> All right. Thank you very much. That case will be submitted. Um, we will now turn to item number nine, docket number 367 737.