Action seeking uninsured motorist (UM) & personal protection insurance (PIP) benefits under the No-Fault Act; Expert testimony; Personal knowledge; MRE 602; Citizens Nat’l Bank of Cheboygan v. Mayes; Refreshing a witness’s memory; Genna v. Jackson; Objections to a witness’s competency; MCR 2.308(C)(3)(a); Objection that counsel failed to lay a proper foundation for questions asked; Moore v. Lederle Labs.; Preservation of evidence; Brenner v. Kolk; Spoliation instruction; M Civ JI 6.01; Pugno v. Blue Harvest Farms LLC; Determining no-fault attorney fees; MCL 500.3148(1); MRPC 1.5(a); Pirgu v. United Servs. Auto. Ass’n; Proudfoot v. State Farm Mut. Ins. Co.; Moore v. Secura Ins.; Wood v. Detroit Auto. Inter.-Ins. Exch.; Tinnin v. Farmers Ins. Exch.; Overdue benefits; MCL 500.3142(2); Sanctions; MCR 2.312(A) & 2.313(C); Midwest Bus Corp. v. Department of Treasury

Holding that the trial court failed to correctly calculate a reasonable attorney fee, but did not err in any other respect, the court affirmed in part, reversed in part, and remanded. Plaintiff sued defendant seeking UM and PIP benefits for injuries she sustained in a car accident. The trial court granted her motion for a directed verdict as to defendant’s failure to pay a prescription bill during the period of time it was voluntarily paying her PIP benefits. As to all other aspects of her claims, the jury returned a verdict for defendant, finding that the accident did not cause her to suffer a serious impairment of an important body function, and that she had not incurred any allowable PIP expenses in excess of what defendant had already paid. The trial court entered a final judgment partially in favor of plaintiff, and a combined order that granted her a small portion of the no-fault attorney fees she requested against defendant. On appeal, the court rejected plaintiff’s argument that the trial court erred by denying her motion to preclude the admission of the deposition testimony of defendant’s three medical experts because a proper foundation was not laid in refreshing their recollections at their respective depositions, noting “it was not outside the range of reasonable and principled outcomes to hold that the witnesses’ memories had, in fact, been refreshed by their respective evaluations.” It also rejected her claim that the trial court erred by providing a spoliation instruction to the jury as to her failure to produce calendars that purportedly documented the household services her husband performed while she was unable to do so, finding that “because the only question of fact that existed with regard to the calendars was whether plaintiff had a reasonable excuse for disposing of them, the trial court did not abuse its discretion by giving the jury instruction.” However, the court agreed with plaintiff that the trial court failed to properly determine the amount of a reasonable fee. “[I]n determining the baseline fee in accordance with Pirgu, [it] is to include all attorney time that was relevant to recovery of the overdue benefit, even if that time was also relevant to other aspects of the case. Attorney time that was related only to other aspects of the action, and did not bear on the benefits unreasonably withheld, should be excluded from the baseline. Any further limitation on the baseline number of hours would be difficult to square with Pirgu, the statute, or with the principle that the no-fault act’s provisions should be liberally construed in favor of the intended beneficiaries.” Finally, it rejected her contention that the trial court erred by denying sanctions on the basis of defendant’s negative response to her request to admit the vehicle that hit her was not insured, noting defendant “lacked sufficient information to either affirm or deny the request.”