PIP benefits; Waived special jury instruction issue; Attorney fees under MCL 500.3148(2); Amount of fees; Wood v Detroit Auto Inter-Ins Exch; Rafferty v Markovitz; McAuley v General Motors Corp; “Reasonable amount”; MRPC 1.5(a) factors; Pirgu v United Servs Auto Ass’n

The court rejected “plaintiff’s challenges to the trial court’s allowance of the special jury instruction and to the [trial] court’s decision to award defendant attorney fees under MCL 500.3148(2), but” it vacated the award of $47,212.50 in fees and remanded. The court disagreed that “the trial court erred when it allowed defendant’s special jury instruction at trial.” Plaintiff failed to raise below the challenge it now sought to raise on appeal and, as a result, it waived appellate review of this challenge. Further, the court found that even if it “were to look past this waiver and reach the merits of plaintiff’s argument, a review of the jury instructions demonstrates that the trial court ‘adequately and fairly conveyed the applicable law and theories of the parties to the jury.’” The court also held that plaintiff “failed to show that the trial court abused its discretion in concluding that an award of attorney fees under MCL 500.3148(2) was warranted in this case.” Next, while it disagreed “with plaintiff that the trial court was categorically precluded from awarding an amount to defendant in excess of its actual attorney fees,” it agreed “that the trial court failed to adequately articulate the basis for the amount of fees it awarded.” It concluded plaintiff “failed to show that the trial court’s fee award was necessarily improper solely because it exceeded the amount actually paid by defendant to defense counsel.” The court did not “read the statute’s plain terms to categorically foreclose that possibility, nor do we see anything in McAuley or Rafferty to require otherwise.” But the court found that “the trial court failed to adequately articulate the basis for the ‘reasonable amount’ it awarded to defendant under MCL 500.2148(2).” As a result, it vacated “the award and remand for the trial court to fully address the Pirgu framework and factors, including how the discounted rate charged by defense counsel in this case may impact the requisite reasonableness assessment.”