No-fault insurance; PIP benefits; Allowable expenses; New trial motion; Attorney misconduct; Reetz v Kinsman Marine Transit Co; Harmless error; Attorney fees; MCL 500.3148; Unreasonable refusal to pay; Brown v Home-Owners Ins Co; Reasonable hourly rate; Pirgu v United Servs Auto Ass’n; Expended hours; Augustine v Allstate Ins Co

The court held that plaintiff’s counsel improperly referred to the other driver’s intoxication, but the error was harmless, and that the trial court did not abuse its discretion by awarding plaintiff attorney fees under MCL 500.3148. Plaintiff sued defendant-insurer for no-fault PIP benefits after a rear-end accident. The jury found that her neck-surgery bill was an overdue allowable expense, while rejecting her claim for a later low-back surgery. On appeal, the court first held that plaintiff’s counsel erred by referring to the other driver as drunk because his “possible inebriation” was not relevant to whether plaintiff suffered an accidental bodily injury, whether the bills were allowable expenses, or whether payment was overdue. But under Reetz, the error did not warrant a new trial because the verdict was supported by evidence, including testimony from plaintiff’s treating physicians and defendant’s correspondence to Medicare acknowledging that plaintiff injured her neck in the accident. The court emphasized that the jury did not award plaintiff everything she sought, which showed it “dispassionately reviewed the evidence,” and that instructions not to let sympathy or bias affect the verdict were “sufficient to cure the potentially prejudicial effect” of counsel’s comments. The court next held that attorney fees were proper because the jury’s overdue-benefits finding created a presumption that defendant’s refusal to pay was unreasonable, and defendant failed to rebut it. Although plaintiff had a complicated preexisting medical history, defendant acknowledged in 7/22 that she injured her neck in the accident and was treated for it, and the later records review “does not retroactively create a factual uncertainty that clearly did not exist as early as” 7/22. The court also upheld the $750 hourly rate because the trial court considered the State Bar survey data and the Pirgu factors, including counsel’s experience, the medical complexity of the case, the favorable result, expenses, the contingent fee, and the risk of trying a $50,000-cap case. Finally, the court rejected defendant’s challenge to the hours expended because the trial court held an evidentiary hearing, struck some duplicative or unrelated time, and no authority required contemporaneous time records. Affirmed.