The No-Fault Act (NFA); Attorney fees under MCL 500.3148(1); Ross v Auto Club Group; Unreasonable refusal to pay claims; Moore v Secura Ins; Waiver; Traumatic brain injury (TBI)

Holding that the trial court did not clearly err in concluding defendant-insurer unreasonably refused to pay plaintiffs’ claims, the court affirmed its attorney fee award for plaintiffs under the NFA. Plaintiff-JB was injured after being hit by a truck in 7/15. JB was covered by a no-fault policy with defendant, which paid JB’s medical bills for a time. After a period with no activity on JB’s file, defendant’s claims adjuster closed it. In 7/18, JB was admitted to a rehabilitation facility that treats TBIs (plaintiff-Moriah, Inc., doing business as Eisenhower Center). Defendant refused to pay for this care. A jury returned a verdict for plaintiffs. On appeal, the court first noted that, contrary to defendant’s representations, “plaintiffs presented evidence that JB was indeed diagnosed with a TBI following the 2015 accident, and that defendant had a record in its possession that reflected this diagnosis.” Relying on a note written by a doctor (M) who was treating JB in 7/18, defendant contended there was “a legitimate factual uncertainty about whether JB’s treatment for a TBI at Eisenhower in 2018 was related to JB’s 2015 accident or” a 2018 accident. But the statement on which defendant relied was “in the section of the treatment note titled, ‘History of Present Illness.’” The court found it was “obvious from this context that [M] was not opining that JB had suffered a TBI in the [4/18] accident but was merely recording background information that was largely irrelevant to the reason that [M] was treating JB. Even assuming that this was not patently obvious from a cursory review of [M’s] treatment note, no one associated with defendant ever followed up with” M to clarify what the note meant, despite its heavy reliance on the note. Further, defendant ignored “how sparsely it investigated JB’s injury before concluding that JB’s treatment at Eisenhower was related to his 2018 accident.”