Bonkowski v. Allstate Ins. Co.

• Decision Date: 23 August 2013
• Docket Number: No. 12-2038,12-2038
• Parties: SHAUN BONKOWSKI, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, An Illinois Insurance Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

SHAUN BONKOWSKI, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, An Illinois Insurance Company, Defendant-Appellee.

No. 12-2038

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Filed: August 23, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0780n.06

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

MICHIGAN

OPINION

Before: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.^*

SARGUS, District Judge. This case arose from Plaintiff-Appellant Shaun Bonkowski's claim for insurance benefits under Michigan's No-Fault Insurance Act, Mich. Comp. Laws § 500.3101 et seq., which entitles him to, inter alia, the cost of attendant care provided to him by his father, Andrew Bonkowski. From 2001 through the filing of this action in 2008, Defendant-Appellee Allstate Insurance Company ("Allstate") compensated Appellant's father at $166,440.00 per year for the attendant care of Appellant, who was rendered a quadriplegic in 2001. In this action, Appellant seeks additional attendant care benefits. The district court denied Appellant's motion for summary judgment and the case proceeded to trial to determine the reasonable pay due to Mr. Bonkowski. The jury returned a verdict in favor of Allstate, finding that no additional amount was due Mr. Bonkowski. After the trial, the district court denied Appellant's renewed motion forjudgment as a matter of law, in which he argued that there was insufficient evidence to support the jury verdict. In the same post-trial motion, Appellant moved for a new trial based on the district court's denial of his request to present a certain jury instruction proposed by Appellant and a particular evidentiary ruling made by the district court. Appellant now appeals the district court's denials of these motions. For the reasons that follow, we AFFIRM the district court's decisions.

I.

A. Facts

On June 3, 2001, while walking home, Appellant was struck by a motor vehicle whose unknown driver fled the scene. Appellant was found in the early morning hours of June 4, 2001, in the ditch of his front lawn after having remained outside, unconscious, in forty to fifty degree weather. He was life-flighted to the hospital, where he remained for more than two months, undergoing multiple surgeries to his legs and cervical spine. He was eighteen years old at the time of the accident.

On August 14, 2001, Appellant was transferred to Craig Hospital in Denver, Colorado, a premier center for specialty rehabilitation and research for spinal cord and traumatic brain injuries. On August 8, 2001, Dr. Mark P. Cilo of Craig Hospital described Appellant's remaining medical issues to include a spinal cord injury with quadriplegia; traumatic brain injury complicated by prolonged hypothermia and probably hypoxia with retrograde amnesia of less than twenty-four hours; loss of consciousness of approximately two days and posttraumatic amnesia of several weeks; a history of subdural hematoma; respiratory failure requiring ventilator support; prolonged hypothermia requiring cardiopulmonary bypass for rewarming; bilateral tibial fractures requiringpost intramedullary nailing; a neurogenic bladder requiring an urethral catheter; a neurogenic bowel; a percutaneous gastrostomy tube in place for feedings; malnutrition due to poor intake and poor tolerance of tube feedings; recurrent fevers and pneumonias, with multiple antibiotics provided; contractures in both upper extremities; anxiety and depression; and severe pain due to his multiple problems, particularly contractures.

Craig Hospital educated and trained Mr. Bonkowski to provide for his son's care. Examples include providing daily manual bowel evacuation (an invasive treatment requiring knowledge of body handling and positioning), bladder care, medication assistance, and transfer assistance. Since Appellant's discharge from Craig Hospital on December 1, 2001, he maintains that his father has cared for him twenty-four hours a day, seven days a week, in accordance with the training and the prescriptions of his physicians. Allstate compensated Mr. Bonkowski at $166,440.00 per year for the attendant care, which is equivalent to an hourly rate of $19.00, for twenty-four hours a day, seven days a week.

B. Michigan's No-Fault Insurance Act

Allstate is the first party no-fault insurer of Appellant. Michigan's No-Fault Insurance Act, Mich. Comp. Laws § 500.3101 et seq., abolished third party tort liability for certain economic damages arising out of a motor vehicle accident and provided a substitute via private insurance. These economic damages include wage loss below the statutory limit, medical costs, and other allowable expenses, including "reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation," collectively known as Personal Injury Protection benefits. See Mich. Comp. Laws §§ 500.3107-.3110; In reFelski, 277 B.R. 732, 733 34 (E.D. Mich. 2002). The Michigan state courts have also approved no-fault compensation for care provided by family members of the injured individual. Booth v. Auto-Owners Ins. Co., 224 Mich. App. 724, 727 29 (1997) (citations omitted).

Three requirements must be satisfied to hold a no-fault insurer responsible for benefits for care provided by a family member: (1) the expense must have been incurred, (2) the expense must have been reasonably necessary for the injured person's care, recovery, or rehabilitation, and (3) the amount of the expense must be reasonable. Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 50 (1990). The burden is on a plaintiff to prove that the expenses were reasonable under the circumstances. Id. at 49.

C. State Court Litigation

Litigation between Allstate and the Bonkowskis began in state court on October 4, 2001 ("Bonkowski I"), and addressed Appellant's expenses incurred from the time he was at Craig Hospital. That case was heard by a jury, which rendered its verdict on July 7, 2006. On the question of the value of the attendant care provided by Mr. Bonkowski the jury was asked: "What is the amount of allowable expenses owed to the plaintiff (include only expenses not already paid by the defendant)?" The jury responded: $1,381,114.00.

Allstate filed an appeal, in which it argued that the there was insufficient evidence upon which a jury could have based its verdict. The Michigan Court of Appeals disagreed, explaining:

The only legally relevant question presented to the jury was whether the compensation [Allstate] paid to Andrew was reasonable. The record contains sufficient evidence to conclude that the jury rejected [Allstate's] position. Substantial evidence was introduced chronicling Andrew's everyday care of [the] plaintiff. Not only did Andrew provide care consistent with that of a licensed healthcare professional, but ample evidence was presented to support the conclusion that Andrew's care was more conducive to [the] plaintiff's care, recovery, or rehabilitation than care that could have been provided by a licensed health care professional. The evidence established that Andrew provided plaintiff care that nurses ordinarily do not provide, including treatment specific to paraplegic patients.

"[T]he trier of fact will ultimately determine whether a charge is reasonable." Advocacy Organization for Patients & Providers v. Auto Club Ins. Ass'n, 257 Mich. App. 365, 379 (2003), citing Nasser v. Auto Club Ins. Ass'n, 435 Mich 33, 55 (1990). The litigants zealously argued their respective cases to the jury. Although the verdict itself is large, there is nonetheless evidence to support the jury's determination that the compensation provided to Andrew by [Allstate] was not adequate, given Andrew's training received at the Craig and the actual attendant care Andrew provided to [the] plaintiff. The evidence was sufficient for reasonable jurors to conclude that the reasonable compensation due Andrew was substantially more than the compensation paid by [Allstate]. Thus, the jury verdict must stand.

Bonkowski v. Allstate Ins. Co., 281 Mich. App. 154, 169 (2008) (parallel citations omitted).

Appellant contends that the lump sum verdict reflects attendant care pay of $468,660.00 per year, which is an hourly rate of $53.50, for twenty-four hours a day, seven days a week. Allstate, however, posits that it is mere speculation to consider that the jury awarded this hourly rate and that it is more likely that the jury awarded a higher hourly or yearly rate for the care related to the acute phase of Appellant's recovery and lowered the amount as Appellant's condition improved and Mr. Bonkowski's care became less necessary and of a lesser intensity. Allstate has continued to pay Mr. Bonkowski $166,440.00 per year since the Bonkowski I jury verdict.

II.

In the district court, Appellant moved for summary judgment on the issue of the attendant care benefits, asserting that Allstate was collaterally and/or judicially estopped from arguing that the reasonable value was any amount less than $53.50 per hour, for twenty-four hours a day, seven daysa week. The district court denied the motion, finding that Appellant's condition and needs were different than they were in Bonkowski I.

A. Standard of Review

This Court's review of the district court's denial of summary judgment is for abuse of discretion unless the denial is based on purely legal grounds, in which case review is de novo. McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004). We have repeatedly held that judicial and collateral estoppel are reviewed under a de novo standard of review.¹ See, e.g., Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002) (judicial estoppel); Stemler v. Florence, 350 F.3d 578, 585 (6th Cir. 2003) (collateral estoppel). In general, "'where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed.'" United States ex rel. A + Homecare, Inc., v....