Durmishi v. Nat'l Cas. Co.

• Decision Date: 30 June 2010
• Docket Number: Case No. 09-11061.
• Citation: 720 F.Supp.2d 862
• Parties: Ernest DURMISHI, Plaintiff, v. NATIONAL CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

720 F.Supp.2d 862

Ernest DURMISHI, Plaintiff,

v.NATIONAL CASUALTY COMPANY, Defendant.

Case No. 09-11061.

United States District Court, E.D. Michigan,Southern Division.

June 30, 2010.

Kujtim Sulolli, Gerald H. Acker, Goodman Acker, Southfield, MI, for Plaintiff.

William F. Rivard, Harvey Kruse, Troy, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DENYING DEFENDANT'S MOTION TO STRIKE EXPERT WITNESS

DAVID M. LAWSON, District Judge.

Plaintiff Ernest Durmishi was injured in a motor vehicle accident and suffered serious injuries. He sued his insurance carrier, National Casualty Company, for first-party benefits under Michigan's no-fault insurance law, Mich. Comp. Laws § 500.3101 et seq. His main claim is for the value of attendant care benefits furnished by his wife. The defendant refused to pay the benefits demanded. The plaintiff has filed a motion for partial summary judgment seeking an amount equal to 24-hour attendant care at a rate of $26.34 per hour for every day since the Mr. Durmishi was discharged to his home, plus penalty interest and attorney's fees as allowed by Michigan law. The defendant has filed a motion for partial summary judgment, arguing that it is entitled to set off against payment for attendant care services an amount equal to eight hours each day because Mr. Durmishi was injured on the job, and that portion of the benefit is the obligation of his worker's compensation insurer. The defendant also argues that it should not have to pay attorney's fees as a matter of law because Mr. Durmishi refused to attend a medical evaluation as required by state law and the insurance contract. Finally, the defendant has moved to bar testimony from the plaintiff's vocational rehabilitation expert on the ground that his proposed testimony falls within the scope of common knowledge and therefore would not be helpful to a jury. The Court heard oral argument on the motions on April 19, 2010, after which it permitted the parties to file supplemental briefs to address recent appellate decisions. The Court now finds that fact issues preclude summary judgment for the plaintiff except on the issue of the defendant's obligation to pay penalty interest and attorney's fees for some of the attendant care benefits after thirty days following December 4, 2009, when it had reasonable proof of the claim; the defendant is not entitled to set off an amount for worker's compensation benefits until the plaintiff has a right to those benefits, evidence of which is absent from this record; the defendant's right to a medical examination of the plaintiff is governed by Federal Rule of Civil Procedure 35, with which the plaintiff complied, and therefore there is no basis to deny the plaintiff the right to pursue his claim for attorney's fees as a matter of law; and there is no basis to strike the plaintiff's proposed expert witness at this time. Therefore, the defendant's motion for partial summary judgment will be denied, the plaintiff's motion for partial summary judgment will be granted in part and denied in part, and the defendant's motion to strike the expert witness will be denied.

I.

The accident occurred on August 8, 2008 at about 8:30 in the morning. At that time, the plaintiff was a 31-year-old Albanian man employed by L & D Transport, Inc. as a truck driver. The plaintiff spoke Albanian and Greek and had only minimal English proficiency; he relied on his wife, Erjola Durmishi, to translate for him. The plaintiff was driving a semi-tractor-trailer truck down the exit ramp from northbound M-53 onto 23 Mile Road heading east in Shelby Township, Michigan. Witnesses reported that he took a turn off the exit ramp at a high speed and the police report concludes that this speed caused cargo inside the vehicle to shift, which caused the truck to roll over. The parties do not dispute that this accident occurred in the course of the plaintiff's employment with L & D Transport. A Shelby Township Fire Department and Emergency Medical Services team responded to the accident and found the plaintiff unconscious and pinned under the steering wheel, but he regained consciousness at the scene and became combative.

The plaintiff was transported to Henry Ford Hospital where he was found to have brain bleeding that required a craniotomy. He remained in intensive care, and after he failed to regain consciousness, additional brain surgeries were performed. The plaintiff regained consciousness, but other complications extended his hospital stay. Eventually, he was discharged on August 19, 2008 to the Rehabilitation Institute of Michigan (RIM), where he was observed to suffer from difficulties with balance, functional mobility, range of movement, self-care, sensory and motor function, and lack of strength and bed mobility. During his stay at RIM, the plaintiff received physical therapy, occupational therapy, speech therapy, neuropsychology therapy, and attended an interdisciplinary rehabilitation program.

The plaintiff was discharged to his own home on August 26, 2008. Just before discharge, on August 22, 2008, case manager Jean Ward stated in a letter that the plaintiff “will continue to require 24 hour supervision following discharge and for the foreseeable future. Mrs. Durmishi has attended education with her husband's therapists and will be providing the necessary supervision and assistance at home post discharge.” Pl.'s Mot. Summ. J., Ex. 21, Ward letter. Before the accident, Mrs. Durmishi had been employed in two part-time jobs as a salesperson at Burlington Coat Factory and a cashier at a grocery store. She quit both jobs and began providing 24-hour-per-day care to her husband. Because of her husband's English deficiency, Mrs. Durmishi served as his interpreter, and she helped him groom, bathe, and dress himself. She also helped him use the bathroom, and woke during the night several times to do so. The plaintiff apparently continued to have weakness on his right side, pain in his right shoulder, problems with his balance, and confusion. Mrs. Durmishi also prepared her husband's meals, making food that he was able to chew with the pain in his jaw, ear, and head, and helped to feed him because of problems with his right arm. She assisted him with his medication by picking up his prescriptions at the pharmacy and ensuring that he took the correct dosage of his medications on schedule. She helped him to move around the apartment and walk up and down the stairs, tasks that he has increasingly been able to do without assistance.

The plaintiff testified that he continues to experience dizziness “when I'm sitting, when I get up, when I lay down, when I turn my head left to right.” Pl.'s Mot. Partial Summ. J., Ex. 20, dep. of Ernest Durmishi, at 19. His wife still helps him stand; he holds onto her for a few moments after standing to calm his dizziness. The plaintiff does exercises at home to improve his balance with the assistance of his wife. He remains unable to walk outside on his own due to dizziness and requires his wife by his side in case he falls down. The plaintiff has not yet been certified to drive a vehicle again and relies on his wife for transportation. He also has memory problems and explained that “[w]hat I'm thinking now to tell you, in two minutes I don't recall or if I do something, let's say, if I took my medicine or not.” Id. at 47. Based on his forgetfulness, some of the plaintiff's doctors, including Dr. Jay Meythaler from RIM, expressed concerns about the plaintiff's safety if left alone.

On September 8, 2008, the plaintiff began an outpatient rehabilitation program at RIM that spanned the next two months. The evaluator determined that the plaintiff required minimum to moderate assistance for most activities of daily living. The examiner noted that he had no orientation to person, place, or situation, and seemed easily distracted. The examiner recommended 24-hour supervision based the plaintiff's potential for falling, poor gait, balance, right upper extremity function, safety and functional skills, endurance, mobility, community skills, and strength.

On October 21, 2008, the plaintiff was referred to Dr. Jennifer A. LaBuda, a licensed clinical psychologist at the Wayne State University Medical Group, for an assessment of his cognitive and affective functioning. Dr. LaBuda used an independent translator to interview the plaintiff and also received information from Mrs. Durmishi. She noted that “the patient demonstrates significant variability in daily therapy. At times he has evidenced progress, however, at other times, seems disengaged from treatment.” Ans. to Pl.'s Mot. Summ. J., Ex. B, Report of LaBuda at 1.

On both September 22 and October 21, 2008, Dr. Lawrence Horn at RIM issued a prescription for the plaintiff to receive 24-hour attendant care and indicated that the termination date of such care was to be determined. On October 31, 2008, the plaintiff was discharged from the outpatient therapy program.

The record is not clear when the plaintiff first made a claim for no-fault insurance benefits. However, sometime after the accident the plaintiff applied for first-party benefits that included wage-loss differential and attendant care. He sent demand letters for coverage to The Scottsdale Insurance Company on December 5, 2008, January 9, 2009, January 29, 2009, and February 4, 2009, seeking attendant care benefits at the rate of $26.34 per hour, 24 hours per day, and wage-loss differential. The plaintiff received some workers' disability compensation payments from his employer's insurer, Liberty Mutual Insurance Company; however, Liberty Mutual refused to continue paying benefits after December 31, 2008. The plaintiff has stated that he has sued for worker's compensation benefits in the Michigan worker's compensation bureau. Since the motion argument, plaintiff's co...