Manley v. Detroit Auto. Inter-Insurance Exchange

• Decision Date: 29 May 1986
• Docket Number: Docket No. 72621,INTER-INSURANCE
• Citation: Manley v. Detroit Auto. Inter-Insurance Exchange, 388 N.W.2d 216, 425 Mich. 140 (Mich. 1986)
• Parties: Kenneth A. MANLEY and Betty D. Manley, Individually And Jointly As Next Friend Of John Manley, Plaintiffs/Appellants, v. DETROIT AUTOMOBILEEXCHANGE, Defendant/Appellee.
• Court: Michigan Supreme Court

Page 216

388 N.W.2d 216

425 Mich. 140

Kenneth A. MANLEY and Betty D. Manley, Individually And Jointly As Next Friend Of John Manley, Plaintiffs/Appellants, v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, Defendant/Appellee.

Docket No. 72621.

Supreme Court of Michigan.

Argued March 5, 1985.

Decided May 29, 1986.

Moore, Sills, Poling & Wooster, P.C. by Randall J. Gillary, Birmingham, for plaintiffs-appellants.

Condit, McGarry & Schloff, P.C. by Richard P. Condit, Birmingham, for defendant-appellee.

Janet M. Allen, Gaylord, for amicus curiae, Michigan Trial Lawyers Ass'n.

Eggenberger, Eggenberger, McKinney & Webber, P.C. by William D. Eggenberger, Paul D. Hofmeister, Detroit, amicus curiae for State Farm Mut. Auto. Ins. Co.

Glime, Daoust, Wilds, Rusing & LeDuc by Lido V. Bucci, John F. MacArthur, Mt. Clemens, for amicus curiae Michigan Head Injury Alliance, a non-profit Michigan corporation.

Miller & Littman by Wayne J. Miller, Birmingham, for amicus curiae Michigan Injured Workers.

LEVIN, Justice.

This appeal concerns the amounts payable by the defendant no-fault automobile liability insurer, DAIIE, for the care at home of plaintiff John Manley, who was so severely injured in an automobile accident that he is unable to care for himself.

I

John Manley was injured in an automobile accident in 1974 when he was nine. The accident resulted in severe closed head injuries. As a result, John cannot talk or walk or eat with a knife and fork. He wears diapers and has the cognitive ability of a one or two-year-old child. He is confined to a bed or wheelchair and requires total care.

A

After he was released from a hospital, John was transferred to the Oakland County Medical Care Facility where he lived for six years, from August, 1974, to late summer, 1980. One of John's parents, plaintiffs Kenneth and Betty Manley, visited him daily and assisted in his care. Betty Manley would feed him lunch and dinner and accompany him on walks, John in his wheelchair. The Manleys observed that John received intramuscular injections of behavior-control and other drugs and that he was often restrained in bed or tied to a wall. At times, it would take five nurse's aides to hold John down for an injection. There were a number of injections daily, and his buttocks became so sore that it became necessary to inject the drugs in his legs. In 1978, John removed a tube from the nose of another patient, and the director of the OCMCF ordered around-the-clock, private-duty, unskilled nursing care to prevent John from injuring other patients or himself.

DAIIE paid OCMCF $78 per day for room and board, and over $120 per day for sixteen hours of unskilled nursing care. Such private-duty nursing care was not required during the day when John was at a school, or on weekends that the Manleys took John home. ¹

John's parents became dissatisfied with the care that John was receiving at OCMCF. In 1979, they contracted with a builder to have their home modified to better accommodate John at a cost of approximately $19,000.

For a number of years, Mrs. Manley had been bringing food from home for John's lunch and dinner because he was not eating the food provided by OCMCF. In December 1979, she was prevented from bringing the food to John, but this was resolved by her bringing the food to the kitchen which would then be delivered to his bedside.

School ended in June, 1980, and John has not since returned to school. Shortly after school ended, John was examined by a dentist who insisted that there was no need to give John sedation in advance of the examination and who struck him in the face a number of times with an instrument when he did not do as he was told. Shortly thereafter, John was taken home, and his last day at OCMCF was July 2, 1980.

It appears that unskilled nurse's aides were provided at the Manley home from July 3. An agreement was worked out between the Manleys and DAIIE to "preserve the status quo," and for DAIIE to pay the Manleys $78 plus payment for sixteen hours of nursing care per day until a decision was made concerning John's future care and the appropriate level of reimbursement. OCMCF formally discharged John on September 2, 1980.

DAIIE retained a specialist to find an appropriate facility for John. She recommended Warren Village Nursing Home, which charges $48 to $50 per day for room, board, and nursing care. Private nursing care for John was not contemplated. ²

DAIIE notified the Manleys that the benefit payments to them would be reduced to $48 per day effective December 1, 1980, with no separate provision for private nursing care.

B

The Manleys commenced this action and obtained a preliminary mandatory injunction requiring DAIIE to pay them $78 per day for room and board and for the cost of sixteen hours per day private nursing service.

After a jury trial, which commenced in December, 1981, the circuit court entered a declaratory judgment on a special verdict requiring DAIIE to pay the Manleys (i) $30 per day for room and board, and $128 (sixteen hours x $8) per day for unskilled "sitter or nurse's aide" "as long as John Manley is cared for at the home of his parents" "or until further order of this Court," (ii) the full amount of the home modification expenses, $19,087.26, (iii) $12,000 for "past services performed" by the Manleys, and (iv) in a separate order, $15,000 for attorney fees and $838.23 for costs "attributable to Plaintiffs' nursing service claim."

The judgment further provided that DAIIE was to receive credit for the amounts that it had paid pursuant to the preliminary mandatory injunction entered shortly after the commencement of this action. That injunction was dissolved. Subsequently, another mandatory injunction was entered "pending appeal," requiring DAIIE to pay the Manleys $30 per day for "what is commonly referred to as room and board" and the costs incurred in providing sixteen hours per day of unskilled nursing care up to a maximum of $128 per day, provided that bills to substantiate the charges from established nursing companies were submitted to DAIIE.

C

The Court of Appeals set aside the awards of $30 per day for room and board and $128 per day for nurse's aides and the award of $15,000 for attorney fees plus costs, and remanded the case for a new trial "on the issues of room and board and whether expenses for room and board and care by nurse's aides during the period of the preliminary injunction were [actually] incurred." ³ The Court of Appeals also ruled that the trial court had erred in entering a declaratory judgment for the daily amounts awarded for room and board and nurse's aides because such a declaration in futuro was "without regard to whether such expenses were actually incurred." ⁴ The Court of Appeals additionally ruled that the trial court did not err in directing a verdict for DAIIE on the Manleys' claim for damages for mental anguish.

The Court of Appeals further concluded that there was ample evidence to support the verdict that the home modifications were an allowable expense and that the Manleys had reasonably expended $19,000 therefor; we have not been asked to review that award.

The Court of Appeals did not consider whether the $12,000 awarded for services performed by the Manleys was an allowable expense and did not disturb that portion of the judgment; again, we have not been asked to review that award. ⁵

D

We agree with the Court of Appeals, for the reasons stated in Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 295 N.W.2d 50 (1980), that the trial court properly directed a verdict on the mental anguish issue. ⁶

We disagree with the Court of Appeals conclusion that there should be a new trial on the issues of room and board and nurse's aides, and reinstate the judgment entered by the trial court on those issues, including the declaratory judgment which shall, however, be modified to provide, as set forth in the injunction pending appeal, that nursing services are payable up to a maximum of $128 per day, upon submission to DAIIE of bills to substantiate the charges from established nursing companies. We also reinstate the trial court's order awarding attorney fees and costs incurred by the Manleys in establishing their unskilled nursing service claim.

II

The principal question presented for review in this Court is whether the Court of Appeals erred in setting aside the provisions of the judgment entered pursuant to the special verdict awarding $30 per day for room and board and $128 per day for nurse's aides.

A

The Court of Appeals held that a new trial was required on the amount recoverable for room and board because it was apparent that the parties had "mistaken[ly]" ⁷ used the term "room and board" to include products, services and accommodations only some of which were, and others of which were not, allowable expenses within the meaning of § 3107 of the no-fault automobile liability act. Section 3107 provides that no-fault benefits are payable for

"[a]llowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery or rehabilitation." M.C.L. § 500.3107; M.S.A. § 24.13107.

The Court of Appeals declared that "[p]roducts, services, or accommodations which are as necessary for an uninjured person as for an injured person are not 'allowable expenses' " and, therefore, because "food is as necessary for an uninjured person as for an injured person," food "is not ordinarily an 'allowable expense' for an injured person cared for at home, unless the nature of the injury makes a special diet reasonably necessary." ⁸ Because the parties did not offer proofs concerning the cost of providing at home the products, services, and accommodations covered by the OCMCF $78 per day charge or by the Warren Village $48 per day charge, the Court of Appeals was "unable to determine what allowable expenses, if any, are included within plaintiffs'...