Nickola v. MIC Gen. Ins. Co., Docket No. 322565.
| Decision Date | 24 September 2015 |
| Docket Number | Docket No. 322565. |
| Citation | 878 N.W.2d 480,312 Mich.App. 374 |
| Parties | NICKOLA v. MIC GENERAL INSURANCE COMPANY. |
| Court | Court of Appeal of Michigan — District of US |
Bendure & Thomas, Detroit (by Mark R. Bendure ) and John D. Nickola for plaintiff.
Harvey Kruse, PC, Troy (by Michael F. Schmidt and Nathan Peplinski ) for defendant.
Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.
In this action against defendant, MIC General Insurance Company, doing business as GMAC Insurance, concerning underinsured-motorist benefits, plaintiff, Joseph G. Nickola, as personal representative of the estates of George and Thelma Nickola,1 appeals the June 19, 2014 order denying plaintiff's request for attorney fees and interest.2 We affirm in part and remand for further proceedings.
This case involves a protracted procedural history. The matter arose out of a motor vehicle accident that occurred on April 13, 2004. George and Thelma, who were insured by defendant, were injured3 when an automobile driven by Roy Smith, who was insured by Progressive Insurance Company, struck their automobile. The maximum available coverage on Smith's auto policy with Progressive was $20,000 per individual involved in an accident. George and Thelma, with defendant's consent, settled the tort claim, with Progressive paying its client's policy limits on or about November 21, 2004. Thereafter, they turned to defendant, their no-fault insurer, and sought underinsured-motorist (UIM) benefits. Defendant's policy with George and Thelma provided UIM coverage in the amount of $100,000 per person and $300,000 per accident; George and Thelma each sought $80,000, which represented the $100,000 policy limit minus the $20,000 already received from Progressive.
Despite the fact that the policy stated that either party could demand arbitration, defendant responded to the request for arbitration on March 1, 2005, by denying the demand, stating that it had never agreed to arbitrate and that both parties had to agree to arbitration under the policy before a UIM claim could proceed to arbitration. The reasons for defendant's denial in the face of the policy's arbitration clause are not entirely clear from the record.
Defendant's denial of the request for arbitration prompted George and Thelma to file a complaint for declaratory relief on April 8, 2005, in which they asked the trial court to compel arbitration. In answering the complaint, defendant "neither admit[ted] nor denie[d] the allegations" raised in the complaint concerning whether one party to its insurance contract with George and Thelma could unilaterally compel arbitration, but admitted that it had denied George and Thelma's written demand for arbitration. However, in a September 20, 2005 response to a request for admissions, defendant admitted that the arbitration language in the policy stated that either party could unilaterally demand arbitration. And in November 2005, defendant stated that it had "no objection to the matter being submitted to arbitration...."
Because of defendant's initial denial that arbitration was proper, George and Thelma moved the trial court for sanctions against defendant. They claimed that any assertion by defendant that arbitration was not required under the policy was a "frivolous defense."
Following a hearing on February 14, 2006, the trial court entered an order submitting the matter to arbitration, but reserved ruling on George and Thelma's request for sanctions in relation to the few-month delay prompted by defendant's initial opposition to arbitration. Before it would rule on the matter, the court expressly ordered that George and Thelma "shall supply to the Court and to counsel for Defendant its list of costs and expenses, as well as attorney fees[.]" At the motion hearing, George and Thelma's counsel promised to provide the trial court with this information. The trial court's written order, dated March 6, 2006, retained jurisdiction to "enforce compliance and/or make any other determination, orders and/or judgments necessary to fully adjudicate the rights of the Parties herein."
The parties named their respective arbitrators soon after the trial court's written order, but disagreement over the appointment of a third arbitrator brought the proceedings to a grinding halt. The chosen arbitrators could not agree about whom to appoint as the third arbitrator. Neither party took action on the matter for more than six years, until August 13, 2012, when plaintiff moved the trial court to appoint a third arbitrator.4 It is unclear from the record what caused this lengthy delay. During this six-year delay, George and Thelma died, leading to the appointment of plaintiff as personal representative of their respective estates.
The parties finally proceeded to arbitration in October 2013, and the arbitration panel awarded $80,000 to plaintiff for George's injuries and $33,000 for Thelma's injuries. The awards were to be "inclusive of interest, if any, as an element of damages from the date of injury to the date of suit, but not inclusive of other interest, fees or costs that may otherwise be allowable by the Court."
On November 25, 2013, plaintiff moved the trial court for (1) attorney fees and sanctions because of defendant's frivolous defense to arbitration, (2) penalty interest under MCL 500.2006
, part of the Uniform Trade Practices Act (UTPA) (MCL 500.2001 et seq. ) for defendant's failure to promptly pay UIM benefits, and (3) entry of a judgment against defendant on the arbitration award. The trial court denied the motion in all respects, but stated that it "affirmed" the arbitration award. With regard to penalty interest, the court found that the UTPA did not apply to a claim for UIM benefits. Further, even if the UTPA did apply, the language "reasonably in dispute" in MCL 500.2006(4) insulated defendant from having to pay penalty interest. Finally, the trial court ruled that the issue of penalty interest should have been heard before the arbitration panel.
Plaintiff argues that the trial court should have granted sanctions against defendant under MCR 2.114
for initially asserting in its filings with the court that arbitration could not be demanded unilaterally under the insurance policy. The trial court's 2006 order reserved a ruling on attorney fees but required George and Thelma to produce evidence of their attorney fees incurred during the delay caused by defendant's initial refusal to arbitrate. Specifically, the order stated that "Plaintiff shall supply to the Court and to counsel for Defendant its list of costs and expenses, as well as attorney fees[.]" George and Thelma and plaintiff never complied with that order. Indeed, even when plaintiff made a renewed request for sanctions in 2014, he never complied with the trial court's 2006 order to provide proof of his attorney fees incurred during the relevant period. Plaintiff's failure to comply with that order, despite having had years to do so, is tantamount to a waiver of this issue.5 "The usual manner of waiving a right is by acts which indicate an intention to relinquish it, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive." Cadle Co. v. Kentwood, 285 Mich.App. 240, 254–255, 776 N.W.2d 145 (2009)
(citation and quotation marks omitted; emphasis added). Given that plaintiff repeatedly failed to comply with the trial court's order to provide documentation of his attorney fees for the pertinent period, it is difficult to fault the trial court for failing to award those fees as a sanction under MCR 2.114
. Indeed, plaintiff had more than eight years to supply the requested information about fees, but never did so. See Reed Estate v. Reed, 293 Mich.App. 168, 177–178, 810 N.W.2d 284 (2011) (). Plaintiff's failure to act and neglect of the trial court's mandate is tantamount to waiver. See Cadle Co., 285 Mich.App. at 254–255, 776 N.W.2d 145.
Plaintiff argues that it was "impossible" for him to determine the amount of attorney fees to which he was allegedly entitled without waiting for arbitration to conclude. This ignores that the trial court, at the February 14, 2006 motion hearing, asked for the fees to which plaintiff believed he was entitled at that time. Plaintiff's counsel expressly promised to provide that figure. Plaintiff was to submit costs and fees incurred during the time between when defendant answered the complaint and admitted the mistake. There was never an invitation by the trial court to include in the amount of fees requested those fees incurred even after the matter went to arbitration. Any attempt by plaintiff to obtain additional fees ignored the court's order. Moreover, the argument ignores the fact that, even when arbitration was over, plaintiff still failed to provide the trial court information about his...
To continue reading
Request your trial
-
Hart v. State
...203, 205 n. 1, 854 N.W.2d 744 (2014), aff'd on other grounds 499 Mich. 544, 886 N.W.2d 113 (2016) ; Nickola v. MIC Gen. Ins. Co. , 312 Mich. App. 374, 377 n. 2, 878 N.W.2d 480 (2015), rev'd on other grounds 500 Mich. 115, 894 N.W.2d 552 (2017) ; In re Ballard , 323 Mich. App. 233, 235 n. 1,......
-
Nickola v. Mic Gen. Ins. Co.
...that George and Thelma died. Neither death was caused by the injuries suffered in the car accident.12 Nickola v. MIC Gen. Ins. Co. , 312 Mich.App. 374, 387, 878 N.W.2d 480 (2015). The panel further determined that plaintiff's UIM claim was reasonably in dispute. Id . at 388–389, 878 N.W.2d ......
-
Renaissance Recovery Solutions, LLC v. Monroe Guaranty Ins. Co.
...any defense costs and consequential damages." Id. at 361. Defendants would likely counter Stryker by citing Nickola v. MIC Gen. Ins. Co. 878 N.W.2d 480, 485 (Mich. Ct. App. 2015), a recent decision by the Michigan Court of Appeals considering § 500.2006 in the unique context of a claim for ......