On March 7, 2008 the world changed overnight for Michigan attendant care lawyers, the catastrophically injured and attendant care providers. For the first time, the Michigan Supreme Court has extended the definition of “incurred” to include attendant care in a case called Burris v. Allstate Insurance Company. Burris has the potential to wipe out hundreds of pending attendant care cases and jeopardize this important no fault benefit for many seriously injured people who currently depend upon it.
In Burris, the attendant care providers testified that they did not expect to be compensated for the services they provided. The Court therefore indicated that because the people providing care did not expect to be compensated, the attendant care services they were providing were not “incurred.” In other words, without the expectation of compensation by the auto insurance company, the attendant care services were found, for the first time in any case involving attendant care in Michigan, to not be “incurred.”
Michigan law requires all no fault benefits to be reasonable, necessary, related to the motor vehicle accident, and “incurred.”
Practice Tip for Michigan Attendant Care Lawyers:
Insurance defense lawyers always ask family members questions in depositions to lead these people to testify, as they did in Burris, that they would be providing attendant care services regardless of payment, because of the love between family and the desire to help someone that they love. It is an unfair question – and now it is also a very dangerous one. Of course a spouse will still take care of a seriously injured loved one whether they are paid or not. Burris shows just how dangerous it can be for people providing attendant care services to testify without careful deposition preparation by an experienced no fault attorney.
Attendant care providers must now clearly state that they know about attendant care as a lawful Michigan no fault insurance benefit, and they expect to be compensated for providing it – even if the care is being provided to a loved one or close friend. The point behind attendant care provided by family members is that an auto insurance company should not reap a windfall because someone who was catastrophically injured in a car accident is fortunate enough to have loving family to help provide care. In cases where people have no family, or where the family is unable to provide attendant care, an insurance company in Michigan is required to pay an outside agency to send nurses to come to an injured person’s home to provide attendant care.
Records should be kept and regularly maintained and submitted to the auto insurance company responsible for providing the attendant care payments.
Lawyer Practice Tip:
Attendant care lawyers must remember that the real opinion is only a paragraph long. The vast majority of the decision is written by Justice Corrigan. This part of the opinion is only a concurrence that no other Justice signed onto. When confronted by an insurance company defense lawyer saying attendant care services are not “incurred” in a pending no fault attendant care case, it should be argued that Corrigan’s opinion has no binding effect.
Nevertheless, Burris has been reversed by the Michigan Supreme Court. The trend is troubling for lawyers who litigate attendant care no fault cases. Expect the incurred argument to now be raised in other types of no fault cases – whether for medical services, replacement services, home modifications, or van modifications.