                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0231p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                Plaintiff-Appellant, -
 STEFANIE SHIELDS,
                                                       -
                                                       -
                                                       -
                                                           No. 05-2346
            v.
                                                       ,
                                                        >
 GOVERNMENT EMPLOYEES HOSPITAL ASSOCIATION, -
                                                       -
                                                       -
 INC. and STATE FARM MUTUAL AUTOMOBILE

                            Defendants-Appellees. -
 INSURANCE COMPANY,

                                                       -
                                                      N
                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
                     No. 03-00395—Wendell A. Miles, District Judge.
                                            Argued: April 25, 2007
                                     Decided and Filed: June 20, 2007
             Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Brent W. Boncher, SCHENK, BONCHER & RYPMA, Grand Rapids, Michigan, for
Appellant. Raymond J. Williams III, HEWSON & VAN HELLEMONT, Warren, Michigan, for
Appellees. ON BRIEF: Brent W. Boncher, Frederick J. Boncher, SCHENK, BONCHER &
RYPMA, Grand Rapids, Michigan, for Appellant. Raymond J. Williams III, Michael M. Carey,
HEWSON & VAN HELLEMONT, Warren, Michigan, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. After suffering severe injuries in an automobile
accident, Stefanie Shields brought a declaratory action against her two insurers, Government
Employees Hospital Association, Inc. (GEHA) and State Farm Mutual Automobile Insurance
Company (State Farm). GEHA initially paid significant sums for Shields’s medical treatment, while
State Farm paid nothing due to a benefits-coordination clause in its policy. Later, however, GEHA
demanded reimbursement from the proceeds that Shields had received in a third-party tort settlement

         *
         The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                          1
No. 05-2346           Shields v. Gov’t Employees Hosp. Assoc., et al.                           Page 2


as a result of the accident. Shields subsequently brought this declaratory action to challenge the
validity of GEHA’s demand for reimbursement or, alternatively, to require State Farm to replace the
amount that she would lose as a result of GEHA’s reimbursement claim.
         Shields’s latter argument prevailed. The district court, however, awarded only a portion of
the attorney fees and none of the “penalty interest” sought by Shields. Specifically, the court
allowed fees only with respect to Shields’s claim against State Farm, excluding her claim against
GEHA. The court, moreover, declined to grant Shields any penalty interest because she had failed
to establish precisely when State Farm’s obligation to pay her became overdue. Shields’s appeal
is limited to the district court’s attorney-fee and penalty-interest determinations. For the reasons set
forth below, we AFFIRM the judgment of the district court.
                                        I. BACKGROUND
A.      Factual background
        The underlying facts are undisputed, as this court noted in State Farm’s earlier appeal in this
matter. Shields v. Gov’t Employees Hosp. Assoc., 450 F.3d 643, 645 (6th Cir. 2006). Briefly
summarized, Shields was severely injured in an automobile accident in February of 2003. Id. A
70-pound piece of steel fell from the back of a truck and crashed into her car, causing Shields
“extensive medical injuries.” Id. At the time of the accident, Shields was covered by both her
mother’s government-employee benefit plan with GEHA and by her mother’s no-fault automobile
insurance policy with State Farm. Id. The State Farm policy coverage for medical expenses and lost
wages, however, was “coordinated.” Id. This meant that, in exchange for a lesser premium, the
policy benefits payable by State Farm were subject to reduction by any amount “paid or payable”
to Shields under any other “individual, blanket or group accident or disability insurance.” Id.
         GEHA paid $162,074 in benefits to cover Shields’s medical expenses. Because GEHA
provides insurance for federal employees under the Federal Employees Health Benefits Act, it is
authorized to seek reimbursement from funds paid to a claimant out of a related tort recovery. Id.
at 648. Although seeking reimbursement from a claimant is contrary to the provisions of Michigan’s
No Fault Insurance Act (MNFIA), federal law preempts Michigan’s statutory scheme. Id. Shields
ultimately obtained a settlement pursuant to her tort claim against the trucking company involved
in her accident. Id. at 645. Neither the amount nor the date of the settlement are set forth in the
record. On April 30, 2003, GEHA filed notice of its lien against any settlement that Shields might
obtain. Shields, in turn, sent a demand letter on May 15, 2003 seeking payment from State Farm
for all of her medical expenses that GEHA had initially covered.
B.      Procedural background
        In June of 2003, Shields filed a lawsuit in federal district court against both GEHA and State
Farm. Jurisdiction was based upon diversity of citizenship. This court, in ruling on State Farm’s
separate appeal from the district court’s summary judgment order, described Shields’s suit as simply
seeking to “clarify all parties’ obligations.” Id. at 645. According to State Farm, however, Shields
took the position that “GEHA was not entitled to reimbursement . . . or alternatively . . . that
[GEHA] must seek payment directly from State Farm.” Shields agrees that she took a position
“questioning the legitimacy of GEHA’s right to seek repayment.” In the alternative, Shields sought
“a decision that State Farm was ultimately liable for the same medical expenses [for which GEHA
paid] and should have paid [her].” GEHA, State Farm, and Shields all filed motions for summary
judgment.
       The district court ultimately granted summary judgment in favor of GEHA, granted Shields’s
motion for summary judgment as against State Farm, and denied State Farm’s motion. Essentially,
the court held that GEHA had properly sought reimbursement out of Shields’s third-party tort
No. 05-2346           Shields v. Gov’t Employees Hosp. Assoc., et al.                            Page 3


recovery, and that this reimbursement triggered State Farm’s obligation to pay Shields under the
latter’s coordinated policy. The court explained that “State Farm may not subtract the amount
initially paid by GEHA for [Shield’s] medical expenses, and repaid by [Shields], from the . . .
insurance benefits it would otherwise be responsible for paying.” Moreover, the district court’s
summary judgment order provided that Shields was entitled to recover attorney fees and 12%
penalty interest on State Farm’s “overdue” payment. State Farm appealed the merits of the district
court’s summary judgment order, but did not address fees or interest. Shields, 450 F.3d at 644. In
June of 2006, this court issued an opinion affirming the district court’s summary judgment
disposition. Id. at 651.
         During the pendency of State Farm’s merits appeal, Shields filed a petition for the payment
of $29,739 in itemized attorney fees and $36,343 in penalty interest. GEHA filed a motion opposing
Shields’s petition, but State Farm did not. The district court granted only the portion of Shields’s
itemized fees that it determined were attributable to her claims against State Farm alone, and
awarded just half of the fees that were attributable to Shields’s claims against GEHA and State Farm
jointly. In total, the court awarded Shields $10,513 in attorney fees. Regarding penalty interest, the
district court awarded nothing at all because, based on the information provided by Shields, “it [was]
impossible for the court to determine when State Farm became liable, and therefore, when it became
dilatory.” Shields subsequently filed a motion for reconsideration, which the district court denied.
The sole issues in the present appeal concern the district court’s determinations regarding attorney
fees and penalty interest.
                                          II. ANALYSIS
A.     Standard of review
        Under both Michigan and federal law, a trial court’s award of attorney fees is generally
reviewed under the abuse-of-discretion standard. Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125
F.3d 308, 312 (6th Cir. 1997); Shanafelt v. Allstate Ins. Co., 552 N.W.2d 671, 675 (Mich. Ct. App.
1996). The district court’s factual determinations, on the other hand, are reviewed under the clearly
erroneous standard, and its legal interpretations are reviewed de novo. Blackard v. Memphis Area
Med. Ctr. for Women, Inc., 262 F.3d 568, 572 (6th Cir. 2001). The substantive issues in this
diversity action are governed by Michigan law. See Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d
445, 449 (6th Cir. 2000) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
B.     Entitlement to attorney fees under § 500.3148
        Michigan law provides that a claimant’s attorney fees “shall be a charge against the insurer
in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay
the claim or unreasonably delayed in making proper payment.” Mich. Comp. Laws § 500.3148(1).
The district court’s initial order granting summary judgment in favor of Shields explained that
       [i]n this case, the facts were not in question and there was no issue of constitutional
       law. Michigan’s Supreme Court had constructed [sic] the relevant statutory
       provision in regard to federal benefits, which is the situation here. State Farm relied
       on a Court of Appeals decision addressing benefits paid by the insured’s employe[r],
       and therefore, not applicable here. In light of the holdings in Sibley and Gunsell, the
       court finds that State Farm’s refusal to reimburse Plaintiff was unreasonable.
       Accordingly, the court awards Plaintiff her reasonable attorney fees and costs
       incurred in bringing this action.
        Although State Farm appealed the district court’s grant of summary judgment, it did not raise
the issue of attorney fees in that appeal. State Farm also failed to respond to Shields’s petition for
attorney fees and interest, even though GEHA objected separately. Shields accurately points out,
No. 05-2346            Shields v. Gov’t Employees Hosp. Assoc., et al.                            Page 4


moreover, that State Farm filed no cross-appeal from the district court’s partial grant of attorney
fees; only Shields presently appeals the partial fee award.
        To the extent that State Farm seeks to argue for the first time on appeal—Shields’s appeal,
no less—for reversal of the fee award based on the reasonableness of its refusal to pay under
§ 500.3148, its argument is not well-taken. See Ford Motor Credit Co. v. Aetna Cas. and Sur. Co.,
717 F.2d 959, 962 (6th Cir. 1983) (quoting Massachusetts Mutual Life Insurance Co. v. Ludwig, 426
U.S. 479, 480 (1976), for the proposition that, in the absence of a cross-appeal, “the appellee may
not attack the decree with a view either to enlarging his own rights thereunder or of lessening the
rights of his adversary”); see also Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir. 1986) (“[T]he
general rule is that this court will not consider issues not raised in the district court.”).
        Even considering State Farm’s reasonableness argument for the limited purpose of refuting
Shields’s claim for an increased award, we conclude that the argument lacks merit. The contention
that State Farm reasonably relied on a single Michigan Court of Appeals decision in refusing to pay
Shields was undercut by this court’s ruling in State Farm’s earlier appeal on the merits. That ruling,
issued after the briefs were submitted in the present appeal, unanimously affirmed the district court’s
partial grant of summary judgment in favor of Shields. Shields, 450 F.3d at 651. In reaching its
conclusion, this court relied primarily on the Michigan Supreme Court’s holding in Sibley v. Detroit
Automobile Inter-Insurance Exchange, 427 N.W.2d 528 (Mich. 1988) (holding that a no-fault
insurer’s payment obligations were triggered when a claimant’s federal insurer, which had initially
paid benefits, sought reimbursement out of the claimant’s tort recovery).
         This court in Shields was split only as to whether the contrary opinion in Dunn v. Detroit
Automobile Inter-Insurance Exchange, 657 N.W.2d 153 (Mich. Ct. App. 2003), upon which State
Farm relied, was either bad law in light of Sibley or simply inapposite. Shields, 450 F.3d at 648-51.
Holding that Dunn conflicted with Sibley, the Shields majority declined to apply it, whereas the
concurring opinion found Dunn to be distinguishable. Id at 651. Regardless of whether Dunn is
contrary to binding precedent or is simply inapposite, however, this court ultimately agreed with the
district court that the Michigan Supreme Court’s decision in Sibley compelled a result favorable to
Shields, and that Dunn was not controlling law. Id. The district court thus did not abuse its
discretion in determining that State Farm’s refusal to pay was unreasonable under § 500.3148.
C.      Amount of attorney fees awarded
        In its partial grant of Shields’s petition for attorney fees, the district court awarded fees only
for the work Shields’s counsel had performed regarding the claim against State Farm. The court
declined to award fees for work performed in relation to Shields’s claim against GEHA, and the
court awarded half of the fees sought in relation to the work that overlapped both claims. Shields
argues on appeal that the district court erred in so apportioning the fees, contending that it instead
should have granted her petition for fees in full, irrespective of the claim to which the work related.
        The district court, in so apportioning Shields’s attorney fees, relied primarily on the plain
language of Mich Comp. Laws § 500.3148, which provides for the availability of attorney fees
pursuant to litigation under the MNFIA. Section 500.3148(1) expressly provides for attorney fees
only “for advising and representing a claimant in an action for personal or property protection
insurance benefits which are overdue.” (Emphasis added.) The district court reasoned that, although
Shields’s claim against State Farm sought benefits “overdue” within the meaning of the statute, her
claim against GEHA simply sought a ruling that GEHA was not entitled to reimbursement out of
Shields’s third-party tort recovery for benefits that it had already paid. This claim against GEHA
clearly falls outside the statutory text that includes only actions for “insurance benefits which are
overdue.”
No. 05-2346           Shields v. Gov’t Employees Hosp. Assoc., et al.                         Page 5


        Shields’s primary argument in response asserts that, because State Farm was the “but-for”
cause of Shields’s litigation against both insurers, her attorney fees for both claims are properly
chargeable to State Farm. This argument at first blush carries some appeal. After all, had State
Farm simply agreed to pay Shields instead of unreasonably refusing to do so, Shields would have
had no reason to object to GEHA’s claim for reimbursement because the entire transaction would
have had no net effect on her recovery. Shields asserts that her claim against GEHA was therefore
simply part and parcel of her response to State Farm’s refusal to pay. In other words, “questioning
the legitimacy of GEHA’s right to seek repayment” was simply another “avenue[] to protect
[Shields]” from her potential loss resulting from State Farm’s action.
        Intertwined with Shields’s but-for argument is her assertion that the spirit or intent of
Michigan’s statutory scheme is designed to protect claimants from bearing the legal costs associated
with recalcitrant insurers or squabbles between insurers. Indeed, Michigan courts have held that the
MNFIA is to be “liberally construe[d]” in favor of intended beneficiaries. Farmers Ins. Exch. v.
AAA of Michigan, 671 N.W.2d 89, 91 (Mich. Ct. App. 2003).
        Shields also relies heavily on Kalin v. Detroit Automobile Inter-Insurance Exchange, 316
N.W.2d 467 (Mich. Ct. App. 1982). In Kalin, the plaintiff was struck by a vehicle while in the
process of entering his own parked delivery truck. Id. at 469-70. The dispute essentially boiled
down to whether Kalin’s insurance carrier or that of the driver who struck him would pay for Kalin’s
medical expenses. Id. at 472-74. Regarding Kalin’s request for attorney fees, the court ultimately
affirmed the trial court’s award of half of Kalin’s attorney fees against each insurer, reasoning that
“[a] claimant who is clearly entitled to no-fault benefits should not be forced to hire an attorney
merely because the circumstances of his accident create problems of priority among insurers.” Id.
at 474. Furthermore, the court explained that “insurance companies can avoid liability for attorney
fees by sharing the payment of such a claimant’s no-fault benefits and then settling their differences
among themselves.” Id.
        Shields’s reliance on Kalin, however, is misplaced. The present dispute, unlike Kalin, is not
simply a fight between two insurers with Shields on the sidelines. State Farm never challenged the
legitimacy of GEHA’s claim against Shields’s recovery. Instead, the only party contesting the
legitimacy of GEHA’s claim was Shields herself, and she lost on that argument. Furthermore,
Shields ultimately cannot overcome the plain statutory language that provides for attorney fees only
in relation to an action for “insurance benefits which are overdue.” Mich. Comp. Laws
§ 500.3148(1). Shields’s claim against State Farm falls within the statutory fee provision, but her
claim that GEHA had no right to reimbursement does not.
        Alternatively, an “action” under § 500.3148(1) could arguably be construed to encompass
both a claim against an insurer for overdue benefits as well as other related claims. The Michigan
Supreme Court, however, implicitly adopted a different view in Proudfoot v. State Farm Mutual
Insurance Co., 673 N.W.2d 739 (Mich. 2003). In Proudfoot, the claimant had been rendered
disabled by an automobile accident and consequently had to retrofit her home to make it wheelchair
accessible. Id. at 740. She later submitted an $815.10 architect’s bill to State Farm, her no-fault
insurer, for preparing building plans. Id. at 741. State Farm, however, denied the claim as an
unreasonable expense under its policy. Proudfoot filed suit in state court before the actual
modification work commenced. Id.
        The Michigan Supreme Court affirmed the lower court’s declaratory judgment that the home
modifications were reasonably necessary and therefore should have been covered by State Farm.
Id. at 743. Regarding attorney fees, however, the Michigan Supreme Court affirmed the lower
court’s grant of fees only with respect to Proudfoot’s claim that State Farm should have covered the
$815.10 architect’s fee, because only that claim was “overdue.” Id. at 744. Other related elements
No. 05-2346           Shields v. Gov’t Employees Hosp. Assoc., et al.                         Page 6


of Proudfoot’s action regarding State Farm’s liability for future expenses, the Court held, did not
fall within the § 500.3148 definition of allowable fees. Id.
         The Michigan Supreme Court has thus differentiated between attorney fees attributable to
recovering “overdue” benefits under § 500.3148 and those attributable to other aspects of the
litigation not covered by that statute. Shields’s attempt to combine the noncompensable work that
her counsel performed in relation to the GEHA claim with the compensable work performed in
relation to the State Farm claim is inconsistent with Michigan law. Moreover, Shields’s policy
arguments notwithstanding, analogous scenarios arise frequently in litigation. A civil rights
plaintiff, for instance, who raises a claim under 42 U.S.C. § 1983 for which attorney fees might be
available often must determine whether to also raise related state-law claims for which fees are
generally not recoverable. Faced with this strategic cost-benefit choice, Shields’s counsel chose to
litigate a flawed claim against GEHA in addition to the meritorious claim against State Farm.
Michigan law does not support awarding Shields her attorney fees in relation to her failed claim that
GEHA was not entitled to reimbursement.
D.     Penalty interest
         As explained above, the district court’s initial order granting summary judgment in favor of
Shields also provided that she was “entitled to interest on the overdue payment at the rate of 12%
per year.” The district court’s subsequent order, however, denied Shields any penalty-interest award
after it concluded that she had not presented adequate information to determine when State Farm
became delinquent on the payment. Ultimately, the district court reaffirmed its decision by denying
Shields’s petition for reconsideration of this issue.
        Under Michigan law, a claimant is entitled to 12% penalty interest on “overdue” benefits.
Mich. Comp. Laws § 500.3142(3). Michigan caselaw employs the term “penalty interest” to
distinguish the high rate of interest recoverable under § 500.3142 from ordinary statutory interest.
See, e.g., Shanafelt v. Allstate Ins. Co., 552 N.W.2d 671, 679 (Mich. Ct. App. 1996) (“[W]e would
note that a plaintiff may recover both statutory and penalty interest.”). Overdue benefits are defined
as benefits “not paid within 30 days after an insurer receives reasonable proof of the fact and of the
amount of loss sustained.” Mich. Comp. Laws § 500.3142(2). Shields petitioned the district court
below for $36,343 in penalty interest. The spreadsheet attached to her petition shows that this sum
is the result of calculating 12% interest on each individually itemized medical treatment billed,
beginning on the date of the particular treatment and running through December 31, 2004.
        Starting the interest calculation from the date on which each medical service was rendered,
however, is unjustified under the circumstances of this case. The only overdue benefit at issue is
the payment that State Farm refused to make in response to GEHA’s reimbursement claim, which
arose long after the treatments. Relying on Shanafelt, Shields argues to the contrary that State
Farm’s obligations arose as it received the medical bills shortly after each treatment was rendered,
and that the action and rights of GEHA are irrelevant. In Shanafelt, the claimant brought suit against
a no-fault liability insurer regarding an “uncoordinated” policy pursuant to which the insurer had
denied a claim for benefits. 552 N.W.2d at 673. The court held that the claimant incurred expenses
as treatment was administered, irrespective of the fact that the claimant’s health insurance policy
was already covering the expenses. Id. at 676.
       Shanafelt, however, is inapposite because, as the court in that case emphasized, “one salient
fact immediately becomes apparent: the instant plaintiff has brought suit against the insurer
providing uncoordinated coverage.” Id. at 678 (emphasis in original). Benefits under an
uncoordinated policy become payable irrespective of another insurer’s rights and actions. In the
present case, however, the State Farm policy was coordinated, meaning that benefits were not
payable at the time the medical care was rendered because they were otherwise covered by GEHA,
No. 05-2346           Shields v. Gov’t Employees Hosp. Assoc., et al.                          Page 7


Shields’s primary insurer. Indeed, had Shields not obtained a third-party settlement from which
GEHA was entitled to recoup the benefits it had paid, State Farm would never have had to pay
Shields any medical benefits at all. See Shields, 450 F.3d at 646 (holding that State Farm’s
obligation to pay arose only because, once GEHA demanded reimbursement, GEHA’s initial
payment to Shields no longer qualified as an “amount paid” under the coordination clause of State
Farm’s policy). Shields’s argument that penalty interest should begin accumulating from the date
that the medical care was administered thus runs contrary to both law and logic.
        The district court ultimately denied Shields’s petition for penalty interest on the ground that
she had not provided “all the necessary figures and dates to determine when, and to what extent,
State Farm’s obligation to reimburse [Shields] arose.” We agree. As explained above, the district
court properly determined that State Farm’s obligation arose as a result of—and thus only
after—GEHA exercised its right to reimbursement by asserting a lien against Shields’s settlement
for a specific amount. The record simply contains no indication of precisely when and in what
amount Shields obtained the settlement funds, nor does it demonstrate when and in what amount
GEHA actually sought reimbursement. Although the record does reflect that GEHA submitted a
notice of its lien on April 30, 2003 against any settlement Shields might receive, this letter provides
no indication of when or if a settlement had been reached, nor of the settlement amount.
        In its denial of Shields’s motion to reconsider, the district court also referred to two other
documents submitted by Shields. First, the court took note of an April 17, 2003 letter from GEHA
stating that its reimbursement lien claim totaled only $1,734.00 at that time, but that GEHA would
continue to update that figure “until settlement.” This letter plainly fails to establish when GEHA
asserted a lien for the full $162,074. Second, the court referenced a demand letter sent by Shields
to State Farm on May 15, 2003 that sought payment of the full amount. As the district court
explained, however, even assuming that a settlement had been reached by the date of Shields’s
demand letter, the extent of GEHA’s actual reimbursement claim at that point (and State Farm’s
resultant obligation) cannot be determined from the record.
        Shields’s extensive briefing on appeal leaves unanswered the question of why, particularly
after the district court denied her petition for penalty interest, she did not simply submit
documentation regarding the date of the settlement agreement and the extent of GEHA’s claim for
reimbursement in her petition for reconsideration. Such documentation would likely have allowed
the district court to determine the proper date from which to begin calculating the penalty interest
that Shields was due. Without establishing the date or dates on which State Farm’s obligation arose,
however, Shields cannot establish when payment became “overdue” for the purpose of calculating
penalty interest under § 500.3142. The district court’s determination that Shields failed to produce
sufficient evidence to ascertain precisely when State Farm’s obligation arose for the purpose of
calculating penalty interest, therefore, was not clearly erroneous.
                                        III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
