                           STATE OF MICHIGAN

                            COURT OF APPEALS



AFFILIATED DIAGNOSTICS OF OAKLAND,                                   UNPUBLISHED
                                                                     May 26, 2016
               Plaintiff-Appellant,

v                                                                    No. 325873
                                                                     Wayne Circuit Court
FARMERS INSURANCE EXCHANGE,                                          LC No. 14-007445-AV

               Defendant-Appellee.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

         Plaintiff appeals by leave granted a circuit court order vacating two orders entered by the
district court in this action under the no-fault act, MCL 500.3101 et seq.1 For the reasons set
forth in this opinion, we affirm in part and reverse in part.

        This appeal arises from a motor vehicle accident involving Aretha Robinson.
Approximately three months after the accident, Robinson saw Dr. Tete Oniang’o, who ordered
MRIs of Robinson’s right shoulder and lumbar spine. The MRIs were performed at plaintiff’s
MRI facility. Plaintiff billed defendant $9,900 for the MRIs ($4,950 for each) and defendant
refused to pay. When asked how he established the rate of $4,950, Dr. Warren Ringold, medical
director for plaintiff testified:

               When I opened my facility in September of 2011 I had Amy Saad who is
       not here today, she’s out. She had a baby last week. That’s why she’s not here. I
       along with her called all the free standing MRI Centers that were in Oakland
       County and we got pricing from them. And we elected to neither be the highest
       price nor the lowest price. We sort of came in the middle. And that’s how we
       established our pricing to begin with. We about a year later changed the price on
       two MRI’s. I left that entirely up to Amy I asked her to periodically call other



1
  The district court granted judgment in favor of plaintiff after a jury trial, awarded attorney fees
in favor of plaintiff, and denied defendant’s motion for judgment notwithstanding the verdict
(JNOV).


                                                -1-
        free standing facilities to see what they were billing to try to keep pace with
        people.

Dr. Ringold testified that his rates were different than that of a hospital radiology group, and
explained:

                Radiologist[s] at a hospital like Beaumont or Oakwood or Providence
        have a captive audience. They have anywhere from 800 to a 1000, two hundred
        doctors who are on staff ordering their MRI’s and their Cat-scans. They’re open
        24 hours a day, 7 days a week year round. And they also receive Federal funding
        and Federal support. So we don’t have that capability. I can’t be open 24 hour
        days, I don’t have captive audience. I have to pay marketers to try to go out and
        see if we can get business from doctors or other clinics. So we can’t compete
        with hospitals in terms of fees. The fees at all free standing clinics in Oakland
        County all are substantially higher than hospitals.

Dr. Ringold testified that his billing is the lowest of the stand-alone facilities in his community
and that a little over a week before trial, Dr. Ringold’s employees called each of the free standing
clinics in Oakland County and obtained their rates. He testified that Oakland MRI charges
$5,400 for an MRI of the lumbar spine and $5,400 for an MRI of the cervical spine; Bio Mag
also charges $5,400 for each; Clear Imaging charges $5,300 for each; Horizon charges $5,300
for each; plaintiff charges $4,950 for each; and Botsford Hospital charges $2,925 for each.
Following trial in district court, a jury returned a verdict in plaintiff’s favor. Thereafter, the
district court denied defendant’s motion for judgment notwithstanding the verdict (JNOV) and
awarded plaintiff attorney fees. Defendant appealed to the circuit court, which reversed the
judgment for plaintiff based on its conclusion that plaintiff failed to establish what circuit court
entitled “its burden of proof” regarding the customariness of plaintiff’s charges. Plaintiff then
filed leave to appeal with this Court, which was granted.2

          I. WHETHER PLAINTIFF FAILED TO ESTABLISH CUSTOMARINESS

        On appeal, plaintiff argues that the customary nature of charges is not part of their prima
facie case. Rather, plaintiff argues, the customary nature of the charges is an affirmative defense
and the defendant must present evidence that the provider charger a different rate for the exact
same services when insurance is not paying the bill. Additionally, plaintiff argues, defendant did
not brief this issue in circuit court, did not argue it before the district court and did not raise it in
oral argument in either the district or circuit court. Therefore, plaintiff argues, defendant has
waived the issue.

        Defendant argues that plaintiff was required to establish that the charges it sought did not
exceed the amount it customarily charges in cases not involving insurance in order to meet
plaintiff’s burden of proof that the charges were reasonable.


2
 Affiliated Diagnostics of Oakland v Farmers Ins Exch, unpublished order of the Court of
Appeals, entered August 14, 2015 (Docket No. 325873).


                                                  -2-
         Our review of the record and case law leads us to conclude that defendant has waived this
issue.

        This Court reviews de novo questions of law, including which party bears the burden of
proof. Pierron v Pierron, 282 Mich App 222, 243; 765 NW2d 345 (2009), aff’d 486 Mich 81
(2010). The issue of waiver is also a question of law reviewed de novo. Electrolines, Inc v
Prudential Assurance Co, Ltd, 260 Mich App 144, 163; 677 NW2d 874 (2003). The trial court’s
factual determinations regarding a waiver claim are reviewed for clear error. Id.

       MCL 500.3107(a) provides, in relevant part, that personal protection insurance 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.

In addition, MCL 500.3157 provides:

                 A physician, hospital, clinic or other person or institution lawfully
         rendering treatment to an injured person for an accidental bodily injury covered
         by personal protection insurance, and a person or institution providing
         rehabilitative occupational training following the injury, may charge a reasonable
         amount for the products, services and accommodations rendered. The charge
         shall not exceed the amount the person or institution customarily charges for like
         products, services and accommodations in cases not involving insurance.

“[W]hether there has been an impermissible § 3157 overcharge is determined by looking to the
provider’s customary charge ‘in cases not involving insurance.’” Hofmann v Auto Club Ins
Ass’n, 211 Mich App 55, 104; 535 NW2d 529 (1995). This Court has stated that the provider
bears the burden of proving the reasonableness and the customariness of its charges. In Munson
Med Ctr v Auto Club Ins Ass’n, 218 Mich App 375, 385; 554 NW2d 49 (1996), this Court, citing
Nasser v Auto Club Ins Ass’n, 435 Mich 33, 49; 457 NW2d 637 (1990) stated: “[Plaintiff] bears
the burden of proving both the reasonableness and the customariness of its charges . . . .” Thus,
plaintiff’s contention that customariness is an affirmative defense is not supported by case law.
In fact, our Supreme Court and this Court have both held that plaintiff bears the burden of
proving both reasonableness and the customariness of the charges. Accordingly, the circuit court
did not err when it concluded that plaintiff had the burden of proof on this issue. However, such
a finding does not end our inquiry. Although plaintiff had the burden of proving the
customariness of its charges, the circuit court erred by reversing on the ground that plaintiff
failed to establish its burden. This Court has stated:

         [I]nvited error is typically said to occur when a party’s own affirmative conduct
         directly causes the error. Under the invited-error doctrine, appellate relief is
         generally not available because “when a party invites the error, he waives his right
         to seek appellate review, and any error is extinguished.” A related rule is that
         error requiring reversal may only be predicated on the trial court’s actions and not
         upon alleged error to which the aggrieved party contributed by plan or negligence.

                                                 -3-
       [Moody v Home Owners Ins Co, 304 Mich App 415, 438-439; 849 NW2d 31
       (2014) (citations and quotation marks omitted).]

        In this case, defendant initially asserted in its affirmative defenses that the benefits
claimed were not customary and argued in its opening statement that plaintiff had to prove that
the charges were customary. However, it did not argue the issue of customariness in its motion
for a directed verdict or closing argument. There was also no instruction to the jury on
customariness, and defense counsel stated his satisfaction with the instructions. Further, there
was no question regarding whether the charges were customary on the special verdict form. The
verdict form did ask whether the charges were reasonable, but reasonableness and customariness
are separate inquiries. Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 257 Mich
App 365, 376; 670 NW2d 569 (2003), aff’d 472 Mich 91 (2005) (“AOPP”). See also, Nasser,
435 Mich at 49. Thus, the jury was not asked to decide the customariness issue. Defendant did
not raise the issue until its motion for JNOV. Even then, however, defendant did not expressly
argue that plaintiff failed to show that its charges were the same as those charged in cases not
involving insurance. Rather, as the circuit court acknowledged, it was the circuit court that first
focused on the insurance comparison. Moreover, at the time that defendant filed its motion for
JNOV, the issue was already waived. We therefore conclude following our review of the record
that customariness was not a contested issue at trial and by failing to contest the issue at trial,
defendant invited or contributed to the error it now alleges.3 Accordingly, the circuit court erred
by reversing on the ground that plaintiff failed to establish the customariness of the charges.

               II. WHETHER ALTERNATIVE GROUNDS TO AFFIRM EXIST

         Defendant contends that this Court should affirm the circuit court’s decision on the
alternative grounds that (1) Dr. Oniang’o’s discovery-only deposition was improperly presented
to the jury, Dr. Oniang’o was not qualified to offer an expert opinion in this matter, and without
his testimony plaintiff could not meet its burden of proof; (2) plaintiff failed to establish that the
MRI services were incurred by Robinson; and (3) plaintiff failed to establish that the charges
were reasonable. We disagree with each of these claims.

        “This Court reviews a trial court’s decision to admit evidence for an abuse of discretion;
however, when the trial court’s decision involves a preliminary question of law, such as whether
a statute precludes the admission of evidence, a de novo standard of review is employed.”
Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 275-276; 730 NW2d 523 (2006).


3
  In so ruling, we emphasis that we are cognizant that plaintiff still possessed the burden to
establish the customariness of the charges. Dr. Ringold’s testimony, as quoted above, satisfied
plaintiff’s burden. Additionally, defendant did not refute Dr. Ringold’s testimony relative to the
issue of customariness. This Court observed in Munson, 218 Mich App at 386-386 an almost
identical fact pattern. In Munson, defendants ACIA argued on appeal that plaintiff Munson had
failed to meet its burden of proving customariness. In rejecting ACIA’s claim, this Court held:
“On the other hand, ACIA did not provide documentary evidence that identified specific facts to
show that there was a dispute of material fact over whether the charges for medical services were
Munson’s customary charges.” We find an almost identical factual situation in this case.


                                                 -4-
“An abuse of discretion occurs when the court’s decision results in an outcome that falls outside
the range of principled outcomes.” Epps v 4 Quarters Restoration LLC, 498 Mich 518, 528; 872
NW2d 412 (2015).

       This Court reviews “de novo a trial court’s ruling on a motion for JNOV. A motion for . .
. JNOV should be granted only if the evidence viewed in [the light most favorable to the
nonmoving party] fails to establish a claim as a matter of law.” Zaremba Equip, Inc v Harco
Nat’l Ins Co, 302 Mich App 7, 15; 837 NW2d 686 (2013) (citations and quotation marks
omitted).

                      A. DR. ONIANG’O’S DEPOSITION TESTIMONY

        In support of its argument that Dr. Oniang’o’s discovery-only deposition was not
properly admitted at trial, defendant relies on this Court’s decision in Petto v Raymond Corp,
171 Mich App 688; 431 NW2d 44 (1988). In Petto, the plaintiff argued that the trial court
abused its discretion by excluding a deposition from trial. Id. at 690. This Court disagreed,
stating that the parties understood that the deposition had been noticed for the purpose of
discovery, and the defendant believed the witness would testify at trial where the defendant
would have the opportunity to cross-examine him regarding his opinion and other matters. Id. at
692. The defendant argued that it had “conducted extensive preparations to cross-examine [the
witness] at trial based on what it learned from him in the discovery deposition.” Id. at 691-692.
This Court stated that the plaintiff should have noticed the deposition for use at trial and,
although the defendant did not seek or obtain a protective order, such a request would have only
been required had the plaintiff noticed the deposition to be used at trial and the defendant wanted
the deposition to be used only for the purpose of discovery. Id. at 692.

        MCR 2.302(C)(7), pertaining to protective orders, allows a party to obtain an order “that
a deposition shall be taken only for the purpose of discovery and shall not be admissible in
evidence except for the purpose of impeachment.” MCR 2.308(A) provides that “[d]epositions
or parts thereof shall be admissible at trial or on the hearing of a motion or in an interlocutory
proceeding only as provided in the Michigan Rules of Evidence.” MRE 804(b)(5) is an
exception to the hearsay rule for deposition testimony where the declarant is unavailable; it
provides:

              Deposition Testimony. Testimony given as a witness in a deposition taken
       in compliance with law in the course of the same or another proceeding, if the
       party against whom the testimony is now offered, or, in a civil action or
       proceeding, a predecessor in interest, had an opportunity and similar motive to
       develop the testimony by direct, cross, or redirect examination.

The definition of “unavailable” includes where the declarant “is absent from the hearing and the
proponent of a statement has been unable to procure the declarant’s attendance . . . by process or
other reasonable means . . . .” MRE 804(a)(5).

       Plaintiff does not dispute that Dr. Oniang’o’s deposition was noticed for discovery
purposes only. Plaintiff did not notice the deposition to be used at trial and defendant, therefore,
was not required to seek a protective order. See Petto, 171 Mich App at 692. Nonetheless, we

                                                -5-
disagree with defendant’s suggestion that there is a blanket prohibition on the use of discovery-
only depositions at trial. In Petto, this Court applied the abuse of discretion standard and
concluded that the defendant did not have an opportunity to cross-examine the witness on certain
matters. Id. at 690-693. There is no court rule that expressly excludes from trial depositions that
are noticed for discovery purposes only, and MCR 2.308(A) provides that depositions shall be
admissible at trial as provided in the Michigan Rules of Evidence. Thus, the circuit court
properly considered whether the deposition testimony was admissible under the hearsay
exception for deposition testimony, MRE 804(b)(5). Moreover, MRE 804(b)(5) involves a
similar consideration as in Petto, i.e., whether the party against whom the testimony is offered
had an opportunity and similar motive to develop the testimony.

         The circuit court properly found that Dr. Oniang’o was unavailable under MRE 804(a)(5)
because he was subpoenaed and failed to appear at trial.4 Both courts also found that defendant
had a sufficient opportunity to examine Dr. Oniang’o at the deposition. Defendant argued in the
circuit court, however, that it would have asked Dr. Oniang’o about his qualifications in order to
attempt to establish that he did not have the expertise to render an opinion regarding whether the
MRI services were necessary. But in the deposition testimony presented at trial, defendant asked
Dr. Oniang’o about his qualifications, and Dr. Oniang’o testified that he was a medical doctor
(M.D.), he was not board-certified, his specialty was in non-surgical trauma, and he did not have
hospital privileges. In closing, defendant argued that Dr. Oniang’o was not a specialist. Unlike
the defendant in Petto, 171 Mich App at 691-692, defendant did not argue in the district court
that he extensively prepared to cross-examine Dr. Oniang’o at trial based on matters learned at
the deposition. To the extent defendant would have showed that Dr. Oniang’o did not complete
a residency and was reprimanded, the jury could still have found that the MRIs were reasonable
and necessary, as discussed below. Under the facts of this case, the district court did not abuse
its discretion in admitting the deposition testimony of Dr. Oniang’o at trial.

        Defendant also contends that Dr. Oniang’o could not be qualified as an expert to testify
regarding whether the MRIs were reasonable and necessary. Plaintiff, however, did not seek to
qualify Dr. Oniang’o as an expert at trial, and defendant did not argue at trial that Dr. Oniang’o’s
deposition testimony should be excluded because he was not an expert. Defendant raised this
issue for the first time in its motion for JNOV. Nonetheless, this Court has held that “direct and
circumstantial evidence, and permissible inferences therefrom, may be considered by the jury to
determine whether there is sufficient proof that the expenses were both reasonable and
necessary.” Kallabat v State Farm Mut Auto Ins Co, 256 Mich App 146, 152; 662 NW2d 97
(2003). In Kallabat, this Court concluded that the plaintiff was not required to provide direct
testimony from his treating doctors that every expense was reasonable and necessary. Id. This
Court also did not say that the treating physician had to be qualified as an expert, or that expert
testimony was required.




4
 Defendant does not argue on appeal, and has never argued, that the deposition was not taken in
compliance with the law. See MRE 804(b)(5).


                                                -6-
        In this case, Dr. Oniang’o was an M.D., who specializes in non-surgical trauma, and was
Robinson’s treating physician. He testified that he examined Robinson and prescribed the MRIs
based on her complaints of pain, decreased range of motion, and weakness, and in order to rule
out a tear in her shoulder. He also testified that he does not send patients to another doctor until
he determines what it going on with the patient. Dr. Ringold testified that while the MRI of the
lumbar spine did not reveal an acute injury, the MRI of the shoulder revealed a tear. Viewing
this evidence in the light most favorable to plaintiff, the jury could find that the MRIs were
reasonable and necessary. Therefore, the district court properly denied defendant’s motion for
JNOV on this ground, and the circuit court properly affirmed that decision.

                  B. WHETHER THE MRI EXPENSES WERE INCURRED

        The Michigan Supreme Court has held that “[t]o ‘incur’ means ‘[t]o become liable or
subject to, [especially] because of one’s own actions.’” Proudfoot v State Farm Mut Ins Co, 469
Mich 476, 484; 673 NW2d 739 (2003) (citation omitted). Although Robinson did not testify that
she underwent the MRIs or became liable for the expenses, Dr. Oniang’o testified that he ordered
the MRIs, Dr. Ringold testified regarding his records of Robinson coming to plaintiff’s facility,
Dr. Ringold had the prescription from Dr. Oniang’o, and Dr. Ringold had the results of the
MRIs. There was also express testimony from Dr. Ringold that Robinson had an MRI of her
lumbar spine. Plaintiff also billed defendant for the MRIs. Based on this evidence, the jury
could find that the expenses for the MRIs were incurred.

              C. WHETHER PLAINTIFF’S CHARGES WERE REASONABLE

       This Court stated in AAOP, 257 Mich App at 376, that “the ‘customary charge’ limitation
in § 3157 and the ‘reasonableness’ language in § 3107 constitute separate and distinct limitations
on the amount health-care providers may charge and what insurers must pay with respect to
victims of automobile accidents who are covered by no-fault insurance.” This Court further
held:

       [T]he “customary” fee a particular provider charges under § 3157 does not define
       what constitutes a “reasonable charge” under § 3107. Rather, the “customary fee”
       is simply the cap on what health-care providers can charge, and is not,
       automatically, a “reasonable” charge requiring full reimbursement under § 3107.
       [Id. at 377 (citation omitted).]

This Court also stated:

       [T]he statute requires that an insurer only pay on behalf of the insured a
       “reasonable” charge for the particular product or service. However, the
       Legislature has not defined what is “reasonable” in this context, and,
       consequently, insurers must determine in each instance whether a charge is
       reasonable in light of the service or product provided. It may be that a health-care
       provider’s “customary” charge is also reasonable given the services provided,
       while at other times the “customary” charge may be too high, and thus
       unreasonable. Either way, the trier of fact will ultimately determine whether a
       charge is reasonable. [Id. at 379 (citation omitted).]

                                                -7-
In rejecting the plaintiff’s argument that insurers must pay the customary charges without regard
to the reasonableness of the charges, this Court explained that such “argument would, in essence,
allow health-care providers to unilaterally determine the ‘reasonable’ charge to be paid by the
insurer by establishing their own customary charges.” Id. at 375, 377.

        Plaintiff relies on Dr. Ringold’s testimony regarding plaintiff’s fees for MRIs compared
to the fees charged by other facilities in Oakland County. According to Dr. Ringold’s testimony,
plaintiff’s prices were lower than the other facilities, except Botsford Hospital, which he testified
was not a free-standing facility and could not be used for comparison. Defendant contends that
this testimony regarding plaintiff’s prices compared to other facilities could not alone establish
reasonableness. However, evidence of what other facilities in the area charge for similar services
is relevant to whether charges are reasonable. See Hardrick v Auto Club Ins Ass’n, 294 Mich
App 651, 669; 819 NW2d 28 (2011) (concluding that the rates charges by an agency to provide
attendant-care service is relevant to the reasonable rate charged by a relative caregiver). See also
Manley v Detroit Auto Inter-Ins Exch, 127 Mich App 444, 455; 339 NW2d 205 (1983),
remanded by 425 Mich 140 (1986) (stating that “comparison to rates charged by institutions
provides a valid method for determining whether the amount of an expense was reasonable and
for placing a value on comparable services performed by [family members]”).5 And even if
there was no evidence of plaintiff’s customary charge, which would be the cap on what plaintiff
could reasonably charge, defendant waived the customariness issue. Based on Dr. Ringold’s
testimony, the jury could find that the charges were reasonable.6

            III. WHETHER THE AWARD OF ATTORNEY FEES WAS PROPER

        Finally, plaintiff contends that the district court properly awarded attorney fees, and the
circuit court erroneously reversed that decision based on the customariness issue. Defendant
contends that this Court should affirm the circuit court’s decision on the attorney fees issue based
on the alternative ground that defendant produced evidence revealing legitimate questions of
factual uncertainty. We agree with both parties and conclude that although the circuit court
erroneously reversed the district court’s award of attorney fees based on its ruling on the
customariness issue, there are alternative grounds to affirm the circuit court’s decision.




5
  In Douglas v Allstate Ins Co, 492 Mich 241, 275-276; 821 NW2d 472 (2012), the Michigan
Supreme Court held that it is “[t]he compensation actually paid to caregivers who provide similar
services,” not the agency rate, that is relevant to the determination of a reasonable charge for
services by family members.
6
  Plaintiff also relies on the testimony of defendant’s claims representative, Nicole Sanders that a
bill from plaintiff in another case for the same type of MRI as performed in this case was
recommended for payment in the amount of $3,829. Although defendant claims this is not
relevant, it does not argue that the testimony was improperly admitted, and the jury could find
that the charges were reasonable even without this testimony.


                                                -8-
        In Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008), our Supreme Court
stated the standard of review in a case involving the assessment of attorney fees under MCL
500.3108 as follows:

               The Court reviews de novo issues of statutory interpretation. The trial
       court’s decision about whether the insurer acted reasonably involves a mixed
       question of law and fact. What constitutes reasonableness is a question of law,
       but whether the defendant’s denial of benefits is reasonable under the particular
       facts of the case is a question of fact. This Court reviews de novo questions of
       law, but we review findings of fact for clear error. A decision is clearly erroneous
       when the reviewing court is left with a definite and firm conviction that a mistake
       has been made. Moreover, we review a trial court’s award of attorney fees and
       costs for an abuse of discretion. An abuse of discretion occurs when the trial
       court’s decision is outside the range of reasonable and principled outcomes.
       [Citations and quotation marks omitted.]

       MCL 500.3148(1) provides:

              An attorney is entitled to a reasonable fee for advising and representing a
       claimant in an action for personal or property protection insurance benefits which
       are overdue. The attorney’s fee 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.

In Moore, 482 Mich at 517, the Court stated:

       MCL 500.3148(1) establishes two prerequisites for the award of attorney fees.
       First, the benefits must be overdue, meaning “not paid within 30 days after [the]
       insurer receives reasonable proof of the fact and of the amount of loss sustained.”
       MCL 500.3142(2). Second, in postjudgment proceedings, the trial court must
       find that the insurer “unreasonably refused to pay the claim or unreasonably
       delayed in making proper payment.” MCL 500.3148(1). Therefore, assigning the
       words in MCL 500.3142 and MCL 500.3148 their common and ordinary
       meaning, “attorney fees are payable only on overdue benefits for which the
       insurer has unreasonably refused to pay or unreasonably delayed in paying.”
       [Last citation omitted.]

        “[A]n insurer’s refusal to pay benefits is not unreasonable [i]f the insurer’s refusal or
delay in payment is the product of a legitimate question of statutory construction, constitutional
law, or a bona fide factual uncertainty.” Moore, 482 Mich at 520 (citation and quotation marks
omitted). “The plain language of MCL 500.3101 et seq. does not impose an independent duty on
insurers to ‘go beyond’ the medical opinion of their physicians and the IMEs that those
physicians perform.” Id. at 522. Rather, “[t]he determinative factor in our inquiry is not whether
the insurer ultimately is held responsible for benefits, but whether its initial refusal to pay was
unreasonable.” Id. (citation and quotation marks omitted).




                                                -9-
        In Bonkowski v Allstate Ins Co, 281 Mich App 154, 172; 761 NW2d 784 (2008), the jury
returned a verdict in favor of the plaintiff and found that the benefits were more than 30 days
overdue. This Court concluded that, while the trial court stated that it found that the defendant
unreasonably refused to make proper payment, it did not make any factual findings supporting
that conclusion. Id. Rather, it appeared that the trial court “only considered the jury’s
conclusion that [the plaintiff’s father] was entitled to greater compensation than that offered by
defendant.” Id. This Court held that the trial court clearly erred by simply basing its conclusion
on the jury’s verdict. Id.

         In this case, defendant does not dispute that the benefits were not paid within 30 days
and, thus, were overdue. However, defendant argues that its refusal to pay was reasonable. The
district court found that the jury had determined that defendant should not have denied the claim
and, therefore, it concluded that plaintiff was entitled to attorney fees. Similar to the trial court
in Bonkowski, the district court clearly erred by relying solely on the jury’s verdict and, instead,
was required to consider whether there were bona fide factual uncertainties. See Moore, 482
Mich at 520.

        We conclude as a matter of law that defendant satisfied its burden of establishing that its
refusal to pay plaintiff was based on bona fide and legitimate factual uncertainties. See
Bonkowski, 281 Mich App at 172. Defendant’s claims representative, Nicole Sanders, testified
that she recommended sending the case to an independent medical doctor because the accident
was very low impact, Robinson’s primary care doctor did not recommend further treatment,
there were inconsistencies in the records, and because of the length of time between the accident
and Robinson’s treatment. Dr. Daniel Ryan reviewed the records in February 2013 and
concluded that the MRIs were not reasonably necessary. He also performed an independent
medical examination in July 2013 and concluded that the MRIs were not reasonably necessary.
Defendant was not required to reconcile the conflicting medical opinions. Moore, 482 Mich at
521-522. Based on the records and Dr. Ryan’s opinions, defendant had bona fide factual
uncertainties. Thus, although the circuit court reversed based on its erroneous ruling on the
customariness issue, its decision to reverse the award of attorney fees was proper because
defendant’s refusal to pay was not unreasonable.

      Affirmed in part and reversed in part. Neither party having prevailed in full, no costs are
awarded. MCR 7.219. We do not retain jurisdiction.



                                                              /s/ Donald S. Owens
                                                              /s/ Stephen L. Borrello
                                                              /s/ Cynthia Diane Stephens




                                                -10-
