          If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
               revision until final publication in the Michigan Appeals Reports.




                       STATE OF MICHIGAN

                        COURT OF APPEALS



RACHEL A. SLOCUM,                                               FOR PUBLICATION
                                                                June 18, 2019
            Plaintiff-Appellant/Cross-Appellee,                 9:05 a.m.

v                                                               No. 343333
                                                                Eaton Circuit Court
FARM BUREAU GENERAL INSURANCE                                   LC No. 2017-000375-NF
COMPANY OF MICHIGAN,

            Defendant/Cross-Plaintiff-
            Appellee/Cross-Appellant,

and

UNITED SERVICES AUTOMOBILE
ASSOCIATION,

            Defendant/Cross-Defendant-
            Appellee/Cross-Appellant.


FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,

            Plaintiff-Appellee/Cross-Appellant,

v                                                               No. 343409
                                                                Eaton Circuit Court
RACHEL A. SLOCUM, Individually and as Next                      LC No. 2017-000188-NF
Friend of NOAH J. SINKE SLOCUM, a Minor,

            Defendant-Appellant/Cross-
            Appellee,

and

CAROLINE SLOCUM, Next Friend and


                                            -1-
Conservator of DRAYKE SLOCUM and DAYJA
SLOCUM, Minors,

               Defendant-Appellant/Cross-
               Appellee.


Before: METER, P.J., and JANSEN and M. J. KELLY, JJ.

METER, P.J.

        In these consolidated cases, the parties challenge the trial court’s orders requiring the
insurers to pay certain survivor’s loss benefits under the no-fault act, as well as penalty interest
and attorney fees. In pertinent part, we are called upon to decide whether a deceased’s
dependents are entitled to the replacement cost of obtaining medical and dental benefits similar
to those provided by the deceased’s former employer or to the monetary value of the premiums
paid by the former employer. Recognizing that the survivor’s loss provisions of the no-fault act
are designed to maintain the deceased’s support of his dependents following his death, we
conclude that the dependents are entitled to the cost of obtaining substantially similar policies to
those provided them by the deceased’s former employer. Finding no errors, we affirm the trial
court’s orders.

                                       I. BACKGROUND

        Robert Slocum was killed in a motorcycle accident on August 4, 2016. At the time of the
accident, Robert1 was married to Rachel Slocum. Rachel is the biological mother of one minor
child, Noah, whom Robert had adopted. Robert also had two minor children—Drayke and
Dayja—from his previous marriage to Amber Floyd. At the time of the accident, all three of
Robert’s children lived with him and Rachel. Rachel and the children depended on Robert for
financial support and medical and dental insurance—among other support—which Robert
received through his employer. Caroline Slocum is Robert’s mother and the children’s paternal
grandmother; David Slocum is the children’s paternal grandfather. Farm Bureau General
Insurance Company and United States Automobile Association insured vehicles involved in the
fatal accident.

        One week after the accident, Caroline filed a petition for guardianship over Drayke and
Dayja. On August 18, 2016, Rachel submitted a claim to Farm Bureau and USAA for no-fault
and survivor’s benefits for her and all three children. Rachel requested that the insurers pay all
benefits to her, indicating that all three children were living with her at the time and submitting
documentation supporting her request for immediate payment of Robert’s monthly after-tax
income, $2,097.33. Rachel also claimed entitlement to lost fringe benefits, including medical
and dental insurance. Farm Bureau requested that Rachel authorize the release of Robert’s


1
 Given that many parties in this case share a common surname, we will use first names in this
opinion where helpful to avoid any confusion.


                                                -2-
medical records, which she completed in late August. The insurers did not immediately pay
Rachel any benefit.

       Then, on October 5, 2016, Rachel sent Farm Bureau a follow-up letter with additional
documentation of Robert’s wages and the medical and dental insurance previously provided by
Robert’s employer. Rachel also included some information regarding the cost for replacing this
insurance for her and each child. The letter indicated that Rachel was not the biological mother
of Drayke and Dayja, whose paternal grandparents had recently been appointed temporary
guardians over them. On October 21, 2016, however, the probate court2 granted Floyd sole legal
and physical custody of Drayke and Dayja and awarded Caroline and David grandparenting time
with the children.

        Farm Bureau requested additional information regarding each dependent’s Social
Security benefits. In a November 16, 2016, letter, Rachel informed Farm Bureau that she was
receiving Noah’s $467 Social Security benefit, that she was not personally receiving any Social
Security benefits, and that Floyd was receiving Drayke and Dayja’s benefits. Rachel did not
provide information regarding the amount of Drayke and Dayja’s Social Security benefits.

        In January 2017, Rachel’s counsel emailed Farm Bureau additional documentation
pertaining to Rachel’s appointment as personal representative of Robert’s estate. The emails
indicate that Drayke and Dayja were currently in Caroline and David’s custody. Approximately
three weeks later, on February 13, 2017, Farm Bureau filed a complaint for declaratory relief,
asking the trial court for a determination of the proper payees of the survivor’s loss benefits and
how to distribute the benefits among Robert’s dependents. The complaint identified Floyd as
Drayke and Dayja’s next friend.

        Farm Bureau acknowledged that it was responsible for paying survivor’s loss benefits
under MCL 500.3108 and agreed that Rachel provided sufficient proof to determine after-tax
income and replacement-services benefits. Farm Bureau alleged, however, that Rachel did not
provide proof of Robert’s employer’s contribution to the medical- and dental-insurance policies
covering Robert and his four dependents or adequate proof of the amount of Social Security
benefits Robert’s dependents’ received. Rachel later filed a complaint against Farm Bureau and
USAA. Rachel alleged that Farm Bureau and USAA failed to pay each dependent the survivor’s
loss benefits and requested penalty interest and reasonable attorney fees connected to the refusal.
The two actions were consolidated by the parties’ agreement.

       In June 2017, Floyd’s attorney contacted counsel for Farm Bureau, indicating that Floyd
was granted custody of Drayke and Dayja that month. Floyd was encouraged to enter her
appearance and participate in the case, but did not do so. In July 2017, the probate court
appointed Caroline as Drayke’s and Dayja’s conservator. Eventually a default judgment was
entered against Floyd and Caroline was appointed next friend for Drayke and Dayja in October
2017. That same month, by Farm Bureau and USAA’s stipulation, the trial court ordered that



2
    The same judge presided over the custody dispute and the instant insurance dispute.


                                                 -3-
each insurer was in equal priority to pay any survivor’s loss benefits owed to Robert’s four
dependents.

         As of late October 2017, however, the insurers claimed that they still did not know how
to apportion the survivor’s loss benefits or who to pay the benefit to, given that Caroline had yet
to file her appearance. The insurers asked the trial court to allow them to pay the total amounts
owed to the trial court until the proper payees and apportionment could be determined. In early
November, Rachel’s counsel entered his appearance as Caroline’s attorney and filed a response
proposing an apportionment of the wage-loss benefits between the four dependents and asking
the trial court to order the insurers to pay the amount necessary for the dependents to obtain
equivalent policies for the dependents. The insurers disagreed, arguing that they were required
to pay only the amount Robert’s previous employer contributed to the medical- and dental-
insurance policies, not the cost to replace the policies. The trial court ordered the insurers to pay
the amounts that were not disputed to the court pending final resolution of the dispute.

       Subsequently, Rachel and Caroline filed a motion for partial summary disposition,
arguing that they were entitled to statutory penalty interest and attorney fees on the overdue
wage benefits. Farm Bureau responded that, while it did not dispute its liability for survivor’s
loss benefits, it should not be liable for statutory interest or attorney fees because it did not know
what benefits to pay to which parties, a question that remained unanswered to date. For its part,
USAA argued that it should not be liable for statutory interest or attorney fees because Farm
Bureau was the lead insurer and because questions still existed regarding what benefits to pay
which parties.

         In December 2017, the trial court apportioned the money the insurers previously paid to
the trial court pursuant to its November 2017 order, with $4,000 in replacement service benefits
and $7,345.38 in lost after-tax wages going to Rachel and $793.38 of lost after-tax wages going
to each of the three children. Then, in January 2018, the trial court addressed the parties’
arguments regarding medical and dental insurance, penalty interest, and attorney fees.

         The trial court determined that the custody issue, which arose after Rachel submitted the
initial claim for benefits, raised a question about who should have been paid benefits on behalf of
Drayke and Dayja, so the trial court limited the award of penalty interest to the first undisputed
payment owed in the amount of $2,097.33. The trial court agreed with the insurers that “the
custody matter complicated this case greatly,” but commented that the custody issue did not arise
until after the original claim was made. The trial court concluded that Farm Bureau was liable
for reasonable attorney fees incurred by Rachel in connection with the initial delayed payment
only.

        Regarding medical and dental benefits, the trial court noted that the custody dispute and
the procurement of separate policies were the result of the deceased’s death and that only one
medical and one dental policy would have been necessary had the accident not occurred. The
trial court concluded that the “contributions of tangible things of value” that each dependent
received from Robert were the actual medical and dental benefits, not the premiums paid for
those benefits. Accordingly, the trial court found that the insurers were liable for the
“replacement cost or expense” to each dependent of “substantially similar” medical and dental
benefits to those they received from Robert.

                                                 -4-
       Farm Bureau, Rachel, and Caroline moved for reconsideration of the trial court’s orders.
This appeal followed the trial court’s denial of those motions.

                                         II. ANALYSIS

       “The goal of the no-fault insurance system [is] to provide victims of motor vehicle
accidents assured, adequate, and prompt reparation for certain economic losses.” Shavers v
Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978). The no-fault act designates
the beneficiaries of personal protection insurance:

               Personal protection insurance benefits are payable to or for the benefit of
       an injured person or, in case of his death, to or for the benefit of his dependents.
       Payment by an insurer in good faith of personal protection insurance benefits, to
       or for the benefit of a person who it believes is entitled to the benefits, discharges
       the insurer’s liability to the extent of the payments unless the insurer has been
       notified in writing of the claim of some other person. If there is doubt about the
       proper person to receive the benefits or the proper apportionment among the
       persons entitled thereto, the insurer, the claimant or any other interested person
       may apply to the circuit court for an appropriate order. The court may designate
       the payees and make an equitable apportionment, taking into account the
       relationship of the payees to the injured person and other factors as the court
       considers appropriate. In the absence of a court order directing otherwise the
       insurer may pay:

                                              * * *

              (b) To the surviving spouse, the personal protection insurance benefits due
       any dependent children living with the spouse. [MCL 500.3112.]

Survivor’s loss benefits payable to a deceased insured’s dependents include the following:

       contributions of tangible things of economic value, not including services, that
       dependents of the deceased at the time of the deceased’s death would have
       received for support during their dependency from the deceased if the deceased
       had not suffered the accidental bodily injury causing death and expenses, not
       exceeding $20.00 per day, reasonably incurred by these dependents during their
       dependency and after the date on which the deceased died in obtaining ordinary
       and necessary services in lieu of those that the deceased would have performed
       for their benefit if the deceased had not suffered the injury causing death. [MCL
       500.3108(1).]

Accordingly, survivor’s loss benefits have two components: “(1) economic loss . . . , which is the
loss of contributions of tangible things of economic value, not including services, and (2)
replacement services costs . . . , which are the expenses, not exceeding $20 a day, reasonably
incurred in replacing ordinary and necessary services.” Wood v Auto-Owners Ins Co, 469 Mich
401; 404; 668 NW2d 353 (2003). “[T]he phrase ‘tangible things of economic value’ refers to
something that is capable of being valued or having its worth ascertained.” Scugoza v Metro
Direct Prop & Cas Ins Co, 316 Mich App 218, 224; 891 NW2d 274 (2016).
                                                -5-
       In this case, the parties agree that Robert’s medical and dental insurance and after-tax
wages constitute “tangible things of economic value” within the meaning of MCL 500.3108(1).
The parties dispute, however, how the insurers were to compensate Robert’s dependents for their
loss of his medical and dental benefits and whether the insurers unjustifiably delayed in
compensating the dependents for Robert’s lost wages. We address each argument in turn.

                           A. MEDICAL AND DENTAL BENEFITS

        The insurers in this case do not dispute that Robert’s dependents were entitled to
compensation for lost medical and dental benefits provided by Robert’s former employer. The
insurers argue, however, that the trial court erred by awarding the dependents the cost of
procuring similar medical and dental policies, i.e., the replacement cost of those policies.
According to the insurers, MCL 500.3108 entitled the dependents only to the amount Robert’s
employer actually contributed to the medical and dental policies, i.e., the prior financial outlay
for those benefits.

       “The primary rule of statutory construction is to effectuate the intent of the Legislature,
and where the statutory language is clear and unambiguous, it is generally applied as written.”
Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 482; 673 NW2d 739 (2003). “Given the
remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the
persons who are its intended beneficiaries.” Frierson v West American Ins Co, 261 Mich App
732, 734; 683 NW2d 695 (2004) (internal citation and block notation omitted).

        As already noted, survivor’s loss benefits payable to a deceased insured’s dependents
include “contributions of tangible things of economic value, not including services, that
dependents of the deceased at the time of the deceased’s death would have received for support
during their dependency from the deceased if the deceased had not suffered the accidental bodily
injury causing death.” MCL 500.3108(1). The insurers argue that our Supreme Court’s opinion
in Miller v State Farm Mut Auto Ins Co, 410 Mich 538; 302 NW2d 537 (1981), entitles
dependents only to the monetary cost of the insurance policies, as paid by the deceased’s former
employer. In the context of deciding whether a survivor’s loss benefit included the deceased’s
gross or after-tax wages, the Miller court explained that “the ‘tangible things of economic value’
which many persons contribute to the support of their dependents include hospital and medical
insurance benefits, disability coverage, pensions, investment income, annuity income and other
benefits.” Id. at 557. Our Supreme Court noted that, by using the broader phrasing of
“contributions of tangible things of economic value,” the Legislature intended to include
“benefits derived for family support from other and different sources” beyond wages and salary.
Id. In other words, “[t]he dollar value of such items as employer-provided medical insurance
coverage, pensions, disability benefits, and other tangible things of economic value that are lost
to the surviving dependents by reasons of the insured’s death must be taken into account” when
determining the survivor’s loss benefit. Id. at 561.

       The parties also discuss this Court’s ruling in Gauntlett v Auto-Owners Ins Co, 242 Mich
App 172; 617 NW2d 735 (2000). The Gauntlett plaintiff was a minor whose mother died after a
car accident. Id. at 174. While living, the plaintiff’s mother derived her income solely as the
beneficiary of a trust, and the plaintiff became the sole beneficiary of that trust after his mother
died. Id. The insurer refused to pay the plaintiff a survivor’s loss benefit, arguing that the

                                                -6-
plaintiff did not demonstrate a loss when he continued to receive payments from the trust. Id.
The plaintiff argued that he suffered a loss in investment income when “the trust corpus was
decreased because of the estate and inheritance taxes, funeral expenses, and bequests.” Id. The
trial court ruled that “the measure of loss was the decrease in the income-producing assets and
not the actual trust disbursements.” Id. at 176. This Court disagreed because the “plaintiff
would not have received these funds if his mother had lived because the trust would have
continued in her name.” Id. at 185. This Court ruled that the difference between the amount of
“support” the plaintiff received from the trust before and after his mother’s death was the proper
measure of the plaintiff’s loss, not the change to the trust corpus. Id. at 186.

        These cases do not directly address the issue at hand. While Miller establishes that MCL
500.3108 entitles survivors to fringe benefits, including the value of medical and dental benefits,
it does not address how to determine the monetary value of these benefits. Rather, in Miller, the
plaintiffs submitted no evidence beyond documentation of the deceased’s wages, so our Supreme
Court concluded that the trial court did not err by limiting the calculated benefit to wages.
Miller, 410 Mich at 560-562. For its part, the factual situation in Gauntlett is unique; the
difficulty in comparing a trust corpus to employer-provided insurance is facially apparent.

       Yet, although these cases do not directly address the issue here, they are helpful to the
extent that they clarify that the central question in any MCL 500.3108 analysis is what the
dependents would have received if the deceased had not died. The goal of the survivor’s loss
provision is to maintain the level of support the survivor received from the deceased, not to
maintain the finances sustaining that support. It is noteworthy that the Legislature chose to
provide compensation for “contributions of tangible things of economic value . . . that
dependents . . . would have received for support during their dependency.” MCL 500.3108(1)
(emphasis added). Had the Legislature intended to continue only the previous financial outlays
through the survivor’s loss benefit, rather than the resulting things those outlays contribute to the
dependent’s support, it would have stated as much.3

        In this case, the tangible thing of economic value was the dependents’ medical and dental
insurance, not the premiums paid for the insurance by Robert’s employer. If Robert had lived
and continued working, his dependents would have continued to receive medical and dental
insurance coverage through Robert’s employer. It is particularly noteworthy that the increased
cost of insurance was a result of Robert’s death; had Robert not been involved in the accident,
the children would have remained in his care and would have been supported by the same
insurance policies. Because the monetary value of the pre-accident premium would have been
insufficient to maintain Robert’s dependents’ level of support after his death, the trial court




3
  That the maintenance of support is the central object of MCL 500.3108 is also made evident by
the fact that the survivor’s benefit is offset by the contribution made to the dependent’s support
by Social Security programs. See Wood, 469 Mich at 404-406. While the total amount of
support remains the same, it is maintained by a conglomerate of contributors following the
deceased’s death.


                                                -7-
properly concluded that the insurers were liable for the cost of coverage substantially similar to
what Robert’s dependents received before Robert died.4

                        B. PENALTY INTEREST AND ATTORNEY FEES

        The parties do not dispute that Robert’s dependents were entitled to compensation for lost
after-tax income. Rather, they dispute whether and when Farm Bureau received reasonable
proof of the fact and amount of the loss sustained. The dependents argue that they are entitled to
statutory interest and attorney fees on the entirety of the refused payments; Farm Bureau avers
that no award of statutory interest or attorney fees was warranted.5 We agree with the trial court
that Rachel was entitled to statutory interest and attorney fees in relation to the first requested
payment, but that the dependents were not entitled to statutory interest and attorney fees in
relation to the remainder of the unpaid benefits.

          The no-fault act provides for interest on overdue benefits as follows:

                 (1) Personal protection insurance benefits are payable as loss accrues.

                  (2) Personal protection insurance benefits are overdue if not paid within
          30 days after an insurer receives reasonable proof of the fact and of the amount of
          loss sustained. If reasonable proof is not supplied as to the entire claim, the
          amount supported by reasonable proof is overdue if not paid within 30 days after
          the proof is received by the insurer. Any part of the remainder of the claim that is
          later supported by reasonable proof is overdue if not paid within 30 days after the
          proof is received by the insurer. . . .

                (3) An overdue payment bears simple interest at the rate of 12% per
          annum. [MCL 500.3142.]

 The penalty interest provision “is intended to penalize an insurer that is dilatory in paying a
claim.” Williams v AAA Michigan, 250 Mich App 249, 265; 646 NW2d 476 (2002). “Penalty
interest must be assessed against a no-fault insurer if the insurer refused to pay benefits,
irrespective of the insurer’s good faith in not promptly paying the benefits. Id.    In addition to
penalty interest, the no-fault act provides for payment of attorney fees for an unjustified refusal:

                 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


4
  The insurers argue that this resolution doubly compensates Robert’s dependents because
Robert’s contribution to their insurance coverage when he was alive came out of his wages, for
which his dependents are also receiving compensation. Robert’s earnings statements show,
however, that his contribution to insurance came out of his pretax income. Because the wage-
loss provided by the insurers only compensates Robert’s dependents for the loss of Robert’s
after-tax wages, there is no double compensation.
5
    USAA did not address this issue in its appellate brief.


                                                   -8-
       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. [MCL
       500.3148(1).]

Attorney fees are not warranted when the benefits “were reasonably in dispute, or, stated slightly
differently, benefits [were] not yet overdue.” Moore v Secura Ins, 482 Mich 507, 519; 759
NW2d 833 (2008). “[A] delay is not unreasonable if it is based on a legitimate question of
statutory construction, constitutional law, or factual uncertainty. When an insurer refuses to
make or delays in making payment, a rebuttable presumption arises that places the burden on the
insurer to justify the refusal or delay.” Attard v Citizens Ins Co of America, 237 Mich App 311,
317; 602 NW2d 633 (1999) (internal citations omitted). The determinative question “is not
whether the insurer ultimately is held responsible for benefits, but whether its initial refusal to
pay was unreasonable.” Ross v Auto Club Group, 481 Mich 1, 11; 748 NW2d 552 (2008).

        The dependents argue that they are entitled to statutory interest and attorney fees on the
entirety of the delayed payments. We disagree. In her initial application for lost after-tax
income, Rachel provided proof of the amount of lost wages, $2,097.33, and supported this
amount with Robert’s last two earnings statements and his tax returns. Rachel also indicated that
all three children were living with her at the time. Farm Bureau does not argue that Rachel failed
to provide adequate proof of the amount of loss; rather, Farm Bureau argues that it could not
reasonably determine to whom it was to pay the benefit because, as indicated on the application,
the children were too close in age to be Rachel’s biological children. The no-fault act, however,
does not require the recipient of insurance disbursements to be the children’s biological parent.
As noted previously, “[p]ersonal protection insurance benefits are payable to or for the benefit of
an injured person or, in case of his death, to or for the benefit of his dependents.” MCL
500.3242(a) (emphasis added). The benefit is payable to the surviving spouse of the deceased
provided only that the deceased’s “dependent children [are] living with the spouse.” MCL
500.3242(b).

        Thus, the fact that a question existed regarding which children were Rachel’s biological
children was not sufficient, on its own, to deny her payment of the benefit. The relevant
question, rather, was whether the children were living with Rachel during the time period
relevant to the request. Regarding the first application for benefits, Farm Bureau has not pointed
to anything that would create a question whether the children were living with Rachel at the
time. Indeed, the parties do not dispute that the children were actually living with Rachel on
September 17, 2016, at which time the 30-day investigatory deadline expired and the first benefit
became due. As recognized by the trial court, the custody dispute did not arise until after the
first benefit was due. Accordingly, we agree with the trial court that Rachel was entitled to
statutory interest for Farm Bureau’s failure to timely pay the first requested benefit and to
attorney fees in relation to this first refusal.

        As for the remainder of the benefit, however, we agree with Farm Bureau that the
insurers did not receive reasonable proof of the proper payees and the amount owed to each
dependent. Beginning with Rachel’s October 5th acknowledgment that Drayke and Dayja were
not her children and were not living with her and continuing throughout the custody dispute and
the initiation of this case, substantial questions surrounded Drayke and Dayja’s legal guardian

                                                -9-
and living arrangements. Indeed, the insurers were not informed that they should pay Drayke
and Dayja’s benefits to Caroline until after the commencement of this suit.

        Moreover, the economic loss component of survivor’s loss benefits must be offset by
Social Security benefits. Wood, 469 Mich at 404-406. Despite requesting benefit information
for all three children, the insurers did not receive information regarding Drayke and Dayja’s
Social Security disbursements until discovery in this case. Therefore, the insurers could not
reasonably determine how to apportion the wage-loss benefit between Rachel and the three
children before the commencement of this suit.

        Accordingly, because questions existed regarding who were the children’s proper payees
and how to apportion benefits between the dependents, we agree with the trial court that the
insurers were not required to pay penalty interest on the remaining requested payments.
Additionally, because the insurers did not unjustifiably refuse the remaining requested payments,
we conclude that the trial court did not err by limiting recovery of attorney fees to those
expended by counsel in relation to payment of the first requested wage-loss benefit. 6

                                      III. CONCLUSION

        The survivor’s loss provisions of the no-fault act are designed to maintain the support an
insured’s dependents received before a fatal accident. When an insured’s death splits custody for
dependents previously covered under a single medical- or dental-insurance policy, the
dependents are entitled to the cost of replacing the coverage they enjoyed before the deceased’s
death, not merely the monetary value of the prior premiums. For the reasons stated in this
opinion, we affirm the trial court’s orders awarding Robert’s dependents the cost of obtaining
substantially similar medical and dental benefits to those that they received from Robert’s
employer and awarding Rachel statutory interest and attorney fees in connection with the
insurers delay in paying the first requested wage-loss benefit.



                                                            /s/ Patrick M. Meter
                                                            /s/ Kathleen Jansen
                                                            /s/ Michael J. Kelly




6
   We disagree with Rachel that she is entitled to attorney fees on the entire case because
separating fees would be “a logistical nightmare.” Attorneys are required to keep regular,
itemized records of the hours expended on a case. Rachel has not shown that it is impracticable
to distinguish between services rendered to recover the first requested payment and those
provided for other purposes or to apportion payment for services rendered for multiple purposes.
We note that the initial unjustified delay makes up the minority of the delayed payments in this
case and that granting Rachel attorney fees on the entire case would effectively give her a
“windfall” when the majority of delays were not unjustified.


                                              -10-
