Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  December 1, 2010                                                                        Marilyn Kelly,
                                                                                              Chief Justice

  138602                                                                           Michael F. Cavanagh
                                                                                     Maura D. Corrigan
  CATHERINE WILCOX, individually, and as                                            Robert P. Young, Jr.
                                                                                    Stephen J. Markman
  Next Friend of ISAAC WILCOX, a minor,                                             Diane M. Hathaway
               Plaintiffs-Appellants,                                              Alton Thomas Davis,
  and                                                                                              Justices

  SUNRISE HOME HEALTH SERVICES, INC.,
            Intervening Plaintiff,
                                                         SC: 138602
  v                                                      COA: 290515
                                                         Kent CC: 08-010129-NF
  STATE FARM MUTUAL AUTOMOBILE
  INSURANCE COMPANY,
             Defendant-Appellee.
  _______________________________________/

                               AMENDMENT TO ORDER

          On order of the Court, this Court’s November 9, 2010 order is amended, to correct
  a clerical error, and reads as follows:

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered, the order of April 16, 2010 which
  granted leave to appeal is VACATED and leave to appeal is DENIED because we are no
  longer persuaded the questions presented should be reviewed by this Court.

        CAVANAGH, J. (dissenting).

         I respectfully dissent from this Court’s order vacating its prior order and denying
  leave to appeal. Because I believe that Hoover v Mich Mut Ins Co, 281 Mich App 617,
  630-631 (2008), erroneously limits a no-fault insurer’s liability for an allowable expense
  to only that portion of the expense that is solely attributable to the accidental bodily
  injury, I would vacate the Court of Appeals order and remand to the trial court for further
  proceedings.

        In 2004, Isaac Wilcox, then four years old, was left a quadriplegic as the result of
  an automobile accident. The Wilcox family, who originally lived in an apartment,
  subsequently purchased a handicap-accessible home to accommodate Isaac’s needs.
                                                                                            2

Plaintiffs filed a first-party no-fault action against defendant, their no-fault automobile
insurance carrier at the time of the accident, seeking payment for Isaac’s home
accommodations. The trial court granted partial summary disposition in favor of
defendant based on the Court of Appeals interpretation in Hoover of Griffith v State Farm
Mutual Automobile Ins Co, 472 Mich 521 (2005). This Court granted leave to appeal,
asking the parties to address, in part, whether, or to what extent, defendant is required to
pay personal protection insurance benefits under the no-fault act, MCL 500.3101 et seq.,
for housing expenses and accommodations associated with Isaac’s care. 486 Mich 870
(2010).

        In Griffith, a majority of this Court held that the expense of ordinary food
provided in a noninstitutional setting to a person injured in a motor vehicle accident was
not recoverable under the no-fault act because the plaintiff failed to establish that her
husband’s ordinary food expenses were causally connected to her husband’s injury under
MCL 500.3105(1), and that her husband’s ordinary, everyday food expenses were for his
care, recovery, or rehabilitation under MCL 500.3107(1)(a). Griffith, 472 Mich at 524,
530-532, 535-536. The majority reasoned that the plaintiff failed to meet its causal-
connection requirement because the plaintiff did not claim that her husband’s diet was
“different from that of an uninjured person, that his food expenses [were] part of his
treatment plan, or that the[] costs [were] related in any way to his injuries.” Id. at 531.
Similarly, the Griffith majority reasoned that the food costs were not related to the
accident victim’s “care, recovery, or rehabilitation,” because there was no evidence that
the plaintiff’s husband required different food than he did before sustaining his injuries.
Id. at 536.

         In Hoover, the Court of Appeals examined to what extent housing expenses were
recoverable under the no-fault act. In holding that Griffith “suggests” that an insurer is
not obligated to pay those expenses that ordinarily would have been incurred in the
course of a life unmarred by an accident, the Hoover panel found “crucially important” a
rhetorical question regarding housing needs posed in one passage from Griffith, which
asked whether a defendant would be obligated to pay an injured person’s housing needs
once the person is released from institutional care if the housing needs were not affected
by that person’s injuries. Hoover, 281 Mich App at 627. See, also, Hoover, 281 Mich
App at 630-631 (stating that Griffith suggests that a court must allocate the portion of a
bill attributable to the injured person’s use that is only occurring because of his injuries).

       Although I continue to believe that Griffith was wrongly decided, see Griffith, 472
Mich at 542-554 (Kelly, J., dissenting), even under the Griffith majority’s erroneous
interpretation of the relevant statutory provisions, I believe that the Hoover panel erred by
hinging its analysis on the majority’s rhetorical question rather than considering the
majority opinion as a whole. Notably, the Griffith majority did not hold that if its
requirements were met, only the marginal increase in the cost of an injured person’s food
would be an allowable expense. In fact, the majority opinion strongly implies otherwise.
                                                                                                                3

See id. at 535-538, (suggesting that if the plaintiff’s husband was required to eat “special
diet” food, no-fault benefits would have covered those food costs without any reductions
for the plaintiff’s pre-injury food needs).1 See, also, id. at 535 n 12 (stating that the costs
of “special shoes” would be an “allowable expense” under MCL 500.3107(1)(a) and not
suggesting that only the marginal costs of modifying regular shoes would be
recoverable).

       Further, Griffith did not purport to overrule caselaw from the Court of Appeals and
this Court that seemingly rejected the allocation-of-costs approach adopted in Hoover.
See, e.g., Davis v Citizens Ins Co of America, 195 Mich App 323, 326-328 (1992)
(holding that the full purchase price of a modified van was an allowable expense); Sharp
v Preferred Risk Mut Ins Co, 142 Mich App 499, 510-512 (1985) (holding that as long as
larger and better equipped housing was required for an injured person than would be
required if he were not injured, the full cost is an allowable expense). Cf. Miller v State
Farm Mut Auto Ins Co, 410 Mich 538, 567-570 (1981) (rejecting the idea that survivors’
loss benefits under MCL 500.3108 should be reduced by a decedent’s purely personal
expenses because, in addition to the statute’s legislative history, reducing survivors’
benefits by a decedent’s “consumption factor” would be difficult to calculate and would
defeat the no-fault act’s goals of minimizing factual disputes and expeditious reparation
of injuries).

       Accordingly, I would hold that the Hoover panel erred in interpreting Griffith to
require an allocation-of-costs analysis. Further, I would conclude that, even under the
majority position in Griffith, if a plaintiff establishes that the injured person’s housing
needs are causally connected to his injuries under the reasoning employed by the Griffith
majority, see Griffith, 472 Mich at 531-532, the trier of fact should generally be permitted
to determine, under § 5107(1)(a), to what extent a handicap accessible family home is a
reasonably necessary accommodation for the particular injured person’s care, recovery,
or rehabilitation, and whether the incurred expense was reasonable. See Nasser v Auto
Club Ins Ass’n, 435 Mich 33, 55 (1990) (stating that whether expenses are reasonable and
reasonably necessary is generally one of fact for the jury). Because I believe that Hoover
was wrongly decided, I respectfully dissent from this Court’s order vacating its prior
order and denying leave to appeal.

       KELLY, C.J., and HATHAWAY, J., join the statement of CAVANAGH, J.

1
 Indeed, even the Hoover panel recognized this as such. See Hoover, 281 Mich App at
627 n 5, 634-635.



                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 1, 2010                    _________________________________________
        1123                                                                  Clerk
