                          STATE OF MICHIGAN

                           COURT OF APPEALS



DIANE BRADY, as Guardian of THOMAS                                  UNPUBLISHED
ROBERT MIDDLETON,                                                   June 21, 2016

               Plaintiff-Appellant,

v                                                                   No. 324864
                                                                    Oakland Circuit Court
HOME-OWNERS INSURANCE COMPANY,                                      LC No. 2012-128435-NF

               Defendant-Appellee.


Before: MURRAY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

        Plaintiff, as guardian of her son, Thomas Robert Middleton, brought this action for
recovery of 24-hour attendant care no-fault benefits. Following a trial, a jury concluded that
plaintiff was entitled to a reasonable hourly daytime rate of $11.44, the rate then paid by
defendant, Home-Owners Insurance Company, but found that the hourly nightly rate of $7.40
paid by defendant was unreasonable, and awarded a reasonable hourly nighttime rate of $11.44.
The difference in the nighttime rates between October 2011 and May 31, 2014, resulted in a
judgment of $27,317.69 in favor of plaintiff. At trial, plaintiff asserted that $30 an hour was the
reasonable rate for the 24-hour attendant care services provided to her son in light of his
behavioral and cognitive injuries caused by a traumatic brain injury sustained in an automobile
accident. Plaintiff now appeals as of right. We affirm in part, reverse in part, and remand for a
new trial consistent with this opinion.

                                I. FACTS AND PROCEEDINGS

        In August 2011, 18-year-old Thomas Middleton (“Tommy”) suffered a traumatic brain
injury in an automobile accident. Before the accident, Tommy had been diagnosed with
Asperger’s syndrome and attention deficit/hyperactivity disorder (ADHD). Following the
accident, Tommy required an extensive stay in both a hospital and rehabilitation facility.
Doctors determined that a home setting was more beneficial than an institutional setting.
Tommy was ultimately discharged to plaintiff’s home, but his doctor prescribed 24-hour
attendant care. Plaintiff established a corporate entity that employed family members and a close
friend to care for Tommy. Tommy’s cognitive deficits also caused anger management, impulse,
and safety issues, and triggers for those issues included alteration in scheduling and unfamiliar



                                                -1-
events. Consequently, the caregivers had to recognize Tommy’s triggers and act accordingly.
Tommy’s home care was supplemented by various therapies that occurred outside the home.

       Because the 24-hour attendant care prescription did not contain specific direction,
defendant’s representative determined that it was the lowest level of supervision required and
could be fulfilled by a home health aide. Thus, the rate for the service was paid at $11.44 for
daytime hours and $7.40 for nighttime hours.

       Although Tommy had a case manager, plaintiff was a registered nurse and she performed
some of the functions of a case manager. She attended all of Tommy’s doctor appointments and
scheduled, coordinated, and provided direction to all of Tommy’s caregivers. The home
business plaintiff established managed the appropriate deductions and payroll for Tommy’s
caregivers. The caregivers were paid $10.00 an hour because that was all plaintiff could afford
and did not include any payment to plaintiff. However, plaintiff did not submit a request for
payment as a case manager, registered nurse, or business to defendant.

        After this action was filed, Tommy’s doctor altered the prescription for 24-hour attendant
care to provide that he needed a behavioral technician or life skills trainer, not a home health
aide. Although plaintiff presented evidence that supported a range of hourly rates for the
position, she requested $30 an hour at trial. Defendant disputed that a change in rate was
warranted, particularly because Tommy’s caregivers did not have specialized medical training,
and plaintiff acknowledged that the behavioral training therapy was paid for by defendant
outside the home setting. Ultimately, the jury concluded that $11.44 was a reasonable rate for
the attendant care on a 24-hour basis.

                                          II. ANALYSIS

       Plaintiff first argues that the trial court erred by instructing the jury that agency rates for
similar attendant care services were not relevant and by failing to instruct the jury that
comparable agency rates was an appropriate consideration. A claim of instructional error is
reviewed de novo, but the trial court’s determination whether a jury instruction is applicable and
accurate is reviewed for an abuse of discretion. Alfieri v Bertorelli, 295 Mich App 189, 197; 813
NW2d 772 (2012). Whether a supplemental jury instruction is warranted is also reviewed for an
abuse of discretion. Guerrero v Smith, 280 Mich App 647, 660; 761 NW2d 723 (2008). An
abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable
and principled outcomes. Nelson v Dubose, 291 Mich App 496, 500; 806 NW2d 333 (2011).

        “Jury instructions are reviewed in their entirety to determine whether they accurately and
fairly presented the applicable law and the parties’ theories.” Guerrero, 280 Mich App at 660.
The instructions should not omit material issues, defenses, or theories that are warranted by the
evidence. Ward v Consol Rail Corp, 472 Mich 77, 83-84; 693 NW2d 366 (2005). “When the
standard jury instructions do not adequately cover an area, the trial court is obligated to give
additional instructions when requested, if the supplemental instructions properly inform the jury
of the applicable law and are supported by the evidence.” Bouverette v Westinghouse Electric
Corp, 245 Mich App 391, 401-402; 628 NW2d 86 (2001). A supplemental instruction must be
modeled as nearly as possible to the style of the standard jury instructions and must be “concise,
understandable, conversational, unslanted, and nonargumentative.” Id. at 402.

                                                 -2-
        A no-fault claim requires an insured to establish that he or she is entitled to benefits for
accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor
vehicle. Cooper v Auto Club Ins Ass’n, 481 Mich 399, 407; 751 NW2d 443 (2008). Personal
injury protection benefits are payable for allowable expenses incurred for reasonably necessary
products, services, and accommodations for the injured person’s care, recovery, or rehabilitation.
MCL 500.3107(1)(a). The plaintiff must prove that the charge for the service was reasonable,
the expense was reasonably necessary, and it was incurred. Williams v AAA Mich, 250 Mich
App 249, 258; 646 NW2d 476 (2002).

        Attendant care services need not be performed by trained medical personnel. Van Marter
v American Fidelity Fire Ins Co, 114 Mich App 171, 180; 318 NW2d 679 (1982). In Hardrick v
Auto Club Ins Ass’n, 294 Mich App 651, 665; 819 NW2d 28 (2011), this Court held that “the
market rate for agency-provided attendant-care services bears relevance to establishing a rate for
family-provided services.” In Douglas v Allstate Ins Co, 492 Mich 241, 276; 821 NW2d 472
(2012), our Supreme Court concluded that a fact-finder should focus on the individual’s
compensation, holding “that a fact-finder may base the hourly rate for a family member’s
provision of attendant care services on what health care agencies compensate their employees,
but what health care agencies charge their patients is too attenuated from the appropriate hourly
rate for a family member’s services to be controlling.” Although the Douglas Court recognized
that it was not addressing an admissibility issue, id., at 276 n 79, it nonetheless acknowledged
that admission of an agency rate may be helpful in calculating a rate, though it could not be
uncritically adopted. Id. at 276. Importantly, the Court stated that an agency rate may be
relevant particularly when “the individual caregiver has overhead and administrative costs
similar to those of a commercial agency.” Id.

       Plaintiff requested a jury instruction that allowed the jury to consider agency rates as
evidence of an appropriate rate for the family members’ care for Tommy. However, contrary to
the holding in Hardrick and the statements in Douglas, the trial court precluded the jury from
considering any evidence of rates charged by agencies:

               “Reference to rates charged by agencies to insurers or other entities (with
       regard to similar attendant care services as those being provided to Middleton) are
       irrelevant and should not be considered as part of your decision on an appropriate
       hourly rate (for such care).”

This instruction was provided, despite the fact that Hardrick stated that agency rates are at least a
minimally relevant factor for a jury to consider in a home attendant care situation, and Douglas’s
specific reference to admissibility of agency rates when a party (as plaintiff testified to at trial)
has overhead costs similar to that of a commercial agency. As defendant acknowledges on
appeal1, this was error. Hence, as to the issue of the appropriate rate for family members


1
  “The trial record admittedly contains some evidence from which the jury could have concluded
that ‘the individual caregiver has overhead and administrative costs similar to those of a
commercial agency.’ Id. Thus, Defendant concedes that Plaintiff’s ‘agency rates’ instruction
would have been permissible.”


                                                -3-
providing home attendant care services to Tommy, the trial court erred in instructing the jury that
agency rates were irrelevant2 and not to be considered, and in refusing to instruct as plaintiff
requested on that issue.

        Defendant argues that this instructional error was harmless because “the jury
unmistakably rejected Plaintiff’s home business theory.” We cannot accept that argument
because it would have been very difficult—if not impossible—for the jury to accept plaintiff’s
theory when the court instructed it not to consider the exact evidence that would have allowed
plaintiff to succeed on that theory. Nor do we agree with defendant that plaintiff’s alleged failure
to request reimbursement from defendant for these business related expenses bars these claims.
Plaintiff is not seeking reimbursement of those specific costs, but is instead seeking a higher rate
for attendant care services, in part because of those business costs. And obtaining a higher rate
for attendant care is exactly what was at issue. We therefore reverse and remand for a new trial
only on the issue of the appropriate rate for Tommy’s attendant care services.3 We now turn to
several evidentiary issues that may arise again at trial.

        Plaintiff argues that the trial court erred by excluding evidence of plaintiff’s earnings as a
registered nurse when her training was an integral part of Tommy’s care, recovery, and
rehabilitation. A trial court’s decision to exclude evidence is reviewed for an abuse of discretion,
but any preliminary questions of law are reviewed de novo. Barnett v Hidalgo, 478 Mich 151,
158-159; 732 NW2d 472 (2007). An abuse of discretion occurs when the decision falls outside
the range of reasonable and principled outcomes. Id. at 158.

       Although plaintiff did not specifically raise in the final pretrial order the issue that
nursing services were required and that the $30 an hour sought was consistent with the wage of a
nurse, Wilhelm v Mustafa, 243 Mich App 478, 485; 624 NW2d 435 (2000), even if she did
through several broad statements about attendant care and reference to her part-time nursing job,
we nonetheless find no abuse of discretion in the trial court’s ruling. For one, the trial court did
not abuse its discretion by holding that the evidence of plaintiff’s wage as a nurse was not
relevant, MRE 401; MRE 402; Omian v Chrysler Group LLC, 309 Mich App 297, 308; 869
NW2d 625 (2015), because the issue for trial was essentially whether Tommy’s attendant care
providers should be paid at the rate of a home health aide or the higher rate of a life skills trainer
or behavioral technician.




2
 Though this evidence should have been presented to the jury, it does not, of course, have to be
accepted by the jury.
3
 This holding does not apply to plaintiff’s argument on appeal regarding compensation for case
management services, for as defendant argues, those expenses were not at issue in this case. In
plaintiff’s complaint, the joint final pretrial order, and in plaintiff’s opening statement, all that is
placed at issue is the appropriate rate for Tommy’s attendant care services. Additionally, it was
undisputed that Tommy had a case manager regardless of the role plaintiff voluntarily took in her
child’s care.


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        Even if it was an abuse of discretion, it was harmless, because the jury was aware of
plaintiff’s employment and she argued that her nursing skills were necessary to Tommy’s proper
care. Plaintiff testified that she was a registered nurse, continued to work on a part-time basis,
and delineated her extensive involvement with Tommy’s care. Defendant, of course, argued that
Tommy’s attendant care did not require a nursing degree, and so a higher rate was not
necessitated simply because plaintiff was also a practicing nurse. As a result, the jury had
evidence on this issue such that it could have provided a higher rate if it determined such was
need for Tommy’s care. It did not. Under the circumstances, no error requiring reversal exists
on this issue.

         Plaintiff next argues that the trial court erred in using defendant’s modified verdict form
at trial. Whether a special verdict form may be submitted to the jury is within the trial court’s
discretion. In re Portus, 142 Mich App 799, 803-804; 371 NW2d 871 (1985). An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. D’Alessandro Contracting Group, LLC v Wright, 308 Mich App 71, 76;
862 NW2d 466 (2014).

       Plaintiff requested that the following verdict form be submitted to the jury:

              We, the jury, make the following answers to the questions submitted by
       the Court:

                                   ALLOWABLE EXPENSES

              QUESTION NO. 1: What is the amount of allowable expenses owed to
       the plaintiff (include only expenses not already paid by the defendant from
       August 24, 2011, through the present)?

               $__________.

                                           INTEREST

              QUESTION NO. 2: Was payment for any of the expenses or losses to
       which the plaintiff was entitled overdue?

        (Payment for an expense or loss is overdue if it is not paid within 30 days after
       the defendant receives reasonable proof of the fact and the amount of the claim.
       An overdue claim bears interest at the rate of 12 percent per annum from the date
       the expense or loss became overdue.)

               A. Answer: ___(yes or no)

               B. If your answer is “yes”, what is the amount of interest owed to the
       plaintiff on overdue benefits (include only interest not already paid by the
       defendant)? $__________.

      Defendant requested the following verdict form, which the circuit court concluded was
more applicable to the evidence presented at trial, and thus gave it to the jury:

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       We, the jury, make the following answers to the questions submitted by
the Court:

 ALLOWABLE EXPENSES

       (Allowable expenses consist of all reasonable charges for reasonably
necessary products, services, and accommodations for the plaintiff’s care,
recovery, or rehabilitation.)

       QUESTION NO. 1: Beginning in October, 2011 through May 31, 2014 is
the daytime hourly rate that has been paid by Home-Owners for attendant care
services being provided to and for the benefit of Thomas Middleton reasonable?

       A. Answer: ___(yes or no)

       B. If your answer is “yes”, go on to Question No. 2. If your answer is
“no”, what is the reasonable daytime hourly rate for the attendant care services
being provided to and for the benefit of Thomas Middleton?

       $__________.

        QUESTION NO. 2: Beginning in October, 2011 through May 31, 2014
is the nighttime hourly rate that has been paid by Home-Owners for attendant care
services being provided to and for the benefit of Thomas Middleton reasonable?

       A. Answer: ___(yes or no)

       B. If your answer is “yes”, go on to Question No. 3. If your answer is
“no”, what is the reasonable nighttime hourly rate for the attendant care services
being provided to and for the benefit of Thomas Middleton.

       $__________.

  INTEREST

 (Payment for an expense or loss is overdue if it is not paid within 30 days after
the defendant receives reasonable proof of the fact and the amount of the claim.
An overdue claim bears interest at the rate of 12 percent per annum from the date
the expense or loss became overdue.)

       QUESTION NO. 3: Was payment for any of the expenses or losses to
which the plaintiff was entitled overdue?

       A. Answer: ___(yes or no)

        B. If your answer is “yes,” what is the amount of interest owed to the
plaintiff on overdue benefits (include only interest not already paid by the
defendant)?

                                       -6-
               $__________

        The standard jury form, MI Civ JI 67.01 sets forth the allowable expenses and interest
inquiry as set forth by plaintiff, but also addressed benefits that were not at issue, such as work
loss, replacement service expenses, and survivor’s loss that both parties had omitted from their
respective verdict forms. The use note accompanying the jury verdict form provides, in pertinent
part:

               Omit any questions that are not at issue, such as whether the injuries arose
       out of the ownership, operation, maintenance, or use of a motor vehicle, and any
       benefits that are not claimed by the plaintiff.

              This Special Verdict Form may have to be modified where there are
       questions involving coordination of benefits, governmental setoffs, or other issues
       arising under the no-fault statutes that are not specifically addressed by the
       format set forth. [Emphasis added.]

       MCR 2.515 governs special verdicts and provides, in relevant part:

               (A) Use of Special Verdicts; Form. The court may require the jury to
       return a special verdict in the form of a written finding on each issue of fact,
       rather than a general verdict. If a special verdict is required, the court shall, in
       advance of argument and in the absence of the jury, advise the attorneys of this
       fact and, on the record or in writing, settle the form of the verdict. The court may
       submit to the jury:

               (1) written questions that may be answered categorically and briefly;

             (2) written forms of the several special findings that might properly be
       made under the pleadings and evidence; or

              (3) the issues by another method, and require the written findings it deems
       most appropriate.

              The court shall give to the jury the necessary explanation and instruction
       concerning the matter submitted to enable the jury to make its findings on each
       issue.

        A general verdict form does not delineate the facts, the law, or the application of the law
to the facts. Sahr v Bierd, 354 Mich 353, 364; 92 NW2d 467 (1958). Conversely,

       [t]he special verdict form compels detailed consideration. But above all it enables
       the public, the parties and the court to see what the jury really has done. The
       general verdict is either all wrong or all right, because it is an inseparable and
       inscrutable unit. A single error completely destroys it. But the special verdict
       enables errors to be localized so that the sound portions of the verdict may be
       saved and only the unsound portions be subject to redetermination through a new
       trial. [Id. at 365 (citation omitted).]

                                                -7-
A special verdict form is not warranted when the case is not so complex that there would be a
necessity to submit special findings of fact. Danaher v Partridge Creek Country Club, 116 Mich
App 305, 320; 323 NW2d 376 (1982).

        Here, the parties submitted competing verdict forms. Plaintiff’s form mirrored the
language of the jury verdict form contained in the civil jury instructions. However, defendant’s
proposed form was narrowly focused on whether the rates already provided were reasonable.
Pursuant to MCR 2.515 and In re Portus, 142 Mich App at 803-804, the trial court had the
discretion to provide a special verdict form to the jury. Although a close call due to the narrow
questions contained in the special verdict form, we cannot conclude that the trial court abused its
discretion in using that form at the original trial. Defendant’s modification merely
acknowledged that there existed separate day and nighttime rates. It is possible that the language
contained in the special verdict form addressing the different rates reminded the jury of this fact
and allowed the jury to make its award in the bifurcated way rates had been determined.

       Because we are vacating the award and remanding for a new trial as specified in this
opinion, we need not address plaintiff’s final argument that the trial court erred in denying her
request for a new trial on the basis that the jury’s verdict was contrary to the great weight of the
evidence.

        Affirmed in part, reversed in part, and remanded for a new trial consistent with this
opinion. No costs, neither party having prevailed in full. MCR 7.219(A). We do not retain
jurisdiction.



                                                             /s/ Christopher M. Murray
                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Michael J. Riordan




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