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STATE OF MICHIGAN COURT OF APPEALS
___________________________________________ In re Estate of JUNE ANN BERGER.

PATRICIA GORMELY PRINCE, Conservator of the ESTATE of JUNE ANN BERGER, Petitioner-Appellee, v

UNPUBLISHED March 17, 2000

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent-Appellant.

No. 212683 Washtenaw Circuit Court Probate and Family Division LC No. 95-107773-CV

Before: Neff, P.J., and Murphy and J. B. Sullivan*, JJ. PER CURIAM. Respondent-appellant State Farm Mutual Insurance Company (State Farm) appeals as of right from the decision of the Washtenaw Circuit Court, Probate and Family Division, ordering State Farm to assume responsibility for the attorney fees incurred by petitioner-appellee Estate of June Ann Berger in a custody action filed in Washtenaw Circuit Court by the alleged biological father of Berger's child. We reverse. The facts in this case are not in dispute. In 1977, as a result of an auto accident, then-sixteen year-old June Ann Berger suffered a closed head injury, which caused long-term physical and mental problems. At the time of the accident, Berger was insured by her parents' no-fault auto insurance policy issued by State Farm. The record does not indicate further details of the next approximately fifteen years, except that a spendthrift trust, supervised by the Oakland Circuit Court, had been established and was operated for Berger's benefit. The record does indicate, however, that on March

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Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1

16, 1992, Berger gave birth to a child allegedly fathered by forty-nine year-old James Horton, Jr., who was living with Berger at the time, attending college and doing volunteer work. In April 1995, attorney Patricia Gormely Prince was appointed successor trustee of the spendthrift trust. Prince was asked to distribute some of the trust funds for Berger's child, but could not do so because the trust allowed Prince to distribute funds only for Berger's support, not for the support of the child. During the fall of 1995, Prince discovered that, while she was paying Berger's rent, Blue Cross, utilities and the like, Berger also was receiving $550 monthly in social security disability benefits, which, unlike the trust funds, could be used to support Berger's child. Because Prince could not coordinate the use of those social security funds for the support of either Berger or Berger's child from her position as trustee, Prince petitioned the Washtenaw Probate Court to appoint a conservator. Following a hearing, the court found that a conservator was needed and, on October 24, 1995, appointed Prince to that position. Meanwhile, in June 1995, shortly after Prince had been appointed successor trustee of the spendthrift trust supervised by the Oakland Circuit Court, Horton, the alleged biological father of Berger's child, who had by this time been asked by Berger to vacate the residence, filed a petition in Washtenaw Circuit Court seeking custody of the then-three year-old child. He claimed that Berger was physically and mentally unable to care for the child due to the injuries she suffered in the 1977 auto accident. Prince, as Berger's conservator, hired counsel to represent Berger in the custody matter and incurred legal fees in the defense of that action, which ultimately was successful. On January 22, 1998, Prince petitioned the Washtenaw Probate Court, renamed the circuit court, probate and family division, for an order requiring State Farm to reimburse Berger for past and future legal fees related to her defense of the child custody dispute. Prince argued that these legal fees were related to Berger's "care, recovery or rehabilitation" because the child custody dispute arose only as a result of Berger's mental and physical injuries sustained in the auto accident. Therefore, Prince argued, State Farm was required to reimburse Berger for those legal fees under the Michigan No-Fault Insurance Act, MCL 500.3107(1)(a); MSA 24.13107(1)(a). State Farm argued that legal fees incurred defending a child custody matter are not reasonably necessary charges incurred for an injured person's "care, recovery or rehabilitation" and are therefore non-recoverable from the insurer under the statute. The court, which by this time had had the case since 1995, disagreed with State Farm and, on June 1, 1998, ordered State Farm to pay Berger's legal defense fees. Interpretation of the Michigan no-fault insurance act is a question of law subject to de novo review on appeal. Putkamer v Transamerica Ins Corp, 454 Mich 626, 631; 563 NW2d 683 (1997). Because the act is remedial in nature, it must be liberally construed in favor of the persons intended to benefit from it. Turner v Auto Club Ins Ass'n, 448 Mich 22, 28; 528 NW2d 681 (1995). The act provides in pertinent part: (1) Except as provided in subsection (2), personal protection insurance benefits are payable for the following:

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(a) Allowable expenses consisting of all reasonable charges incurred for the reasonably necessary products, services and accommodations for an injured person's care, recovery or rehabilitation. [MCL 500.3107(1)(a); MSA 24.13107(1)(a).] Three factors must be met for an item to be considered an "allowable expense" under this statute: (1) the charge must be reasonable; (2) the expense must be reasonably necessary; and (3) the expense must be incurred. McKelvie v Auto Club Ins Ass'n, 203 Mich App 331, 335; 512 NW2d 74 (1994). In this case, only the second factor, whether the expense was reasonably necessary, is at issue. The burden of proof regarding whether a particular expense is reasonably necessary lies with the plaintiff. Owens v Auto Club Ins Ass'n, 444 Mich 314, 323-324; 506 NW2d 850 (1993); Hoffmann v Auto Club Ins Ass'n, 211 Mich App 55, 94; 535 NW2d 529 (1995). In Heinz v Auto Club Ins Ass'n, 214 Mich App 195; 543 NW2d 4 (1995), relied on by both the trial court and Prince on appeal, this Court considered whether guardian or conservator fees are "allowable expenses" under MCL 500.3107(1)(a); MSA 24.13107(1)(a). In that case, the insurer provided no-fault benefits to a motorist who was incapacitated by injuries suffered in an auto accident. Id. at 196. Due to the motorist's incapacitation, the plaintiff was appointed as his guardian and conservator. Id. The insurer argued that the "plain meaning" of

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