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STATE OF MICHIGAN
COURT OF APPEALS


JESSICA VILLANUEVA, Plaintiff-Appellant, v

UNPUBLISHED January 31, 1997

No. 180623 Houghton Circuit Court LC No. 92-7731-CK

ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

JESSICA VILLANUEVA, Plaintiff-Appellee, v No. 180735 Houghton Circuit Court LC No. 92-7731-CK

ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

Before: Gribbs, P.J., and MacKenzie and Griffin, JJ. PER CURIAM. This case concerns plaintiff's claims for a total of $61,402.59 in no-fault first-party benefits allegedly due from defendant. The trial court directed a verdict in favor of plaintiff in the amount of $20,713.40 for five unpaid medical bills. A jury then returned a verdict in favor of plaintiff in the amount of $1,309.02 for unpaid medical expenses, $3,489.70 in penalty interest, and $7,058.41 for work loss. Plaintiff was thus awarded a total of $29,080.83 in unpaid benefits, plus $3,489.70 in penalty interest, and a judgment in the overall amount of $32,570.53 was entered in her favor. The trial court subsequently awarded plaintiff $3,150.71 in costs and attorney fees. Plaintiff appeals as of right from

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the judgment, and defendant appeals as of right from the order awarding attorney fees. We affirm in both cases. Plaintiff was involved in an automobile accident and subsequently suffered various health problems. Although defendant no-fault insurer paid certain medical and work loss benefits, it denied coverage for treatment of plaintiff's temporomandibular joint disorder on the ground that it was a pre existing condition. Defendant also refused to make certain payments for work loss and for some expenses associated with treatment of plaintiff's other health problems, including doctor bills, prescriptions, and travel expenses. This lawsuit followed. Plaintiff first argues that defense counsel denied her a fair trial when he improperly commented in his closing argument on the trial court's failure to fully grant plaintiff's motion for a directed verdict, implying that the trial court must not have thought that plaintiff had a worthwhile case. However, our examination of the record reveals that defense counsel was actually responding to plaintiff's counsel's own closing commentary and plaintiff therefore may not predicate error on these statements. Joba Construction Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 636; 329 NW2d 760 (1982). Plaintiff also argues that the trial court erred in denying her motion for a directed verdict regarding her entitlement to twelve percent penalty interest under MCL 500.3142; MSA 24.13142. The error, if any, was harmless. The jurors were specifically instructed that they could award twelve percent simple interest on the $20,713.40 directed verdict amount, as well as on any amount they awarded plaintiff for unpaid benefits. They ultimately determined that plaintiff was entitled to an additional $8,367.43 in unpaid medical and work loss benefits, for a total of $29,080.83 in unpaid benefits. Twelve percent of that total is $3,489.70

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