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STATE OF MICHIGAN
COURT OF APPEALS


JOSEPH STOOPS, Personal Representative of the Estate of KRISTIN STOOPS, Plaintiff-Appellee/CrossAppellant/Cross-Appellee, v FARM BUREAU INSURANCE COMPANY, Defendant-Appellant/CrossAppellee/Cross-Appellant.

UNPUBLISHED March 23, 2006

No. 260454 Wayne Circuit Court LC No. 02-233990-CZ

JOSEPH STOOPS, Individually and as Personal Representative of the Estate of KRISTIN STOOPS, Plaintiffs-Appellants, v FARM BUREAU INSURANCE COMPANY, Defendant-Appellee. No. 261917 Macomb Circuit Court LC No. 02-004556-CZ

Before: Cooper, P.J., and Jansen and Markey, JJ. PER CURIAM. The parties in Docket 260454 appeal and cross-appeal the trial court's rulings granting attorney fees to both parties pursuant to MCL 500.3148 following a mixed jury verdict. Defendant also claims the trial court denied it a fair trial by placing time limits on the presentation of its defense to plaintiff's claims for personal protection insurance benefits arising out of an automobile accident. We affirm in part and reverse in part.

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In Docket 261917, plaintiffs appeal by right the trial court's order granting summary disposition to defendant on the basis of plaintiffs' concealment, misrepresentation, or fraud regarding the claim in Docket 260454 voided defendant's underinsurance coverage. We affirm. I. Docket 260454 Plaintiff Kristen Stoops1 filed an action in Wayne Circuit Court on September 25, 2002 seeking personal protection insurance benefits for attendant care under MCL 500.3107(1)(a) and reimbursement for medical expenses arising out of injuries received in a March 28, 1998 automobile accident. Plaintiff was driving a one-ton Ford F-350 pickup truck insured by defendant in the name of S & S Mason, Inc., a business of plaintiff's husband, Joseph Stoops. A van pulling out of a drive struck the pickup. By outward appearances, the accident was relatively minor. Plaintiff stated at the time that she hurt her left wrist but refused medical treatment. In her a claim for no-fault benefits, plaintiff asserted that during the accident she reached over with her right hand to protect her passenger son while turning the steering wheel sharply with her left, and in doing so, hyperextended her left wrist. Before the accident, plaintiff was already being treated for pain in her left shoulder, elbow and wrist. These injuries apparently arose out of repetitive movements during plaintiff's work at an envelope factory. After the accident, Dr. Robert Salaman2 treated plaintiff's wrist conservatively with ice packs and anti-inflammatory drugs. When plaintiff continued to complain of pain in her wrist, Dr. Salaman referred her to Dr. Stephen DeSilva, an orthopedic surgeon. Dr. DeSilva performed arthroscopic surgery on May 29, 1998. Although plaintiff attended physical therapy, she continued to complain of discomfort and pain at levels making physical therapy difficult. Her condition did not improve by her last visit to Dr. DeSilva on July 29, 1999. On May 19, 1999, plaintiff complained to Dr. Salaman of pain and popping in her left shoulder, pain in her elbow, her neck and jaw. Dr. Salaman performed surgery on her shoulder. Plaintiff complained in August 1999 of elbow pain radiating into her hand, and Dr. Salaman performed elbow surgery on September 28, 1999. After the surgery, plaintiff continued to complain of pain in the left elbow when she attempted activities at home. In December 1999, Dr. Salaman told Plaintiff she could not perform household chores, or activities requiring repetitive use of her hands. According to Dr. Salaman, plaintiff's left wrist was permanently damaged in the automobile accident, as was her left elbow, and her left shoulder. In the three years after the automobile accident, defendant paid over $100,000 in plaintiff's medical expenses and the statutory maximums for work loss benefits and replacement

Mrs. Stoops died of natural causes (arteriosclerotic cardiovascular disease) while these appeals have been pending. Her husband Joseph Stoops, the personal representative of her estate, has substituted for the deceased as a party in both cases. We use the singular plaintiff to refer to Kristen Stoops because she was the sole claimant in the Wayne circuit court case, and because Joseph Stoops' individual claim for insurance benefits in the Macomb circuit court case is solely derivative of injuries his wife allegedly sustained in the March 1998 accident.
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The parties spell the doctor's name as both "Salaman" and "Solomon."

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services benefits of $20.00 per day. See MCL 500.3107(1)(b) & (c). These benefits expired at the end of March 2001. In July 2001, plaintiff submitted to defendant three computer-generated letters bearing the title "Amber Baker / In-home Nursing Care Giver," which detailed hours that Ms. Baker purportedly spent attending to plaintiff's care. The letters stated Baker began providing plaintiff care on April 20, 2001, and continued to do so through June 30, 2001, seven days week, for eight to ten hours a day. Plaintiff also submitted to defendant several copies of checks drawn on a personal checking account bearing only plaintiff's name and payable to Amber Baker. Most of these checks were for the amount of $1680 purporting to be in payment for one week of care (56 hours at $30 per hour). Defendant's claims representative learned that Ms. Baker was last employed as a nurse's aide earning $9.50 an hour; defendant paid most but not all of the claimed attendant care at the rate of $9.50 per hour rate rather than the requested $30 per hour. Defendant paid plaintiff $9,452.50 for attendant care through August 2001, but then stopped. At trial, plaintiff sought compensation for the cost of attendant care provided by Amber Baker in 2001, 2002, and 2003, and for medical expenses of $80,798.85, consisting of $78,281.25 for surgery on plaintiff's shoulder at St. Joseph Mercy Hospital and $2,517.60 for treatment of plaintiff's elbow. In closing argument, plaintiff's counsel requested that the jury award plaintiff medical expenses in the amount of $80,798.85, and $83,111.25 for attendant care expense, which was calculated by multiplying the claimed amount of care hours by $17.50 per hour, and subtracting the $9,452.50 defendant had already paid for attendant care services. Defendant contended at trial that plaintiff's medical problems were not the result of the automobile accident of March 28, 1998, but from plaintiff's pre-existing condition, and the result of falls and other injuries plaintiff received after the accident. During discovery, defendant also caught plaintiff, her husband Joseph Stoops, and Amber Baker in web of deception regarding the alleged attendant care. First, defendant subpoenaed the bank records of plaintiff's personal checking account, which showed the purported checks plaintiff wrote to Amber Baker were never cashed. In plaintiff's deposition, she admitted the checks were not cashed but that Baker gave them to her husband, Joseph Stoops, who then gave Baker cash and a receipt. Copies of the receipts were mysteriously produced for defense counsel. Next, Joseph Stoops was deposed and he advanced the story that he went behind his wife's back to get the checks back from Baker and gave her cash he obtained by making ATM withdrawals on his business (S & S Mason) account. Although Joseph could not produce records to substantiate the cash withdrawals, he produced a receipt book from which he allegedly wrote contemporaneous receipts to Baker in 2001. This story floundered when defendant produced evidence that the receipt book was not even available until 2002, and the receipt book itself bore a 2002 copyright mark. The story regarding payment to Amber Baker shifted again at trial. Baker testified she lost the "original" receipts that Joseph had given her in 2001 and when defendant subpoenaed her to produce the receipts, Joseph Stoops provided her "copies." According to Baker, plaintiff would write a check to her, Baker would put the check under a jewelry box on Joseph's dresser, and Joseph would give Baker cash and a receipt. Joseph Stoops testified that in 2001 his business was in trouble and he hid money from his business in his wife's personal account; Stoops got the checks his wife wrote for Baker back from Baker and gave Baker cash so it would -3-


not appear that Baker was his employee. Stoops also testified regarding a jewelry box on his dresser. According to Joseph, Baker would "leave the check [-] I got like a jewelry box thing on my dresser [-] she leaves the check there and I'd leave the money for her" and a receipt. Joseph admitted that he obtained the receipt book in June 2003, and that he manufactured the receipts produced during discovery when Baker said she needed copies. The jury returned a mixed verdict. It found that although plaintiff had sustained a wrist injury in the accident, that defendant owed nothing for medical expenses for that injury. The jury found that plaintiff's shoulder injury was not related to the accident and therefore defendant was not responsible for medical expenses to treat plaintiff's shoulder. But the jury found plaintiff's elbow was injured in the accident and awarded medical expenses of $2,517.16. Regarding attendant care, the jury found that plaintiff was entitled to compensation of $3,247.50 for 2001, $17,500.00 for 2002, and $3,165.63 for 2003, for a total of $23,913.13. The jury also awarded interest in the amount of $7,786.95. Finally, the jury answered, "yes" to the question whether some of plaintiff's attendant care claim was excessive. The trial court entered judgment in favor of plaintiff on January 5, 2005 in the amount of $42,004.19, which included additional interest of $7,786.95. Both parties sought attorney fees pursuant to MCL 500.3148. Plaintiff argued she should be awarded attorney fees under

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