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STATE OF MICHIGAN COURT OF APPEALS

MICHELLE COLLIER, Plaintiff-Appellee, v LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant.

UNPUBLISHED February 24, 2011

No. 294965 Wayne Circuit Court LC No. 08-100946-NF

Before: SAAD, P.J., and K.F. KELLY and DONOFRIO, JJ. PER CURIAM. Defendant appeals the trial court's order that granted summary disposition to plaintiff. For the reasons set forth below, we reverse and remand for further proceedings. I. FACTS Plaintiff was involved in an automobile accident on March 19, 2001 while she was a passenger in a vehicle insured by defendant. Plaintiff did not immediately seek medical treatment, but later went to Sinai-Grace Hospital and complained of headaches and neck pain. Doctors suspected plaintiff might have meningitis and advised her to see her family doctor for further care. After some follow up care and physical therapy, plaintiff did not seek further medical help until June 2002, after she gave birth to a baby. Plaintiff reported symptoms of numbness and shaking in her right leg, and doctors treated plaintiff for lumbar disc disease. In February 2004, plaintiff was diagnosed with Chiari malformation with herniation of the tonsils below C1 and a small syrinx at the C2-3 level. A Chiari malformation is a congenital structural defect in the cerebellum, where the skull joins the spine. On February 26, 2004, Dr. Philip Friedman performed a suboccipital craniectomy with decompression of the Chiari malformation and a cervical laminectomy at C1, 2 and 3 with dural decompression. After the surgery, plaintiff reported worsening weakness in her legs and, in September 2004, she was diagnosed with transverse myelitis, a neurological disorder causing inflammation in a segment of the spinal cord. At that time, plaintiff could walk using a cane or walker but, after several months, she reported that her leg weakness worsened and she began to use a wheelchair. Defendant stopped paying medical benefits to plaintiff in September 2001, after an independent medical examination. Plaintiff filed a lawsuit against defendant and the matter was arbitrated on December 22, 2004. According to defendant, plaintiff sought $438,200 for -1-

attendant care benefits, wage loss and replacement services. The arbitrators issued an award of $165,000 to plaintiff on January 3, 2005. The award contains no findings of fact or conclusions of law, and specifies that it includes all outstanding benefits from March 19, 2001 through December 22, 2004. Plaintiff subsequently filed another lawsuit against defendant and the parties entered into a settlement agreement in which defendant agreed to pay plaintiff $130,000 for attendant care, mileage and medical expenses through December 12, 2006. The settlement explicitly excluded any alleged expenses for wheelchair lifts and a handicap van. Plaintiff filed this lawsuit on January 11, 2008 and alleged that, although defendant continued to pay attendant care benefits, it failed or refused to pay for reasonably necessary products or accommodations, including an interior stair lift and an exterior wheelchair lift. Plaintiff later asserted that she is also entitled to payment for a van that can accommodate her wheelchair. On March 4, 2009, plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff argued that collateral estoppel precludes relitigation of the question of whether plaintiff's injuries are related to the motor vehicle accident because this issue was decided by the arbitration panel in a valid final judgment of the arbitration panel. Plaintiff also argued that the home modifications and handicap van are reasonably necessary for her care and recovery. In response, defendant asserted that collateral estoppel does not apply because the arbitration panel never issued a valid final judgment and did not make a finding that plaintiff's current medical problems were caused by the 2001 automobile accident. Defendant also argued that plaintiff's alleged expenses for the wheelchair lifts and handicap van were not reasonable or "incurred" within the definition set forth in Proudfoot v State Farm Mut Ins Co, 469 Mich 476; 673 NW2d 739 (2003). At a motion hearing on April 2, 2009, the trial court granted summary disposition to plaintiff. Specifically, the trial court ruled that the arbitration panel decided that plaintiff's injuries are related to the automobile accident and that defendant cannot relitigate that issue in a subsequent proceeding. The court ordered defendant to pay plaintiff the estimated amounts she would incur to purchase two wheelchair lifts and a handicap van. The court also awarded plaintiff attorney fees and penalty interest. II. ANALYSIS Defendant contends that the trial court erred by granting plaintiff's motion for summary disposition. As this Court explained in Ward v Titan Ins Co, 287 Mich App 552, 554; 791 NW2d 488 (2010): We review a decision on a motion for summary disposition de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(10) where the proffered evidence fails to establish a genuine issue -2-

regarding any material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); MCR 2.116(G)(4); Coblentz, supra at 568, quoting Maiden, supra. "The interpretation of statutes and court rules is also a question of law subject to de novo review, as is the application of legal doctrines, such as res judicata and collateral estoppel." Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). MCL 500.3105(1) states that "an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle." Plaintiff sought payment pursuant to MCL 500.3107(1)(a), which provides for recovery of personal protection insurance benefits for "[a]llowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." If a claim for benefits is denied, the insured has the burden to prove that the charges are compensable. United States Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass'n, 484 Mich 1, 18; 773 NW2d 243 (2009). The trial court ruled that defendant is collaterally estopped from relitigating whether plaintiff's injuries are related to the 2001 automobile accident for purposes of her claimed allowable expenses. "Collateral estoppel bars relitigation of an issue in a new action arising between the same parties or their privies when the earlier proceeding resulted in a valid final judgment and the issue in question was actually and necessarily determined in that prior proceeding." Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006), citing 1 Restatement Judgments, 2d,

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