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STATE OF MICHIGAN COURT OF APPEALS

TRINA RICHARD, Plaintiff-Appellee/Cross-Appellant, and TBCI P.C., Intervening Plaintiff, v ALLSTATE INSURANCE COMPANY, Defendant-Appellant/CrossAppellee.

UNPUBLISHED June 21, 2012

No. 298650 Wayne Circuit Court LC No. 06-613557-NF

Before: WILDER, P.J., and CAVANAGH and DONOFRIO, JJ. PER CURIAM. Defendant appeals by delayed leave granted a $51,809.171 judgment in favor of plaintiff, Trina Richard, that was entered after a jury trial. The lawsuit was initiated for the recovery of first-party no-fault personal injury protection ("PIP") benefits. Plaintiff cross-appeals from the same judgment. We affirm. I. BASIC FACTS On October 1, 1991, plaintiff, then a 16-year old high school student, was hit by a vehicle while she was walking across a street in Detroit. The impact of the collision tossed plaintiff into the air, which resulted in her head hitting the ground when she landed. She had a "huge," "thick," "gigantic" knot on her head. Plaintiff was transported to Henry Ford Hospital, where she was treated and released later that same day. The hospital records show that plaintiff

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The $51,809.17 was broken down as follows: $40,704.20 for allowable expenses; $4,884.50 for statutory interest, MCL 500.3142; and $6,220.47 for post-filing judgment interest, MCL 600.6013(8).

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suffered a large hematoma on her right forehead and abrasions on the right side of her chin and face. Additionally, she was diagnosed with a closed-head injury. Plaintiff returned to school some weeks after the accident. After the October 1, 1991, accident, plaintiff's parents filed a claim with defendant for $420 for replacement services, which was paid. The medical bills presumably were paid by plaintiff's health insurance carrier. At trial, plaintiff complained of having neck and back pain virtually every day since the accident. However, from 1993 until 2005, plaintiff received no treatment for any head, neck, or back injuries related to the accident. In fact, she never even mentioned any such injuries during her many doctor visits throughout this time. In 2005, plaintiff met with Lawrence Gamby, a certified rehabilitation counselor and case manager, who had started Gamby, Kageff2 & Associates ("GK&A"). GK&A provided services to plaintiff totaling $16,000, which defendant has not paid.3 Gamby testified that these services were reasonably necessary for plaintiff's care and treatment stemming from the October 1, 1991, accident. GK&A initially referred plaintiff to Dr. Thomas Park, a psychiatrist, at TBCI P.C.4 Dr. Park then referred plaintiff to Dr. Woo Kim, a physical medicine physician, for care of her neck and back pain; to Dr. Renee Applebaum, a neuropsychologist, for neuropsychological evaluation; and back to GK&A for case-management services. GK&A also utilized Health Care Unlimited, another company owned by Gamby, which provided transportation for plaintiff. Gamby claimed that Health Care Unlimited was owed $13,000 for these transportation services, which also were reasonably necessary charges that defendant denied. Dr. Applebaum first evaluated plaintiff in March 2006. Dr. Applebaum found that there was no indication of malingering5 and concluded that plaintiff was moderately impaired. Dr. Applebaum also concluded that plaintiff had a cognitive disorder and organic personality syndrome, which were all attributable to the October 1, 1991, car accident. Dr. Applebaum testified that she incurred $5,150 in charges for her services.

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The trial transcript spelled this name as "Caga," but the parties' briefs on appeal spell it "Kageff." We assume the parties' briefs are correct and will use the "Kageff" spelling. Gamby later formed "Gamby & Associates," but that entity did not provide any services to plaintiff.

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TBCI P.C. had intervened in the lawsuit and successfully petitioned the court to bifurcate the trial, with its issues being tried separately. However, TBCI P.C. was ultimately dismissed by stipulated order on February 1, 2010. "Malingering" is defined as the "intentional production of false or grossly exaggerated physical or psychological symptoms." Medscape Reference, Malingering, <http://emedicine.medscape.com/article/293206-overview> (accessed September 2, 2011).
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In 2005, defendant received a bill for the treatment plaintiff received. Ruth Billiau was the claims adjuster at Allstate that was assigned to the claim. Billiau was skeptical that the current treatment was related to the 1991 accident since there had been no treatment or issues during the previous 12 years. Accordingly, defendant requested authorizations from plaintiff for her medical records. But plaintiff never returned the authorizations. Contemporaneous to this, Billiau sent plaintiff to be evaluated by Dr. Clifford Fergison, a neuropsychologist. But because Billiau never received any authorizations, she did not have access to, and could not provide Dr. Fergison with, any of plaintiff's medical records that spanned from 1993 through 2005. Dr. Fergison evaluated plaintiff on November 30, 2005, and gave a report of his findings. Dr. Fergison concluded that "there was significant evidence of symptom exaggeration based on symptom validity testing," which made it impossible for him "to arrive at any clear diagnosis or treatment recommendations." On cross-examination, Dr. Fergison clarified that, even though plaintiff's testing results were consistent with symptom exaggeration, malingering, and preexisting impairment, he could not conclude that plaintiff actually was exaggerating, malingering, or had a pre-existing impairment. After reading Dr. Fergison's report, Billiau denied plaintiff's claims for benefits. Billiau explained that, while she also had Dr. Applebaum's conflicting report, she based her decision solely on Dr. Fergison's report. Plaintiff filed suit on May 10, 2006. Before trial, plaintiff, in a motion in limine, sought to have any evidence of plaintiff's prior abortion excluded from trial. Plaintiff argued that such evidence was irrelevant to any of the contested issues at trial and, even if the abortion was somewhat relevant, any relevance would have been substantially outweighed by undue prejudice, making it inadmissible pursuant to MRE 403. The trial court granted the motion but noted that defendant would be allowed to make a subsequent offer of proof at trial if it wished. There is nothing on the record to suggest that defendant ever made such an offer of proof. After a six-day trial, a jury returned a verdict in favor of plaintiff in the amount of $40,704.20 for allowable expenses and $4,884.50 for statutory interest. On May 27, 2009, defendant filed a motion with the trial court to settle the record, or in the alternative, to have a new trial. Defendant noted that the entire transcript from August 13, 2008, was missing. The missing testimony supposedly included part of the direct testimony (and possibly a portion of the cross-examination) of plaintiff's father, Cornell Richard; all of the testimony of plaintiff's husband, Anthony Montgomery; and Dr. Park's direct-examination (and possibly a portion of the cross-examination). On January 15, 2010, defendant provided a proposed record of the testimony of Cornell but stated that Dr. Park's settled record of testimony was to be supplied by plaintiff.6 A few days later, plaintiff submitted her proposed record for the testimony of Cornell and Dr. Park.

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Anthony Montgomery's testimony was not a concern because, since it was introduced via deposition, the testimony was still available.

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Plaintiff's version of Cornell's testimony was not substantively different than defendant's version except for a few instances. Even though defendant disagreed with the additions that plaintiff proposed related to Cornell's testimony, the trial court ordered that both sides' proposed facts would encompass the settled record. II. EVIDENCE OF ABORTION Defendant argues that the trial court abused its discretion when it excluded evidence that plaintiff had an abortion. We disagree. A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. In re Kramek Estate, 268 Mich App 565, 573; 710 NW2d 753 (2005). "An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes." Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). Generally, relevant evidence is admissible. MRE 402. Evidence is relevant if it has a tendency to make the existence of a fact of consequence more probable or less probable than it would be without the evidence. MRE 401; Waknin v Chamberlain, 467 Mich 329, 333; 653 NW2d 176 (2002). Defendant argued at the trial court that the fact that plaintiff got an abortion was "relevant because it is part of what made her into the person she is today. . . . These sort of incidents very much flavor and create the person we have here today and going to be testifying at trial. . . . In this case it is relevant and the testimony will support that." In other words, defendant maintained that plaintiff's abortion was a cause of at least some of her impairments. However, this was sheer speculation on defendant's part. There was nothing in the record that suggested that the abortion did cause any such impairment. Thus, the trial court correctly excluded the evidence on a relevance basis. On appeal, defendant argues that the expert testimony of Dr. Elliot Wagenheim was sufficient to show that the abortion was relevant. However, there are two significant flaws with this assertion. First and foremost, Dr. Wagenheim's testimony came towards the end of trial and, thus, was not available to the trial court at the time it granted plaintiff's motion in limine. Therefore, it can have no bearing on whether the trial court erred at the time it granted the motion. Second, Dr. Wagenheim never testified about an abortion specifically. Instead, defendant relies on Dr. Wagenheim's testimony that a person who had "been abused physically, emotional[ly], [or] sexually tend[s] to develop certain personality traits and certain patterns." Defendant did not introduce expert testimony, however, to establish that having an abortion, while likely emotionally and physically traumatic, is the equivalent of being physically, emotionally, or sexually abused. Thus, the jury would have had to speculate to reach such a conclusion. Even assuming, arguendo, that plaintiff's abortion was relevant, the evidence was still inadmissible pursuant to MRE 403. Under MRE 403, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. Detroit v Detroit Plaza Ltd P'ship, 273 Mich App 260, 272; 730 NW2d 523 (2006). "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." Waknin, 467 Mich at 334 n 3. Here, the probative value was minimal since any link between plaintiff having an abortion and her mental state years after the fact is tenuous at best. Conversely, the danger of jurors giving undue weight to this fact is clear. -4-

This Court noted in 1979 that "[t]he existing strong and opposing attitudes concerning the issue of abortion clearly make any reference thereto potentially very prejudicial." People v Morris, 92 Mich App 747, 751; 285 NW2d 446 (1979). This rationale is no less valid in 2011. Thus, given the limited probative value of the evidence, it would have been reasonable for the trial court to have concluded that the probative value was substantially outweighed by the potential of unfair prejudice. Moreover, reviewing courts should generally defer to a trial court's contemporaneous judgment of probative value and potential unfair prejudice under MRE 403. People v Bahoda, 448 Mich 261, 291; 531 NW2d 659 (1995). Accordingly, the trial court did not abuse its discretion when it excluded evidence of plaintiff's abortion. III. DIRECTED VERDICT Defendant next argues that the trial court erred when it denied its motions for directed verdict with respect to the separate issues of attendant-care benefits and benefits supplied by GK&A. We disagree. A lower court's decision on a motion for directed verdict is reviewed de novo. King v Reed, 278 Mich App 504, 520; 751 NW2d 525 (2008). The evidence presented up to the time of the motion is viewed in a light most favorable to the nonmoving party to determine whether a question of fact existed. Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 455; 750 NW2d 615 (2008). If reasonable jurors could honestly have reached different conclusions, then the motion is properly denied. Id. A. ATTENDANT-CARE BENEFITS Under Michigan's No-Fault Act, MCL 500.3101 et seq., PIP benefits are payable 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." MCL 500.3107(1)(a). A plaintiff must prove that "(1) the charge for the service was reasonable, (2) the expense was reasonably necessary and (3) the expense was incurred." Williams v AAA Mich, 250 Mich App 249, 258; 646 NW2d 476 (2002). "Care" includes attendant care, even if the provider does not have medical training. Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171, 180; 318 NW2d 679 (1982). But attendant care, like all other compensable services, must be reasonably necessary and actually rendered. Williams, 250 Mich App at 258; Moghis v Citizens Ins Co, 187 Mich App 245, 247; 466 NW2d 290 (1990). Defendant maintains that there was insufficient evidence to show that plaintiff actually received any attendant-care services. However, defendant's brief on appeal fails to reference the testimony of plaintiff's husband, Anthony Montgomery, which was introduced via deposition. Montgomery recounted providing care to plaintiff related to her condition, which included cooking, caring for their child, leaving daily reminders, and helping her with her medication. Therefore, viewing this evidence in a light most favorable to plaintiff, the nonmoving party, a jury could have concluded that Montgomery actually provided attendant-care services to plaintiff.

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Defendant also contends that, even if attendant-care services were provided, plaintiff never "incurred" any expense. Defendant relies on Manley v DAIIE, 425 Mich 140; 388 NW2d 216 (1986), in arguing that an insurer is not obligated to pay unless there is a bill presented. However, this reliance is misplaced. In Manley, the Court stated that "insofar as nurse's aides are concerned [the insurer] is not obligated to pay any amount except upon submission of evidence that servicers were actually rendered and of the actual cost expended." Id. at 159 (emphasis added). Defendant provides the above quote minus the emphasized portion. Thus, it is clear that this statement is in the context of nonfamily members providing care. There is nothing to suggest in Manley that this requirement extends to immediate family members. In fact, the Supreme Court recently has explained that "incurring" an expense simply means that "the attendant care providers expected compensation for their services." Burris v Allstate Ins Co, 480 Mich 1081, 1081; 745 NW2d 101 (2008). Justice Corrigan, in a concurring opinion, explained that the term "incur" does not mean that an insured must necessarily enter contracts with the care provider to be entitled to reimbursement for attendant-care expenses. . . . Nor does it mean that an insured must necessarily present a formal bill establishing that the attendant-care services were provided. It merely means that the insured must have an obligation to pay the attendant-care-service providers for their services. [Id. at 1084-1085, (Corrigan, J., concurring).] Therefore, defendant's position that attendant-care services must be billed in order to be recoverable is not supported by case law. As the Burris Court explained, all that is necessary is that the providers expected to be compensated. Id. at 1081. Here, plaintiff testified that she communicated with the caregivers that she intended to compensate them. Furthermore, Montgomery testified that, although no specific dollar amounts were discussed, he talked to plaintiff about getting paid at the prevailing rate. Hence, when viewing plaintiff's testimony and Montgomery's testimony in a light most favorable to plaintiff, a jury could have inferred that at least some caregivers expected to be compensated for their services. We note that defendant's criticism of the verdict form is not pertinent to whether the trial court properly denied the motion for directed verdict. Instead, whether the verdict form was deficient is an entirely separate legal issue. Moreover, it appears from the record that defendant wrote and submitted the proposed verdict form and never objected to it at trial. As a result, defendant has either waived the issue by offering the form itself or has forfeited the issue by not objecting to it. See Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 69; 642 NW2d 663 (2002). Moreover, given that the trial court did not err in denying the motion for directed verdict, defendant's argument regarding the verdict form is moot. B. EXPENSES FOR GK&A Defendant also claims that, because GK&A was no longer in business and did not have a current assumed-name certificate under MCL 445.1, GK&A could not collect from plaintiff for any services it rendered, which in turn means that defendant cannot be obligated to pay plaintiff for those services. We disagree.

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MCL 445.1 requires a person who conducts business under an assumed name to file a certificate in the county in which the person conducts the business. Failure to comply with this requirement bars the person from filing suit. MCL 445.5.7 However, MCL 445.1 also provides that this filing requirement only is applicable when the assumed name is "other than the real name of the person owning, conducting, or transacting that business." Here, the assumed name in question is "Gamby, Kageff & Associates," and the name of the person conducting the business was "Gamby." Thus, by the plain language of the statute, it is clear that Gamby was not required to file any certificate under MCL 445.1 because the assumed name encompassed his and his partner's real names. This is wholly distinguishable from the case that defendant relies on, Krager v Hedler Storage, 7 Mich App 644; 152 NW2d 708 (1967). In Krager, the plaintiff, Herman Krager, operated the "Casnovia Milling Company" but never filed an assumed-name certificate in Newaygo County. Id. at 646. This failure to file was fatal to the plaintiff's case, because it was evident that "Casnovia," under which business was transacted, was not Krager's real name. More analogous to the present case is June v Vibra Screw Feeders, Inc, 6 Mich App 484; 149 NW2d 480 (1967). In June, the plaintiff "used his own surname, June, as part of the name of the company he operated and in so doing, was not subject to the filing requirements of the assumed name filing statute." Id. at 492-493. Just as the plaintiff in June was not required to file an assumed-name certificate because he used his own name in the company's name, Gamby was not required to file an assumed-name certificate because he used his name in his company's name. Therefore, Gamby was not required to file an assumed name certificate, and his failure to do so, does not invoke any of the limitations of MCL 445.5. As a result, the trial court did not err by denying defendant's motion for directed verdict on this issue.

MCL 445.5, in pertinent part: "Any person or persons owning, carrying on or conducting or transacting business as aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor . . . . [H]owever, the fact that a penalty is provided herein for noncompliance with the provisions of this act shall not be construed to avoid contracts; but any person or persons failing to file the certificate required by [MCL 445.1 and MCL 445.1a] shall be prohibited from bringing any suit, action or proceeding in any of the courts of this state, in relation to any contract or other matter made or done by such person or persons under an assumed or fictitious name, until after full compliance with the provisions of this act; but no person or persons doing business under a fictitious name or as the assignee or assignees thereof shall maintain or prosecute any action, nor shall any order, judgment, or decree be made in any action heretofore or hereafter commenced in any court of this state upon or on account of any contract or contracts made or transactions had under such fictitious name after August 14, 1919, if the conduct of such business under such fictitious name has ceased, or if it is still conducted under such fictitious name, then until after full compliance with the provisions of this act."

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IV. ATTORNEY FEES

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