In Hardrick v. Auto Club, ____ Mich App. _____ (decided December 1, 2011), the Court of Appeals issued a 2-1 published decision in a no-fault case involving the proper rate for family provided attendant care. There were also evidentiary issues in the trial which the Court addressed. In this case, a jury found defendant Auto Club Insurance Association (ACIA) liable to plaintiff William Hardrick for family-provided attendant care services at a rate of $28 per hour. The jury reached this verdict after a trial in which ACIA was barred from presenting any evidence. The lawsuit arose out of an auto accident in 2007, when a car struck Hardrick, then age 19, as he walked home from work.
Hardrick suffered a traumatic brain injury resulting in cognitive deficits and emotional instability. Extensive hospital-based rehabilitation yielded only minimal therapeutic gains.
In 2008, Hardrick’s physician recommended around-the-clock attendant care “for supervision and safety.” Hardrick’s parents provided the prescribed attendant care. ACIA classified Hardrick’s parents as “home health aides,” and paid them a rate of $10.25 to $10.50 an hour for the attendant care they provided.
Hardrick filed a lawsuit seeking a determination that his parents qualified as “behavioral technicians,” entitling them to charge a higher hourly rate. Throughout the litigation, the only dispute was the “reasonable charge” for Hardrick’s parents’ services. Prior to trial, the trial court determined that ACIA had violated its discovery orders by providing belated and incomplete responses to discovery requests. Hardrick requested a default judgment, but the court opted to impose a “lesser sanction.”
The court precluded ACIA from presenting any witnesses or evidence. As a result, ACIA was limited to cross-examining Hardrick’s witnesses and challenging his proffered evidence.
At the trial, Plaintiff’s expert Robert Ancell testified that the care provided by Hardrick’s parents was more skilled than that of a home health aide, and compared the care to that of behavioral technicians. Ancell opined that the value of their care ranged between $25 to $45 an hour. The jury awarded the Plaintiffs $28 per hour and ordered ACIA to pay 3148 attorney fees as well.
With respect to the sanctions for the ACIA discovery violation, the Court of Appeals re-versed the trial court. The Court held that the sanction was disproportionate to the violation and affected the entirety of the trial, including damages. On the evidentiary issues of valuing the family provided attendant care, ACIA argued that the rates charged by health care agencies for attendant care services are not relevant in establishing the reasonable rate for unlicensed, family-provided services.
According to ACIA, the pertinent rate for determining the value of family-provided attendant care is a similar worker’s wage, not the hourly fees that a health care agency might charge the insurer to provide such services as that charge would include operating expenses, as well as wages.
The Court of Appeals disagreed, holding that the market rate for agency-provided attendant care services is relevant in establishing a rate for family-provided services.
The Court stated that the jury is entitled to consider a multitude of factors in determining the reasonable charge for the family provided attendant care services including opportunity cost, overhead, and fringe benefits. The case was remanded for a new trial to allow ACIA to present its own witnesses and evidence on the appropriate hourly rate for the family provided attendant care services.