COA 367360 JB V FARM BUREAU GENERAL INSURANCE COMPANY Opinion - Per Curiam - Unpublished 7/22/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JB, a legally incapacitated person, by Guardian
VERONICA STEIN,
Plaintiff-Appellee,
UNPUBLISHED
July 22, 2026
9:11 AM
v No. 367360
Washtenaw Circuit Court
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
LC No. 20-000134-NF
Defendant/Third-Party Plaintiff-
Appellant,
and
PROGRESSIVE MARATHON INSURANCE
COMPANY,
Third-Party Defendant.
MORIAH, INC., doing business as
EISENHOWER CENTER,
Plaintiff-Appellee,
v No. 367361
Washtenaw Circuit Court
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
LC No. 19-000635-NF
Defendant-Appellant.
Before: MARIANI, P.J., and O’BRIEN and WALLACE, JJ.
PER CURIAM.

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In these consolidated appeals,1 defendant, Farm Bureau General Insurance Co. of
Michigan, appeals as of right the trial court’s judgments entered for plaintiffs, JB, by his guardian
Veronica Stein and Moriah, Inc., doing business as Eisenhower Center.2 We affirm.
I. BACKGROUND
JB sustained multiple injuries after being hit by a truck in July 2015. At the time, JB was
covered by a no-fault policy with defendant, and defendant accordingly paid JB’s medical bills
following the accident through December 2015. From December 2015 to January 2017, there was
no activity on JB’s file, so defendant’s claims adjuster Susan Domzalski closed the file. In
May 2018, JB was admitted to the Eisenhower Center—a rehabilitation facility for traumatic brain
injuries (TBIs)—where he received care for a TBI. Defendant refused to pay for this care because
Domzalski determined that JB’s treatment at the Eisenhower Center was not related to his 2015
accident. This led plaintiffs to bring this action. A jury determined that JB suffered a TBI in the
2015 accident and that Eisenhower Center was treating JB for this injury, and it accordingly
returned a verdict in favor of plaintiffs. The trial court thereafter entered judgments against
defendant, which included an award of attorney fees.
This appeal followed.
II. SUBPOENAING AN EXPERT WITNESS
Defendant first asserts that the trial court lacked authority to issue a subpoena for
Dr. Gerald Shiener to testify as an expert in plaintiffs’ case-in-chief because “expert witnesses
cannot be compelled by subpoena to provide involuntary testimony.” Defendant did not raise this
argument below, however, so it is waived.
Shiener was originally retained by the defense, and defendant first disclosed Shiener as an
expert when it listed him as a witness in defendant’s December 14, 2022 witness list. Plaintiffs
objected to this, arguing that Shiener should be struck because he was added to defendant’s witness
list after the permissible time for doing so had passed, and because defendant did not disclose
Shiener as an expert in response to plaintiffs’ interrogatories in violation of the court rules
governing discovery. Defendant voluntarily struck Shiener from its witness list on January 31,
2023.
On March 8, 2023, plaintiffs filed their own witness list, which included Shiener as a
witness. Defendant immediately filed an emergency motion to strike Shiener. Defendant noted
that it had voluntarily withdrawn Shiener as its own witness in response to plaintiffs’ motion to
strike Shiener, and defendant argued that it “would be severely prejudice[d] if the Court were to
1 JB v Farm Bureau Gen Ins Co; Moriah Inc v Farm Bureau Gen Ins Co, unpublished order of the
Court of Appeals, entered August 22, 2023 (Docket Nos. 367360 and 367361).
2 Progressive Marathon Insurance Company was dismissed from the case and is not a party to this
appeal.

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allow Plaintiffs to call Dr. Shiener at trial for all the reasons detailed by Plaintiffs in their prior
motion seeking to strike Dr. Shiener.”
At the hearing on defendant’s motion, defense counsel added little to defendant’s
argument, stating only:
Your Honor, our position is Doctor Shiener, we withdrew him as witness.
He’s not on any of the witness lists and they withdrew the motion to strike him
based on our withdrawing him as a witness. But they’re naming him as a witness
on their trial witness list for the first time. And the rest of it I’ll rely on my brief.
The trial court ruled that “there is no surprise about [Shiener’s] involvement or testimony” because
he was listed in defendant’s claims file, so the court allowed plaintiff to call Shiener as a witness.
As the foregoing demonstrates, defendant never argued below that the trial court lacked
authority to issue a subpoena for Shiener on grounds that “expert witnesses cannot be compelled
by subpoena to provide involuntary testimony.” Michigan follows the raise-or-waive rule, which
provides that an issue not raised in the trial court will be deemed waived on appeal. Tolas Oil &
Gas Exploration Co v Bach Servs & Mfg, LLC, 347 Mich App 280, 289; 14 NW3d 472 (2023).
While defendant objected to plaintiff’s calling Shiener, it did not object on the ground it asserts on
appeal, and “an objection on one ground is insufficient to preserve appellate attack on different
grounds.” Meagher v Wayne State Univ, 222 Mich App 700, 724; 565 NW2d 401 (1997). This
issue is therefore waived, and we decline to reach the merits.
III. ATTORNEY FEES
Defendant next argues that the trial court erred by awarding plaintiffs’ attorney fees under
MCL 500.3148(1).
MCL 500.3148(1) was amended by 2019 PA 21, but the parties agree that the former
version of the statute applies in this case. The former version of MCL 500.3148(1) provided:
An attorney is entitled to a reasonable fee for advising and representing a
claimant in an action for personal or property protection insurance benefits which
are overdue. The attorney’s fee shall be a charge against the insurer in addition to
the benefits recovered, if the court finds that the insurer unreasonably refused to
pay the claim or unreasonably delayed in making proper payment. [MCL
500.3148(1), as enacted by 1972 PA 294.]
As explained by our Supreme Court, this statute “provides for attorney fees when an insurance
carrier unreasonably withholds benefits,” and a trial court’s decision to award attorney fees under
this statute presents “a mixed question of law and fact.” Ross v Auto Club Group, 481 Mich 1, 7;
748 NW2d 552 (2008). “What constitutes reasonableness is a question of law, but whether the
defendant’s denial of benefits is reasonable under the particular facts of the case is a question of
fact.” Id. Questions of law are reviewed de novo, while questions of fact are reviewed for clear
error. Id.

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“[T]wo prerequisites” must be satisfied before attorney fees can be paid under MCL
500.3148(1)—benefits must be “overdue,” and the insurer must be found to have either
unreasonably refused to pay the claim or unreasonably delayed making proper payment. Moore v
Secura Ins, 482 Mich 507, 517; 759 NW2d 833 (2008). Defendant on appeal only contests whether
it unreasonably refused to pay plaintiffs’ claims.
When an insurer refuses to pay benefits, the insurer has the burden “to justify the refusal.”
Attard v Citizens Ins Co of America, 237 Mich App 311, 317; 602 NW2d 633 (1999). A refusal
is justified if it was “the product of a legitimate question of statutory construction, constitutional
law, or factual uncertainty.” Ross, 481 Mich at 11. “The determinative factor in [this] inquiry is
not whether the insurer ultimately is held responsible for benefits, but whether its initial refusal to
pay was unreasonable.” Id.
Defendant contends that the trial court erred by finding that defendant’s initial refusal to
pay JB’s benefits was unreasonable because there existed a legitimate factual uncertainty about
whether JB’s treatment at Eisenhower was related to a “motor vehicle accident that occurred only
three weeks before the Eisenhower admission in 2018.”3
It is uncontested that JB was in a motor vehicle accident on April 23, 2018, and that JB
began his treatment at Eisenhower shortly thereafter. It is also beyond dispute that a physician
who treated JB in July 2018—Dr. Thomas McKeon—wrote in JB’s treatment notes that JB had
been staying at a facility “for patients with traumatic brain injury” that was “secondary to an
automobile accident that he was in earlier this year.” Defendant further emphasizes that JB “was
never diagnosed with a TBI” following his July 2015 accident and before beginning his treatment
at Eisenhower. Relying on the foregoing, defendant concludes that there existed a legitimate
factual uncertainty about whether JB’s treatment for a TBI at Eisenhower in 2018 was related to
JB’s 2015 accident or his 2018 accident.
This argument appears reasonable on the surface, but it falls apart under scrutiny. First and
foremost, contrary to defendant’s representations on appeal, plaintiffs presented evidence that JB
was indeed diagnosed with a TBI following the 2015 accident, and that defendant had a record in
its possession that reflected this diagnosis. In an occupational therapy evaluation from August
2015, JB’s “diagnosis” was listed as “TBI/Multiple fractures,” with a “date of onset” as the date
of JB’s accident. A notation on this document reflects that it was “scanned” on October 3, 2015,
and Domzalski confirmed at trial that this meant that defendant “had this record back in October
of 2015.”
3 Defendant also contends that there was factual uncertainty about whether JB’s treatment at
Eisenhower was related to JB’s “longstanding and unrelated psychiatric issues,” but defendant
does not develop this argument any further, thereby abandoning it. See Mitcham v Detroit, 355
Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up to this Court to discover and rationalize
the basis for his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.”).

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Next there is the issue of McKeon’s note stating that JB had been staying at a facility “for
patients with traumatic brain injury” that was “secondary to an automobile accident that he was in
earlier this year.” This note was taken by McKeon after defendant was admitted for observation
for “[s]welling of both lower legs increasing in severity,” and the statement that defendant relies
on appears in the section of the treatment note titled, “History of Present Illness.” It is obvious
from this context that McKeon was not opining that JB had suffered a TBI in the April 2018
accident but was merely recording background information that was largely irrelevant to the reason
that McKeon was treating JB.
Even assuming that this was not patently obvious from a cursory review of McKeon’s
treatment note, no one associated with defendant ever followed up with McKeon to clarify what
this note meant. An insurer who refuses to seek clarity on an insured’s medical condition does so
“at its own risk.” Moore, 482 Mich at 522. It follows that an insurer who fails to “clarify” a
physician’s favorable finding can be found to have unreasonably relied on the physician’s medical
opinion to refuse payment, even though, in the abstract, an insurer can “reasonably rely on the
medical opinion of its physicians.” Tinnin v Farmers Ins Exch, 287 Mich App 511, 516-517; 791
NW2d 747 (2010). Here, despite defendant’s heavy reliance on the single line from McKeon’s
treatment note, no one from defendant ever followed up with McKeon to clarify the significance
of that single line, which undermines defendant’s near-total reliance on McKeon’s treatment note.
This bleeds into another flaw in defendant’s framing of this issue—defendant ignores how
sparsely it investigated JB’s injury before concluding that JB’s treatment at Eisenhower was
related to his 2018 accident. Despite apparently believing that JB suffered a TBI in the 2018
accident, Domzalski did not review the emergency room records from that accident before denying
JB’s claim. Domzalski also conceded that she did not contact JB’s treating physicians to determine
whether the TBI for which JB was receiving treatment was a result of the 2015 or the 2018
accident. And Domzalski confirmed that defendant never hired its own medical examiner to
determine whether JB suffered a TBI in the 2015 or 2018 accident. While defendant did not have
a duty to do any of these things, it refused to do them “at its own risk.” Moore, 482 Mich at 522.
On this record, the trial court did not clearly err by concluding that defendant unreasonably
refused to pay plaintiffs’ claims.
Affirmed.
/s/ Philip P. Mariani
/s/ Randy J. Wallace

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