COA 371692 KERRY LYNN ZIELINSKI V AUTO-OWNERS INSURANCE COMPANY Opinion - Authored - Published 6/11/2026

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
KERRY LYNN ZIELINSKI,
Plaintiff-Appellee,
FOR PUBLICATION
June 11, 2026
3:38 PM
v No. 371692
Wayne Circuit Court
AUTO-OWNERS INSURANCE COMPANY, LC No. 22-000435-NI
Defendant-Appellant.
Before: BAZZI, P.J., and RICK and MALDONADO, JJ.
MALDONADO, J.
In this no-fault action brought by plaintiff, Kerry Lynn Zielinski, for recovery of personal
protection insurance (PIP) benefits after an automobile accident, defendant, Auto-Owners
Insurance Company, appeals as of right the May 20, 2024 final order and judgment. After a jury
found that medical bills relating to plaintiff’s neck surgery were owing and overdue to plaintiff,
the trial court awarded plaintiff $11,797.65 in overdue allowable expense benefits, $1,547.65 in
pre-judgment interest, $2,798.40 in penalty interest, $11,371.65 in taxable costs, and $288,090.00
in attorney’s fees.
On appeal, defendant argues that it is entitled to a new trial because plaintiff’s counsel
erroneously referred to the drunkenness of the other driver in the subject accident, which
prejudiced both the trial court and the jury. Defendant also argues that the trial court erred by
awarding attorney fees to plaintiff under MCL 500.3148 because defendant’s refusal to pay for the
neck surgery was based on a legitimate factual dispute. Moreover, even if attorney fees were
appropriate, defendant argues that plaintiff failed to establish that the hourly rate and expended
hours were reasonable, particularly because plaintiff’s counsel failed to keep contemporaneous
records of their time. We affirm.
I. BACKGROUND
On January 21, 2021, plaintiff was rear-ended by another driver, Charles E. Watkins, as
she was stopped at a red light. The force of the collision pushed her car into the car in front of her,
which was also stopped at the same red light. Plaintiff was transported by ambulance to the
emergency room at Oakwood Southshore Hospital. The next day, plaintiff reported the accident

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to defendant, her auto insurance company, claiming that she suffered a “slipped disc under her
neck.” Defendant’s claim notes also indicate that plaintiff suffered “whiplash,” as well as a
concussion and other injuries. Shortly after the accident, plaintiff also contracted a life-threatening
bacterial infection that took months to manage.
In addition to the infection and the injuries sustained in the accident, plaintiff also had a
lengthy, complicated, pre-accident medical history—including 19 prior spinal surgeries. Dr.
Ayman Tarabishy began treating plaintiff in 2019 for pain management, primarily related to her
lumbar spine. Dr. Tarabishy described plaintiff as “a lot more fragile and susceptible” than
someone with a healthy spine. As part of plaintiff’s treatment, Dr. Tarabishy referred plaintiff to
Dr. Christopher Elia for spinal surgery. Dr. Elia started treating plaintiff in December 2021 after
the accident and after she recovered from the bacterial infection. Dr. Elia acknowledged that
plaintiff had “a pretty extensive prior surgical history” and was treated for neck pain and cervical
myelopathy1 before the subject auto accident. However, according to Dr. Elia, the prior surgeon
“did a pretty good job decompressing her spinal cord,” so she “should have gotten better.”
Regardless, Dr. Elia opined that when he began treating plaintiff in December 2021, her
current neck pain and cervical myelopathy were related to the subject accident. Dr. Elia further
opined that the surgery he performed in February 2022 was necessary to treat the neck injuries that
plaintiff sustained in the subject accident. In October 2023, Dr. Elia performed another surgery
for plaintiff, this time on her low back to correct a “pretty extensive deformity.” He opined that
the second surgery was also necessary to treat plaintiff’s injury from the subject accident. Dr. Elia
explained that if plaintiff had not needed surgery on her neck in February 2022, “she likely would
not have developed those biomechanics” that led to the corrective surgery in October 2023.
Plaintiff filed the subject lawsuit in January 2022 claiming unpaid PIP benefits against
defendant and negligence against Watkins. In April 2022, defendant received medical bills from
Michigan Head and Spine Institute for the neck surgery performed by Dr. Elia. In July 2022, in a
letter corresponding with Medicare, defendant acknowledged that plaintiff had injured her neck in
the subject accident and was treated for that injury. Defendant sent a nearly identical letter to
Medicare in September 2022. Subsequently, defendant engaged Dr. Steven Kalkanis to perform
an independent medical examination (IME).2 He did not actually examine plaintiff but rather
engaged in a review of records related to her claim. In October 2022, after reviewing hundreds of
pages of plaintiff’s medical records, Dr. Kalkanis concluded that “[t]here is simply no evidence to
suggest that [plaintiff] suffered from any anatomic, traumatic, conformational, or radiographic
1 “Myelopathy is the medical term for spinal cord damage.”
2 We use the phrase “independent medical examination” because that is the phrase used by the
parties to refer to the examination in question. However, in Micheli v Mich Auto Ins Placement
Facility, 340 Mich App 360, 364 n 3; 986 NW2d 451 (2022), we observed this “appellation is a
euphemistic term of art” and, at least in the insurance context, “an IME involves obtaining a second
opinion from a doctor who is entirely selected and paid for by an insurance company, rendering
the ‘independence’ of the examination somewhat questionable.”

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change or injury to the brain or cervical, thoracic, or lumbar spine as a result of the January 2021
accident.”
At some point, plaintiff also sent defendant the bill for her October 2023 back surgery
performed by Dr. Elia at Spine and Brain Surgery Specialists, which apparently occurred after Dr.
Elia left the Michigan Head and Spine Institute and opened his own practice. In November 2023,
on the basis of Dr. Kalkanis’ report and “the entire claim investigation and review of all materials
gathered to date,” defendant denied plaintiff’s bills from both Michigan Head and Spine Institute
and Spine and Brain Surgery Specialists.
Following the denial, the case proceeded to a two-day trial, during which the jury heard
testimony from plaintiff and two claims adjusters from Auto-Owners.3 The jury also heard the
recorded deposition testimonies of Dr. Tarabishy, Dr. Elia, and Dr. Kalkanis. At the conclusion
of the trial, the jury determined that plaintiff sustained an accidental bodily injury arising out of
the operation of a motor vehicle. The jury also concluded that plaintiff’s medical bill from
Michigan Head and Spine Institute for neck surgery was reasonable and necessary to treat her
injuries, i.e., an allowable expense, and that payment was overdue. However, the jury determined
that plaintiff’s bill for surgery on her low-back from Spine and Brain Surgery Specialists was not
an allowable expense.
Plaintiff moved in the trial court for attorney fees. Defendant argued that plaintiff was not
entitled to attorney fees because its denial of payment was reasonable, and even if fees were
appropriate, plaintiff failed to properly support her fee claim. After a hearing on the motion, the
trial court determined that fees were appropriate and that the reasonable hourly rate for the primary
attorneys was $750.4 The case proceeded to an evidentiary hearing to establish the reasonable
amount of hours expended on the case. During the hearing, members of plaintiff’s legal team
testified regarding their work on the case, which was supported by their affidavits and spreadsheets
reflecting time expended. The trial court struck a few hours as duplicative, but otherwise largely
adopted plaintiff’s claimed hours. As previously noted, the trial court then entered a judgment
awarding plaintiff $11,797.65 in overdue allowable expense benefits, pre-judgment interest under
MCL 600.6013, penalty interest under MCL 500.3142, taxable costs, and attorney fees under
MCL 500.3148, for a total judgment of $315,605.35.
Defendant moved in the trial court for a new trial, claiming for the first time that plaintiff’s
counsel improperly told the jury that Watkins was drunk when he rear-ended plaintiff. Defendant
argued that counsel’s statements about Watkins’s drunkenness “greatly prejudiced” defendant,
“tainted the jury,” and “denied [defendant] a fair trial.” Plaintiff responded that defendant failed
to preserve this issue by failing to make a timely objection during the trial, and even if such
statements were made in error, the trial court cured any potential defect through its instructions to
the jury. The trial court heard oral arguments and then denied defendant’s motion.
3 Plaintiff settled her claims against Watkins before trial.
4 The trial court also established a $250 hourly rate for the junior attorney and a $100 hourly rate
for the legal assistant.

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This appeal followed.
II. DEFENDANT’S REQUEST FOR NEW TRIAL
Defendant argues that plaintiff’s counsel erroneously referred to Watkins’s intoxication
during closing arguments, which was not relevant to the issues at trial regarding allowable PIP
expenses. As a result, counsel improperly invoked the passions and prejudice of the jury, as well
as the trial court, requiring a new trial. We agree that the statements were erroneous but conclude
that the error was harmless.
Evidentiary objections must be preserved through a timely objection made at trial,
Heshelman v Lombardi, 183 Mich App 72, 83; 454 NW2d 603 (1990), that specifies the same
ground for objection asserted on appeal. Genna v Jackson, 286 Mich App 413, 423; 781 NW2d
124 (2009). Likewise, to preserve a claim of attorney misconduct, a party must object and request
a curative instruction or move for a mistrial. See Van Every v Southeastern Michigan Transp Auth,
142 Mich App 256, 267; 369 NW2d 875 (1985). Defendant did not timely object to plaintiff’s
closing argument or request curative instructions but rather raised this issue for the first time in a
motion for new trial. Therefore, this issue is not preserved. See Heshelman, 183 Mich App at 83.
Generally, we review for abuse of discretion a trial court’s decision regarding a motion for
new trial. Campbell v Human Servs Dep’t, 286 Mich App 230, 243; 780 NW2d 586 (2009).
However, unpreserved claims of attorney misconduct in civil cases are also subject to review as
follows:
[T]he appellate court should first determine whether or not the claimed error was
in fact error and, if so, whether it was harmless. If the claimed error was not
harmless, the court must then ask if the error was properly preserved by objection
and request for instruction or motion for mistrial. If the error is so preserved, then
there is a right to appellate review; if not, the court must still make one further
inquiry. It must decide whether a new trial should nevertheless be ordered because
what occurred may have caused the result or played too large a part and may have
denied a party a fair trial. [Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-
103; 330 NW2d 638 (1982) (footnotes omitted).]
MCR 2.611(A)(1)(b) permits a trial court to grant a motion for a new trial if the prevailing
party committed “misconduct,” affecting the moving party’s substantial rights.5 “Where improper
conduct by one or both parties influences the outcome of a trial, an appellate court may reverse
although the appellant’s attorney did not seek to cure the error.” Reetz, 416 Mich at 102. However,
the moving party must show that the misconduct rose to a level warranting relief—courts will not
grant new trials for isolated improper comments or overzealous advocacy that was not unfairly
prejudicial or designed to distract the jury from the issues. See Estate of Carlsen by Carlsen v
5 See also MCR 2.613(A), which provides that “an error or defect in anything done . . . by the court
or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating,
modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears
to the court inconsistent with substantial justice.”

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Southwestern Michigan Emergency Servs, PC, 338 Mich App 678, 700; 980 NW2d 785 (2021).
“An attorney’s comments usually will not be cause for reversal unless they indicate a deliberate
course of conduct aimed at preventing a fair and impartial trial.” Hunt v Freeman, 217 Mich App
92, 95; 550 NW2d 817 (1996).
In this case, plaintiff made three remarks during her trial testimony that indicated Watkins
was drunk—one during direct examination and two during cross-examination. Defendant did not
object to any of this testimony when it was given. Later, in closing, plaintiff’s counsel stated twice
that plaintiff was “rear-ended at 45 miles an hour by a drunk driver.” Defendant did not object to
either statement or request curative instruction.
First, we must determine whether the comments of plaintiff’s counsel constitute error. See
Reetz, 416 Mich at 102. As a starting point, the jury was asked to resolve three issues: (1) whether
plaintiff suffered accidental bodily injury as a result of the subject accident, (2) whether the
medical services and treatment that she received from Michigan Head and Spine Institute and from
Spine and Brain Surgery Specialists were reasonable and necessary as a result of her injuries (i.e,
allowable expenses), (3) and whether the no-fault benefits to pay for the allowable expenses were
overdue.
The fact that plaintiff was rear-ended and the speed at which she was hit are both relevant
to whether she was injured in the car crash. However, the possible inebriation of the other driver
was not relevant to any of the issues. Irrelevant evidence is not admissible. MRE 402.
Accordingly, plaintiff’s counsel erred when he referred to plaintiff’s irrelevant, inadmissible
testimony about Watkins being drunk. See Matter of Estate of Ellis, 143 Mich App 456, 461; 372
NW2d 592 (1985) (noting that “counsel is not allowed to refer to clearly inadmissible evidence”).
We then must then determine whether the error was harmless or whether the error “played
too large a part and may have denied [defendant] a fair trial.” Reetz, 416 Mich at 102. The jury
found that plaintiff sustained an accidental bodily injury arising out of the operation of a motor
vehicle. The jury also concluded that plaintiff’s medical bill from Michigan Head and Spine
Institute was reasonable and necessary to treat her injuries, i.e., an allowable expense, and that
payment was overdue. However, the jury determined that plaintiff’s bill from Spine and Brain
Surgery Specialists was not an allowable expense.
A review of the record indicates that the jury’s verdict was supported by the evidence at
trial and was not the result of prejudice. Plaintiff presented sufficient evidence that she injured her
neck in the subject car accident, including the deposition testimony of two of her treating
physicians, Dr. Tarabishy and Dr. Elia. Dr. Elia also testified that the bill from Michigan Head
and Spine Institute for plaintiff’s neck surgery in February 2022 was necessary to treat the neck
injury sustained in the accident. Finally, when corresponding with Medicare, defendant
acknowledged that plaintiff had injured her neck in the subject accident and was treated for that
injury. Therefore, the jury had a basis for determining that plaintiff was injured in the subject
crash and underwent surgery with Dr. Elia at Michigan Head and Spine Institute in February 2022
to help treat that injury.
Nevertheless, defendant argues that plaintiff’s counsel’s comments about Watkins’s
drunkenness infected the jury with bias, precluding a fair verdict. In support of this assertion,

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defendant points to some comments that the trial court made in the post-judgment attorney-fee
motion hearing. The comments were as follows:
You know, I talked to the jury afterward and to a person the concern that they
expressed to me that, my goodness, if I get rear-ended at 45 miles an hour by a
drunk driver and this is how my insurance company is going to treat me, I’m scared.
These folks were scared. That this is the decisionmaking (sic) that took place.
These comments do not support that the jury was fixated on Watkins’s drunkenness. The trial
court provided three characteristics of the accident: (1) Watkins rear-ended plaintiff, (2) Watkins
was driving 45 miles an hour at the time of crash, and (3) Watkins was drunk at the time of the
crash. Thus, the thrust of the comment was that plaintiff’s accident was Watkins’s fault. The jury
verdict, which as discussed, was supported by the evidence at trial, clearly indicates that the jury
was not so impassioned by any aspect of Watkins’s fault to simply award plaintiff a sweeping
victory. On the contrary, the verdict indicates that the jury dispassionately reviewed the evidence
and determined that one medical bill was reasonable and related to the accident, and one was not.
The record thus does not support that the jury was prejudiced against defendant or that the
comments during trial that Watkins was drunk “played too large a part” in the jury’s verdict. See
Reetz, 416 Mich at 102.
Importantly, the trial court also gave several curative instructions that mitigated any
prejudicial effect of the improper comments. See Zaremba Equip, Inc v Harco Nat’l Ins Co, 302
Mich App 7, 25; 837 NW2d 686 (2013) (“Jurors are presumed to follow their instructions, and
instructions are presumed to cure most errors.” (quotation marks and citation omitted)). Although
defendant did not request curative instructions and the trial court did not address the statements
about Watkins’s drunkenness specifically, the trial court instructed the jury that “[s]ympathy must
not influence [their] decision.” Likewise, the jury was instructed to “carefully evaluate the
evidence and resist any urge to reach a verdict that is influenced by bias against any party, witness
or lawyer.” The trial court further instructed the jury that, although defendant was a corporation,
defendant was “entitled to the same fair and unprejudicial treatment as an individual.” Finally, the
trial court identified all the issues without any reference to who was at fault for the subject accident
and instructed the jury that plaintiff bore burden of proof. These instructions were sufficient to
cure the potentially prejudicial effect of plaintiff’s counsel’s comments about Watkins being
drunk. See id.
Furthermore, the trial court’s comment in the post-trial motion hearing was part of a
lengthy colloquy, in which the trial court evaluated all aspects of the case, without any further
reference to the jury’s deliberations. The trial court explained that, although plaintiff was
medically fragile prior to the subject car accident, defendant was obliged to “take [its] opposing
client as [it] receive[s] them.” Even if plaintiff “had 1000 surgeries before,” she had subsequent
surgeries that her doctors testified were “clearly related” to her accident. The trial court went on
to critique the trial testimony of defendant’s claims adjusters, describing them as “cavalier” in their
handling of plaintiff’s claim. The trial court also noted that it “literally begged” defense counsel
to settle the case within the $50,000 policy cap. The trial court concluded by characterizing all of
its statements as “dicta” and “editorial” before transitioning into its analysis of the merits of
plaintiff’s motion for attorney fees, without any additional reference to Watkins’s inebriation or
the jury deliberations. The trial court’s assessment of the parties and case does not indicate bias

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against defendant. Rather, these comments illustrate the overall weakness of defendant’s position
before and during the trial.
Similarly, the trial court’s comments at the post-trial evidentiary hearing also do not reflect
that the trial court was prejudiced by plaintiff’s counsel’s comments about Watkins’s inebriation.
In fact, during the evidentiary hearing, the trial court did not mention drunkenness or fault or the
circumstances of the accident at all. The record simply does not support that plaintiff’s counsel’s
isolated comments about Watkins being drunk were a “deliberate course of conduct aimed at
preventing a fair and impartial trial,” Hunt, 217 Mich App at 95, or that the comments actually had
any such effect on the jury or the trial court. See Reetz, 416 Mich at 103. Accordingly, the trial
court did not abuse its discretion by denying defendant’s motion for a new trial on the basis of
plaintiff’s counsel’s alleged misconduct. See Campbell, 286 Mich App at 243.
III. PLAINTIFF’S REQUEST FOR ATTORNEY FEES
Defendant raises several arguments regarding the trial court’s award of attorney fees to
plaintiff, none of which are availing.
A. STANDARDS OF REVIEW
An award of attorney fees under MCL 500.3148(1) presents a mixed question of law and
fact. Abdulla v Progressive Southeastern Ins Co, ____ Mich App ____, ____; ____ NW3d ____
(2024) (Docket Nos. 364797 and 364866); slip op at 4. Underlying questions of law are reviewed
de novo, and underlying findings of fact are reviewed for clear error. Id. “There is clear error
when there is no evidentiary support for the factual findings or where there is supporting evidence,
but the reviewing court is nevertheless left with a definite and firm conviction that the trial court
made a mistake.” Augustine v Allstate Ins Co, 292 Mich App 408, 424-425; 807 NW2d 77 (2011)
(quotation marks, citation, and brackets omitted).
That said, we review a trial court’s ultimate decision to award attorney fees and the
determination of the reasonableness of the fees for an abuse of discretion. Id. at 424. “[A]n abuse
of discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Id. Likewise, “[a] trial court necessarily abuses its discretion when it makes an error
of law.” Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016).
B. UNREASONABLE DELAY
Defendant first argues that attorney fees were not appropriate because there was no
unreasonable delay in payment. We disagree.
The no-fault act provides for a system of mandatory no-fault automobile insurance, which
requires Michigan drivers to purchase PIP insurance. The no-fault act was intended to provide
insured persons who have sustained injuries in automobile accidents with assured, adequate, and
prompt compensation for certain economic losses. Shavers v Attorney General, 402 Mich 554,
578-579; 267 NW2d 72 (1978). To that end, the act provides for penalty interest and attorney fees
when an insurer unreasonably refuses to make timely benefits payments. MCL 500.3142(2) and
(4); MCL 500.3148(1). The penalty-interest and attorney-fees provisions create an “axiom” under
the no-fault act that insurers “must pay PIP benefits to claimants promptly and sort out priority

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and reimbursement issues later.” Esurance Prop & Cas Ins Co v Mich Assigned Claims Plan, 507
Mich 498, 519; 968 NW2d 482 (2021). “That axiom is actualized by the very real possibility that
steep penalties will be assessed against an insurer that drags its feet in paying PIP benefits to
claimants.” Id.
Under the penalty-interest provision, benefits “are payable as loss accrues,”
MCL 500.3142(1), and benefits “are overdue if not paid within 30 days after an insurer receives
reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2). Overdue
payments are subject to a penalty of 12% interest paid to the beneficiary for the period in which
benefits are overdue. MCL500.3142(4). “Penalty interest must be assessed against a no-fault
insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the
insurer’s good faith in not promptly paying the benefits.” Morales v State Farm Mutual Ins Co,
279 Mich App 720, 730; 761 NW2d 454 (2008).
In turn, the attorney-fee provision provides:
[A]n attorney is entitled to a reasonable fee for advising and representing a claimant
in an action for personal or property protection insurance benefits that are overdue.
The attorney’s fee is 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).]
Thus, “MCL 500.3148(1) establishes two prerequisites for the award of attorney fees.” Moore v
Secura Ins, 482 Mich 507, 517; 759 NW2d 833 (2008). First, benefits must be overdue
under MCL 500.3142(2). Id. “Second, in postjudgment proceedings, the trial court must find that
the insurer ‘unreasonably refused to pay the claim or unreasonably delayed in making proper
payment.’ ” Id., quoting MCL 500.3148(1).
“If a claimant establishes the first prerequisite, a rebuttable presumption arises regarding
the second,” and “[t]he insurer then bears the burden of justifying the refusal or delay.” Brown v
Home-Owners Ins Co, 298 Mich App 678, 690-691; 828 NW2d 400 (2012). “The insurer can
meet this burden by showing that the refusal or delay is the product of a legitimate question of
statutory construction, constitutional law, or factual uncertainty.” Ross v Auto Club Group, 481
Mich 1, 11; 748 Nw2d 552 (2008). A trial court “must examine the circumstances as they existed
at the time the insurer made the decision, and decide whether that decision was reasonable at that
time.” Brown, 298 Mich App at 691. “[A]n insurer’s initial refusal to pay benefits under
Michigan’s no-fault insurance statutes can be deemed reasonable even though it is later determined
that the insurer was required to pay those benefits.” Moore, 482 Mich at 525. “[T]he determinative
factor . . . is not whether the insurer ultimately is held responsible for benefits, but whether its
initial refusal to pay was unreasonable.” Id. at 522.
In this case, as noted, the jury determined that the payment of the Michigan Head and Spine
Institute for the February 2022 neck surgery was overdue under MCL 500.3142(2). That is,
defendant had reasonable proof of the fact and of the amount of loss sustained but still refused to
pay the claim within 30 days. See MCL 500.3142(2). In light of this jury determination, the first
prerequisite was established, and defendant must overcome the presumption that its refusal to pay
that bill within 30 days was unreasonable. See Brown, 298 Mich App at 690-691. Defendant

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argues that it carried this burden because neither the medical bill nor the associated medical records
specified that the treatment was for an injury related to the subject accident, so defendant’s denial
was based on a legitimate factual uncertainty. Defendant further contends that its factual
uncertainty is justified by Dr. Kalkanis’ subsequent determination that plaintiff did not suffer any
spinal injury as a result of the subject accident. This is not persuasive.
Defendant correctly notes that plaintiff had a history of neck pain and spinal problems that
existed before the subject accident. Certainly, plaintiff’s medical history could create legitimate
factual uncertainty regarding whether her February 2022 neck surgery was for a new injury related
to the subject accident or for a pre-existing condition.
However, although defendant argues that the bill did not indicate a relationship to the
accident, in July 2022, when corresponding with Medicare, defendant acknowledged that plaintiff
had injured her neck in the subject accident and was treated for that injury. Defendant also
indicated that it had the corresponding medical documentation of the same. Accordingly,
sometime between when defendant received the neck surgery bill in April and sent the letter to
Medicare in July, defendant concluded that the accident and neck injury were related. Thus, the
trial court did not abuse its discretion when it determined that defendant’s refusal to pay was
unreasonable. See Brown, 298 Mich App at 691.
Unfortunately for defendant, Dr. Kalkanis’ record review in October 2022 does not change
this result. Defendant arranged for Dr. Kalkanis to perform a review of records six months after
defendant received the bill for the neck surgery and three months after defendant wrote to Medicare
that plaintiff had injured her neck in the accident. As a result of his record review, Dr. Kalkanis
opined that plaintiff had, at worst, suffered soft tissue injuries in the subject crash. Although an
IME—or in this case, an independent record review—is a legitimate investigatory tool for an
insurer, MCL 500.3151, the relevant circumstances are those that exist at the time that the bill
payment is due. See Brown, 298 Mich App at 691. In this case, the record review was conducted
three months after defendant acknowledged the relatedness between plaintiff’s neck injury and the
subject crash. Accordingly, the record review does not retroactively create a factual uncertainty
that clearly did not exist as early as July 2022. See id.
Accordingly, defendant has not met its burden of justifying the refusal to make the
requested payments or to otherwise rebut the presumption that its failure to pay these benefits
when they were initially requested was unreasonable. See id. at 690-691. Therefore, the trial court
did not abuse its discretion by concluding that defendant failed to rebut the presumption of
unreasonableness and awarding plaintiff attorney fees pursuant to MCL 500.3148(1).
C. REASONABLE HOURLY RATE
Defendant next argues that even if attorney fees were appropriate, the hourly rate adopted
by the trial court was inherently unreasonable. We disagree.
In Pirgu, 499 Mich at 281, our Supreme Court outlined the three-step process for a trial
court to determine a reasonable attorney fee award under MCL 500.3148(1). First, the trial court
“must begin its analysis by determining the reasonable hourly rate customarily charged in the
locality for similar services.” Id. Second, “[t]he trial court must then multiply that rate by the

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reasonable number of hours expended in the case to arrive at a baseline figure.” Id. Third, the
trial court must consider a synthesized list of factors to determine whether an adjustment of the
baseline fee is appropriate. Id.6
The Pirgu factors are as follows:
(1) the experience, reputation, and ability of the lawyer or lawyers
performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular
employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent. [Id. at 282.]
“These factors are not exclusive, and the trial court may consider any additional relevant factors.”
Id. “In order to facilitate appellate review, the trial court should briefly discuss its view of each of
the factors above on the record and justify the relevance and use of any additional factors.” Id.
“[I]n determining the baseline fee in accordance with Pirgu, the court is to include all attorney
time that was relevant to recovery of the overdue benefit, even if that time was also relevant to
other aspects of the case.” Komendat v Gifford, 334 Mich App 138, 158; 964 NW2d 75 (2020).
However, “[a]ttorney time that was related only to other aspects of the action, and did not bear on
the benefits unreasonably withheld, should be excluded from the baseline.” Id.
In this case, after determining that attorney fees were appropriate under MCL 500.3148,
the trial court’s first mandate was to establish a reasonable hourly rate. See Pirgu, 499 Mich
at 281. As part of this first step, “trial courts have routinely relied on data contained in surveys
such as the Economics of the Law Practice [(ELP)] Surveys that are published by the State Bar of
Michigan.” Heaton v Benton Const Co, 286 Mich App 528, 543; 780 NW2d 618 (2009), quoting
Smith v Khouri, 481 Mich 519, 530; 751 NW2d 472 (2008). To that end, plaintiff’s counsel
requested an hourly rate of $900, which was in the 95th percentile of the ELP survey for plaintiff-
side personal injury attorneys. The hourly rate in the 75th percentile was $500. The trial court
6 The list is synthesized from factors in Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321
NW2d 653 (1982), as well as MRPC 1.5(a), which prohibits lawyers from charging “excessive
fees.”

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considered this range, as well as the hourly rates in Macomb County, where the firm was located,
which were $375 in the 75th percentile and $497 in the 95th percentile. While considering which
percentile would be appropriate for this case, the trial court acknowledged the complexity and
volume of plaintiff’s treatment and noted that “very few” attorneys would try a case in which there
were 19 pre-incident spine surgeries and a $50,000 insurance cap. Finally, the trial court also
considered that the experts who testified all charged at least $1,000 for an hourly rate. Therefore,
the trial court determined that “a rate of $750 is an appropriate and reasonable fee” for the legal
services of the primary attorneys.
To shore up this rate, the trial court considered the Pirgu factors.7 Regarding factor one—
the experience, reputation, and ability of the lawyers—the trial court reflected that based on the
court’s own experience with plaintiff’s counsel, they had “always practiced with integrity, with
passion, with phenomenal competence, and they get results.” The trial court also took judicial
notice of the firm’s “successes in the last year” and characterized plaintiff’s counsel as “good and
decent people” and “exceptional trial lawyers.” The trial court concluded its analysis by
expressing its respect for plaintiff’s counsel, stating that they “certainly are entitled to be
compensated at the level of $750.” There is nothing in the record to refute the trial court’s own
impressions of plaintiff’s counsel’s experience, reputation, and ability during the many years that
they litigated in the trial court’s own courtroom.
Regarding factor two—the difficulty of the case—the trial court determined that “although
it was a two-day case, it was highly complex from a factual, medical and legal standpoint in terms
of the number of strategies and the defenses and such that were put in the way of the Plaintiff
team.” The trial court also found that plaintiff’s counsel “had to master significant areas of
medicine” and that “this case required . . . an [in]ordinate amount of time and preparation and
expertise that was displayed seamlessly, both by way of deposition and certainly at trial by way of
[plaintiff’s counsel’s] presentation.” The record supports this assessment. On appeal, defendant
concedes that plaintiff had “a lengthy pre-accident medical history, including at least 116 surgeries
since 2009 and no less than 19 spinal surgeries.” Defendant also acknowledged that both of
plaintiff’s testifying physicians described her condition as “complicated due to her extensive
surgery history.” Accordingly, the trial court did not clearly err by weighing this factor in favor of
the reasonableness of the hourly rate.
As to factor three—the results obtained—the trial court determined that plaintiff’s counsel
achieved “a tremendous result giv[en] the facts and difficulty of the case.” The jury found in favor
of plaintiff regarding the Michigan Head and Spine Institute bill, which totaled over $72,000. The
trial court noted that the case evaluation award, on the other hand, was only $10,000.8 In light of
the favorable jury verdict on all questions but the relatedness of the October 2023 surgery, as well
as the fact that the recoverable amount far exceeded the evaluation award amount, this assessment
7 The trial court credited these factors to Smith, 481 Mich at 528-529, but Smith predates Pirgu,
which discussed and then subsumed the factors discussed in Smith.
8 The case evaluation award results summary indicates that the award was $20,000, ostensibly
$10,000 for no-fault benefits and $10,000 for pain and suffering.

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of the reasonableness of the fee is not clearly erroneous. See Augustine, 292 Mich App at 424-
425.
Regarding factor four—the expenses incurred—the trial court made the following remarks:
And the Court does believe that given the immense amount of resources,
both time and money to take this case to trial, [plaintiff’s counsel] certainly earned
every penny of $750 squarely within, perhaps within the upward limits of the PIP,
but certainly squarely within the more appropriate denomination of this case as a
personal injury case in light of all of the complexities and manner in which this case
was conducted.
The trial court did not elaborate on the “immense” resources that plaintiff’s counsel incurred, but
plaintiff’s counsel presented an invoice of “reimbursable expenses” as part of its motion for
attorney fees. According to the invoice, plaintiff’s counsel incurred $12,633.08 in expenses. On
appeal, defendant does not contest the trial court’s assessment of this factor.
The trial court weighed factor five—the professional relationship with the client—in favor
of plaintiff’s counsel. In particular, the trial court expressed that counsel “certainly has a close
relationship over two years with this [p]laintiff” that “certainly is at risk when the case is taken to
trial.” The trial court further determined that “[t]his risk has real value and must be reflected in
the amount of the fees.” On appeal, defendant posits that a two-year client relationship is typical
of cases that go to trial, such that weighing this factor in favor of plaintiff’s counsel is clearly
erroneous. However, defendant does not cite any authority for its conclusion that such a “typical”
duration would not weigh in favor of the reasonableness of the hourly rate used by the trial court.
Factor six assesses the impact of the case on other employment opportunities for counsel.
The trial court stated that it was “well aware” that plaintiff’s counsel was “all in” on plaintiff’s
case, which the court characterized as “all encompassing.” The trial court further stated that
“[c]ertainly other work . . . went either undone or other cases . . . were left by the wayside that
could have been taken up, but for [plaintiff’s counsel] litigating a 50,000 cap case.” These details
factored into the court’s determination that an hourly rate of $750 was reasonable. In light of the
prior discussion about the complexities of the case, this characterization is not clearly in error.
Regarding factor seven—the time limitations imposed by the client or circumstances—the
trial court “[took] notice that this case was adjourned a couple of prior times.” As a result, “the
prep time and then downtime and then prep time again,” weighed in favor of the reasonableness
of the hourly rate. Indeed, the Register of Action reflects two trial adjournments, such that the
trial court did not clearly err in its assessment of factor seven, either.
Finally, the trial court considered factor eight—whether the fee was fixed or contingent.
On this point, the trial court acknowledged the contingent fee arrangement and succinctly stated:
“[W]e’ll go back to that idea of risk. When you have that risk involved, it has to factor into the
analysis of this hourly rate.” Defendant offers no rebuttal to this determination.
In sum, the trial court considered the ELP survey and selected an hourly rate between the
75th and 95th percentile of personal injury attorneys. To justify that particular rate, the trial court
dutifully marched through the relevant factors, weaving in the court’s own experience regarding

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the case and counsel. In light of the foregoing synopsis of the factors, the trial court’s ultimate
determination that plaintiff’s counsel was entitled to an hourly rate of $750 was not an abuse of
discretion. See Augustine, 292 Mich App at 424-425.
D. EXPENDED HOURS
Defendant also argues that plaintiff failed to present sufficient evidence that the fees were
actually incurred and that plaintiff’s counsel was required to keep contemporaneous time records,
rather than compiling expended hours later when plaintiff sought attorney fees. We disagree.
For this issue, the trial court held an evidentiary hearing in which plaintiff’s counsel
presented affidavits, testimony, invoices, and spreadsheets regarding the hours expended by
plaintiff’s counsel. Defendant argues on appeal that plaintiff’s multi-person legal team led to
“duplicative” hours. On that point, the trial court noted that trials are “collaborative” and represent
a “team effort,” such that it is not unusual to have some duplication. Nevertheless, at the
conclusion of the hearing, the trial court did strike certain hours as duplicative, as well as several
hours incurred because of the “chattiness” of both plaintiff and counsel’s legal assistant. Finally,
the trial court struck all hours relating to the claims against Watkins, which were settled before
trial and were “not part of this particular PIP litigation.” Although defendant generally
characterizes plaintiff’s billing as “contradictory, unsupported, and excessive,” defendant has not
identified anything specific that would require vacating the award or even reducing it.
Finally, defendant contends that it was unacceptable for plaintiff’s counsel to compile its
expended hours after the trial concluded. According to defendant, time records of expended hours
must be kept contemporaneously. In support of this assertion, defendant relies on Augustine, 292
Mich App at 408. In that case, this Court had previously remanded an appeal from an attorney-
fee award in favor of the plaintiff for the trial court to follow the analytical framework set forth by
our Supreme Court in Smith, 481 Mich at 528, which has since been incorporated into Pirgu, 499
Mich at 281-282. Following remand, this Court concluded that the trial court’s determination of
the number of hours expended was not subject to meaningful review because of “the meager state
of the record.” Id. at 432. Even though the plaintiff sought attorney fees in her complaint from
the outset of the litigation, she “did not demonstrate by a document, an example, or with specific
testimony that a billable item was performed in the amount of time listed or, for that matter, even
completed.” Id. Accordingly, Augustine supports the proposition that the fee applicant must
submit detailed billing records, which the court must examine and opposing parties may contest
for reasonableness. Id. at 432-434. But nothing in Augustine—or any other case this Court is
aware of—requires contemporaneous timekeeping. Therefore, defendant’s argument does not
warrant relief.
Affirmed.
/s/ Allie Greenleaf Maldonado
/s/ Mariam S. Bazzi
/s/ Michelle M. Rick

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