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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

CHARLES VANBIBBER,

Plaintiff-Appellant,

UNPUBLISHED

November 20, 2018

v No. 339753

Oakland Circuit Court

PROGRESSIVE MICHIGAN INSURANCE 

COMPANY,

LC No. 2016-151796-NF

Defendant-Appellee.

Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

Plaintiff was seriously injured while riding his motorcycle and becoming involved in 

accident with a motor vehicle. His injuries ultimately necessitated a below-the-knee amputation 

of his left leg. It is undisputed that defendant is the insurer with the highest order of priority for 

payment of benefits under the no-fault act. The parties have disputed the payment of various 

claims arising from the accident; at issue in this appeal is the payment for modifications to 

plaintiff’s house to accommodate his injuries. This resulted in the trial court’s granting summary 

disposition in favor of defendant. Plaintiff appeals and we reverse and remand.

Plaintiff engaged the services of an architect to create plans for modifications to 

plaintiff’s home. A licensed contractor provided a cost estimate of approximately $528,000 for 

the modifications. Defendant received a report from an occupational therapist, who inspected 

plaintiff’s home, that opined that the necessary modifications were significantly less than that 

proposed in plaintiff’s plans.

The trial court granted summary disposition to defendant, concluding that defendant had 

no obligation to pay for the modifications sought by plaintiff because plaintiff had not yet 

actually incurred those expenses. The trial court further found that plaintiff was not entitled to 

declaratory relief and additionally denied plaintiff leave to amend his complaint.

Citing MCL 500.3107(1)(a), MCL 500.3110, and Hamilton v AAA Michigan, 248 Mich 

App 535; 639 NW2d 837 (2001), the trial court concluded the defendant was entitled to 

summary disposition because plaintiff had not yet incurred any actual expense:
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Here, Plaintiff has failed to meet his burden of establishing a question of 

fact relative to Plaintiff’s claim for unpaid home modification accommodation in 

the absence of any evidence that Plaintiff has actually incurred any such expenses 

as required under MCL 500.3107 sub (1) sub (a), and Hamilton supra compelling 

summary disposition on this issue under MCR 2.116(C)(10).

The trial court further denied plaintiff’s claim for declaratory relief:

Next, Defendant argues that Plaintiff has failed to plead his claim for 

declaratory relief with specificity, and therefore, has failed to substantiate any 

alleged controversy between the parties. In support, Defendant predominately 

relies upon Shavers versus Kelley, 402 Mich. 554 at 589, two 1978. “This 

requirement of an actual controversy prevents a court from deciding hypothetical 

issues. However, a court is not precluded from reaching issues before actual 

injuries or losses have occurred. Also, before affirmative declaratory relief can be 

granted, it is essential that a Plaintiff at a minimum pleads facts entitling him to 

the judgment he seeks and proves each fact alleged, that is, a Plaintiff must allege 

and prove a justiciable controversy.”

In response, Plaintiff relies upon paragraphs 16, 25, and 30 in his 

complaint. However, the Court’s review of said paragraphs fail to meet the 

pleading requirements for declaratory as set forth in Shavers supra, compelling 

dismissal of Plaintiff’s request for same pursuant to MCR 2.116 (C) (10). For 

these reasons, Defendant’s motion for partial summary disposition is granted 

pursuant to MCR 2.116 (C) (10), and the Court shall enter its order accordingly. 

Both parties argue that this dispute is controlled by the Supreme Court’s decision in 

Proudfoot v State Farm Mut Ins Co, 469 Mich 476; 673 NW2d 739 (2003), though they disagree 

on how it controls this case. Initially, we note that the parties disagree over whether plaintiff has 

actually incurred an expense related to the modifications. Plaintiff argues that he has paid for a 

building permit and has entered into a contract with the contractor, while defendant argues that 

plaintiff has not actually entered into a binding contract. We need not resolve this aspect of the 

dispute because Proudfoot establishes that, while entering into a contract would satisfy the 

statutory requirement that the insured actually incur an expense, 469 Mich at 476 n 4, it also 

establishes that declaratory judgment may also be obtained to establish what future expenses the 

insurer would be obligated to pay:

A trial court may enter “a declaratory judgment determining that an 

expense is both necessary and allowable and the amount that will be allowed[, but 

s]uch a declaration does not oblige a no-fault insurer to pay for an expense until it 

is actually incurred.” [469 Mich at 476, quoting Manley v Detroit Automobile 

Inter-Ins Exch, 425 Mich 140, 157; 388 NW2d 216 (1986).]

The Court further emphasizes this when it states: “We also affirm the declaratory portion of the 

judgment establishing the amount of future home modification benefits, but we vacate the 

portion of the Court of Appeals judgment that orders defendant to immediately pay the future 

home modifications expenses to the trial court.” 469 Mich at 485-486. In sum, Proudfoot stands 
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for the proposition that the trial court can establish the future obligation, if any and in what 

amount, of defendant to pay for plaintiff’s home modifications; but defendant is not obligated to 

actually make payment until the expense is actually incurred.

This then raises the issue whether plaintiff has adequately pled a claim for declaratory 

relief. The trial court found plaintiff’s initial complaint to be inadequate. Plaintiff then moved to 

file an amended complaint which set out the dispute over the modifications in greater detail. The 

trial court denied the motion without oral argument. The only reason stated in the order is 

“because the evidence before the Court shows that the amendment would not be justified.” The 

trial court’s order does not identify what evidence that is or why it would not justify an 

amendment to the complaint.

On appeal, defendant acknowledges that plaintiff may file an amended complaint with 

leave of the trial court if justice requires. MCR 2.118(A)(2). Defendant argues that it was 

properly denied because of undue delay in moving to amend and prejudice to defendant because 

discovery had already closed. As for the delay, the motion was filed the day after the trial court 

denied reconsideration of the grant of summary disposition and approximately 5 weeks after the 

initial grant of summary disposition. We do not find that to be undue delay.

As for prejudice to defendant because discovery had closed and it was approximately a 

month before the scheduled trial date, we note that the proposed amendment does not add a new 

claim, but merely expands the pleading for an existing claim for declaratory relief. Defendant 

was already on notice that, if the trial court had denied the motion for summary disposition, it 

would need to defend at trial its decision to deny the proposed modifications. We see no 

prejudice to defendant to allow plaintiff to elaborate on allegations that the trial court concluded 

were too scant. On remand, the trial court shall permit the filing of the amended complaint and 

allow plaintiff to proceed on his claim for declaratory relief.

Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. Plaintiff may tax costs.

/s/ Michael J. Kelly

/s/ David H. Sawyer

/s/ Jane E. Markey