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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- Appellant, UNPUBLISHED November 20, 2018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. K ELLY

, P .J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

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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

claim s 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 revers e 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 occup ational 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 obl igation 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 h is 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 expens e:- 2

- Here, Plaintiff has failed to meet his burden of establishing a question of

fact relative to Plaintiff ’ s claim for unpaid home modification accommodat ion 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 require ment 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 ess ential 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, De fendant ’ 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, whil e 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 ob ligated 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- 3

- 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.

T his 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 mod ifications 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 ident ify 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 disposit ion 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 schedule d trial date, we not e 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 disposi tion, it

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