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STATE OF MICHIGAN 

COURT OF APPEALS 

DIANE BRADY, as Guardian of THOMAS 

ROBERT MIDDLETON, 

 Plaintiff-Appellant, 

UNPUBLISHED 

June 21, 2016 

v No. 324864 

Oakland Circuit Court 

HOME-OWNERS INSURANCE COMPANY, LC No. 2012-128435-NF 

 Defendant-Appellee. 

Before: MURRAY, P.J., and STEPHENS and RIORDAN, JJ. 

PER CURIAM. 

 Plaintiff, as guardian of her son, Thomas Robert Middleton, brought this action for 

recovery of 24-hour attendant care no-fault benefits. Following a trial, a jury concluded that 

plaintiff was entitled to a reasonable hourly daytime rate of $11.44, the rate then paid by 

defendant, Home-Owners Insurance Company, but found that the hourly nightly rate of $7.40 

paid by defendant was unreasonable, and awarded a reasonable hourly nighttime rate of $11.44. 

The difference in the nighttime rates between October 2011 and May 31, 2014, resulted in a 

judgment of $27,317.69 in favor of plaintiff. At trial, plaintiff asserted that $30 an hour was the 

reasonable rate for the 24-hour attendant care services provided to her son in light of his 

behavioral and cognitive injuries caused by a traumatic brain injury sustained in an automobile 

accident. Plaintiff now appeals as of right. We affirm in part, reverse in part, and remand for a 

new trial consistent with this opinion. 

I. FACTS AND PROCEEDINGS 

 In August 2011, 18-year-old Thomas Middleton (“Tommy”) suffered a traumatic brain 

injury in an automobile accident. Before the accident, Tommy had been diagnosed with 

Asperger’s syndrome and attention deficit/hyperactivity disorder (ADHD). Following the 

accident, Tommy required an extensive stay in both a hospital and rehabilitation facility. 

Doctors determined that a home setting was more beneficial than an institutional setting. 

Tommy was ultimately discharged to plaintiff’s home, but his doctor prescribed 24-hour 

attendant care. Plaintiff established a corporate entity that employed family members and a close 

friend to care for Tommy. Tommy’s cognitive deficits also caused anger management, impulse, 

and safety issues, and triggers for those issues included alteration in scheduling and unfamiliar 
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events. Consequently, the caregivers had to recognize Tommy’s triggers and act accordingly. 

Tommy’s home care was supplemented by various therapies that occurred outside the home. 

 Because the 24-hour attendant care prescription did not contain specific direction, 

defendant’s representative determined that it was the lowest level of supervision required and 

could be fulfilled by a home health aide. Thus, the rate for the service was paid at $11.44 for 

daytime hours and $7.40 for nighttime hours. 

 Although Tommy had a case manager, plaintiff was a registered nurse and she performed 

some of the functions of a case manager. She attended all of Tommy’s doctor appointments and 

scheduled, coordinated, and provided direction to all of Tommy’s caregivers. The home 

business plaintiff established managed the appropriate deductions and payroll for Tommy’s 

caregivers. The caregivers were paid $10.00 an hour because that was all plaintiff could afford 

and did not include any payment to plaintiff. However, plaintiff did not submit a request for 

payment as a case manager, registered nurse, or business to defendant. 

 After this action was filed, Tommy’s doctor altered the prescription for 24-hour attendant 

care to provide that he needed a behavioral technician or life skills trainer, not a home health 

aide. Although plaintiff presented evidence that supported a range of hourly rates for the 

position, she requested $30 an hour at trial. Defendant disputed that a change in rate was 

warranted, particularly because Tommy’s caregivers did not have specialized medical training, 

and plaintiff acknowledged that the behavioral training therapy was paid for by defendant 

outside the home setting. Ultimately, the jury concluded that $11.44 was a reasonable rate for 

the attendant care on a 24-hour basis. 

II. ANALYSIS 

 Plaintiff first argues that the trial court erred by instructing the jury that agency rates for 

similar attendant care services were not relevant and by failing to instruct the jury that 

comparable agency rates was an appropriate consideration. A claim of instructional error is 

reviewed de novo, but the trial court’s determination whether a jury instruction is applicable and 

accurate is reviewed for an abuse of discretion. Alfieri v Bertorelli, 295 Mich App 189, 197; 813 

NW2d 772 (2012). Whether a supplemental jury instruction is warranted is also reviewed for an 

abuse of discretion. Guerrero v Smith, 280 Mich App 647, 660; 761 NW2d 723 (2008). An 

abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable 

and principled outcomes. Nelson v Dubose, 291 Mich App 496, 500; 806 NW2d 333 (2011). 

 “Jury instructions are reviewed in their entirety to determine whether they accurately and 

fairly presented the applicable law and the parties’ theories.” Guerrero, 280 Mich App at 660. 

The instructions should not omit material issues, defenses, or theories that are warranted by the 

evidence. Ward v Consol Rail Corp, 472 Mich 77, 83-84; 693 NW2d 366 (2005). “When the 

standard jury instructions do not adequately cover an area, the trial court is obligated to give 

additional instructions when requested, if the supplemental instructions properly inform the jury 

of the applicable law and are supported by the evidence.” Bouverette v Westinghouse Electric 

Corp, 245 Mich App 391, 401-402; 628 NW2d 86 (2001). A supplemental instruction must be 

modeled as nearly as possible to the style of the standard jury instructions and must be “concise, 

understandable, conversational, unslanted, and nonargumentative.” Id. at 402. 
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 A no-fault claim requires an insured to establish that he or she is entitled to benefits for 

accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor 

vehicle. Cooper v Auto Club Ins Ass’n, 481 Mich 399, 407; 751 NW2d 443 (2008). Personal 

injury protection benefits are payable for allowable expenses incurred for reasonably necessary 

products, services, and accommodations for the injured person’s care, recovery, or rehabilitation. 

MCL 500.3107(1)(a). The plaintiff must prove that the charge for the service was reasonable, 

the expense was reasonably necessary, and it was incurred. Williams v AAA Mich, 250 Mich 

App 249, 258; 646 NW2d 476 (2002). 

 Attendant care services need not be performed by trained medical personnel. Van Marter 

v American Fidelity Fire Ins Co, 114 Mich App 171, 180; 318 NW2d 679 (1982). In Hardrick v 

Auto Club Ins Ass’n, 294 Mich App 651, 665; 819 NW2d 28 (2011), this Court held that “the 

market rate for agency-provided attendant-care services bears relevance to establishing a rate for 

family-provided services.” In Douglas v Allstate Ins Co, 492 Mich 241, 276; 821 NW2d 472 

(2012), our Supreme Court concluded that a fact-finder should focus on the individual’s 

compensation, holding “that a fact-finder may base the hourly rate for a family member’s 

provision of attendant care services on what health care agencies compensate their employees, 

but what health care agencies charge their patients is too attenuated from the appropriate hourly 

rate for a family member’s services to be controlling.” Although the Douglas Court recognized 

that it was not addressing an admissibility issue, id., at 276 n 79, it nonetheless acknowledged 

that admission of an agency rate may be helpful in calculating a rate, though it could not be 

uncritically adopted. Id. at 276. Importantly, the Court stated that an agency rate may be 

relevant particularly when “the individual caregiver has overhead and administrative costs 

similar to those of a commercial agency.” Id. 

 Plaintiff requested a jury instruction that allowed the jury to consider agency rates as 

evidence of an appropriate rate for the family members’ care for Tommy. However, contrary to 

the holding in Hardrick and the statements in Douglas, the trial court precluded the jury from 

considering any evidence of rates charged by agencies: 

 “Reference to rates charged by agencies to insurers or other entities (with 

regard to similar attendant care services as those being provided to Middleton) are 

irrelevant and should not be considered as part of your decision on an appropriate 

hourly rate (for such care).” 

This instruction was provided, despite the fact that Hardrick stated that agency rates are at least a 

minimally relevant factor for a jury to consider in a home attendant care situation, and Douglas’s 

specific reference to admissibility of agency rates when a party (as plaintiff testified to at trial) 

has overhead costs similar to that of a commercial agency. As defendant acknowledges on 

appeal1

, this was error. Hence, as to the issue of the appropriate rate for family members 

 

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 “The trial record admittedly contains some evidence from which the jury could have concluded 

that ‘the individual caregiver has overhead and administrative costs similar to those of a 

commercial agency.’ Id. Thus, Defendant concedes that Plaintiff’s ‘agency rates’ instruction 

would have been permissible.” 
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providing home attendant care services to Tommy, the trial court erred in instructing the jury that 

agency rates were irrelevant2

 and not to be considered, and in refusing to instruct as plaintiff 

requested on that issue. 

 Defendant argues that this instructional error was harmless because “the jury 

unmistakably rejected Plaintiff’s home business theory.” We cannot accept that argument 

because it would have been very difficult—if not impossible—for the jury to accept plaintiff’s 

theory when the court instructed it not to consider the exact evidence that would have allowed 

plaintiff to succeed on that theory. Nor do we agree with defendant that plaintiff’s alleged failure 

to request reimbursement from defendant for these business related expenses bars these claims. 

Plaintiff is not seeking reimbursement of those specific costs, but is instead seeking a higher rate 

for attendant care services, in part because of those business costs. And obtaining a higher rate 

for attendant care is exactly what was at issue. We therefore reverse and remand for a new trial 

only on the issue of the appropriate rate for Tommy’s attendant care services.3 We now turn to 

several evidentiary issues that may arise again at trial. 

 Plaintiff argues that the trial court erred by excluding evidence of plaintiff’s earnings as a 

registered nurse when her training was an integral part of Tommy’s care, recovery, and 

rehabilitation. A trial court’s decision to exclude evidence is reviewed for an abuse of discretion, 

but any preliminary questions of law are reviewed de novo. Barnett v Hidalgo, 478 Mich 151, 

158-159; 732 NW2d 472 (2007). An abuse of discretion occurs when the decision falls outside 

the range of reasonable and principled outcomes. Id. at 158. 

 Although plaintiff did not specifically raise in the final pretrial order the issue that 

nursing services were required and that the $30 an hour sought was consistent with the wage of a 

nurse, Wilhelm v Mustafa, 243 Mich App 478, 485; 624 NW2d 435 (2000), even if she did 

through several broad statements about attendant care and reference to her part-time nursing job, 

we nonetheless find no abuse of discretion in the trial court’s ruling. For one, the trial court did 

not abuse its discretion by holding that the evidence of plaintiff’s wage as a nurse was not 

relevant, MRE 401; MRE 402; Omian v Chrysler Group LLC, 309 Mich App 297, 308; 869 

NW2d 625 (2015), because the issue for trial was essentially whether Tommy’s attendant care 

providers should be paid at the rate of a home health aide or the higher rate of a life skills trainer 

or behavioral technician. 

 

2

 Though this evidence should have been presented to the jury, it does not, of course, have to be 

accepted by the jury. 

3

 This holding does not apply to plaintiff’s argument on appeal regarding compensation for case 

management services, for as defendant argues, those expenses were not at issue in this case. In 

plaintiff’s complaint, the joint final pretrial order, and in plaintiff’s opening statement, all that is 

placed at issue is the appropriate rate for Tommy’s attendant care services. Additionally, it was 

undisputed that Tommy had a case manager regardless of the role plaintiff voluntarily took in her 

child’s care. 
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 Even if it was an abuse of discretion, it was harmless, because the jury was aware of 

plaintiff’s employment and she argued that her nursing skills were necessary to Tommy’s proper 

care. Plaintiff testified that she was a registered nurse, continued to work on a part-time basis, 

and delineated her extensive involvement with Tommy’s care. Defendant, of course, argued that 

Tommy’s attendant care did not require a nursing degree, and so a higher rate was not 

necessitated simply because plaintiff was also a practicing nurse. As a result, the jury had 

evidence on this issue such that it could have provided a higher rate if it determined such was 

need for Tommy’s care. It did not. Under the circumstances, no error requiring reversal exists 

on this issue. 

 Plaintiff next argues that the trial court erred in using defendant’s modified verdict form 

at trial. Whether a special verdict form may be submitted to the jury is within the trial court’s 

discretion. In re Portus, 142 Mich App 799, 803-804; 371 NW2d 871 (1985). An abuse of 

discretion occurs when the trial court’s decision falls outside the range of reasonable and 

principled outcomes. D’Alessandro Contracting Group, LLC v Wright, 308 Mich App 71, 76; 

862 NW2d 466 (2014). 

 Plaintiff requested that the following verdict form be submitted to the jury: 

 We, the jury, make the following answers to the questions submitted by 

the Court: 

ALLOWABLE EXPENSES 

 QUESTION NO. 1: What is the amount of allowable expenses owed to 

the plaintiff (include only expenses not already paid by the defendant from 

August 24, 2011, through the present)? 

 $__________. 

INTEREST 

 QUESTION NO. 2: Was payment for any of the expenses or losses to 

which the plaintiff was entitled overdue? 

 (Payment for an expense or loss is overdue if it is not paid within 30 days after 

the defendant receives reasonable proof of the fact and the amount of the claim. 

An overdue claim bears interest at the rate of 12 percent per annum from the date 

the expense or loss became overdue.) 

 A. Answer: ___(yes or no) 

 B. If your answer is “yes”, what is the amount of interest owed to the 

plaintiff on overdue benefits (include only interest not already paid by the 

defendant)? $__________. 

 Defendant requested the following verdict form, which the circuit court concluded was 

more applicable to the evidence presented at trial, and thus gave it to the jury: 
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 We, the jury, make the following answers to the questions submitted by 

the Court: 

 ALLOWABLE EXPENSES 

 (Allowable expenses consist of all reasonable charges for reasonably 

necessary products, services, and accommodations for the plaintiff’s care, 

recovery, or rehabilitation.) 

QUESTION NO. 1: Beginning in October, 2011 through May 31, 2014 is 

the daytime hourly rate that has been paid by Home-Owners for attendant care 

services being provided to and for the benefit of Thomas Middleton reasonable? 

A. Answer: ___(yes or no) 

 B. If your answer is “yes”, go on to Question No. 2. If your answer is 

“no”, what is the reasonable daytime hourly rate for the attendant care services 

being provided to and for the benefit of Thomas Middleton? 

 $__________. 

QUESTION NO. 2: Beginning in October, 2011 through May 31, 2014 

is the nighttime hourly rate that has been paid by Home-Owners for attendant care 

services being provided to and for the benefit of Thomas Middleton reasonable? 

 A. Answer: ___(yes or no) 

 B. If your answer is “yes”, go on to Question No. 3. If your answer is 

“no”, what is the reasonable nighttime hourly rate for the attendant care services 

being provided to and for the benefit of Thomas Middleton. 

 $__________. 

 INTEREST 

 (Payment for an expense or loss is overdue if it is not paid within 30 days after 

the defendant receives reasonable proof of the fact and the amount of the claim. 

An overdue claim bears interest at the rate of 12 percent per annum from the date 

the expense or loss became overdue.) 

QUESTION NO. 3: Was payment for any of the expenses or losses to 

which the plaintiff was entitled overdue? 

 A. Answer: ___(yes or no) 

 B. If your answer is “yes,” what is the amount of interest owed to the 

plaintiff on overdue benefits (include only interest not already paid by the 

defendant)? 
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 $__________ 

 The standard jury form, MI Civ JI 67.01 sets forth the allowable expenses and interest 

inquiry as set forth by plaintiff, but also addressed benefits that were not at issue, such as work 

loss, replacement service expenses, and survivor’s loss that both parties had omitted from their 

respective verdict forms. The use note accompanying the jury verdict form provides, in pertinent 

part: 

 Omit any questions that are not at issue, such as whether the injuries arose 

out of the ownership, operation, maintenance, or use of a motor vehicle, and any 

benefits that are not claimed by the plaintiff. 

This Special Verdict Form may have to be modified where there are 

questions involving coordination of benefits, governmental setoffs, or other issues 

arising under the no-fault statutes that are not specifically addressed by the 

format set forth. [Emphasis added.] 

 MCR 2.515 governs special verdicts and provides, in relevant part: 

(A) Use of Special Verdicts; Form. The court may require the jury to 

return a special verdict in the form of a written finding on each issue of fact, 

rather than a general verdict. If a special verdict is required, the court shall, in 

advance of argument and in the absence of the jury, advise the attorneys of this 

fact and, on the record or in writing, settle the form of the verdict. The court may 

submit to the jury: 

 (1) written questions that may be answered categorically and briefly; 

 (2) written forms of the several special findings that might properly be 

made under the pleadings and evidence; or 

 (3) the issues by another method, and require the written findings it deems 

most appropriate. 

 The court shall give to the jury the necessary explanation and instruction 

concerning the matter submitted to enable the jury to make its findings on each 

issue. 

 A general verdict form does not delineate the facts, the law, or the application of the law 

to the facts. Sahr v Bierd, 354 Mich 353, 364; 92 NW2d 467 (1958). Conversely, 

[t]he special verdict form compels detailed consideration. But above all it enables 

the public, the parties and the court to see what the jury really has done. The 

general verdict is either all wrong or all right, because it is an inseparable and 

inscrutable unit. A single error completely destroys it. But the special verdict 

enables errors to be localized so that the sound portions of the verdict may be 

saved and only the unsound portions be subject to redetermination through a new 

trial. [Id. at 365 (citation omitted).] 
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A special verdict form is not warranted when the case is not so complex that there would be a 

necessity to submit special findings of fact. Danaher v Partridge Creek Country Club, 116 Mich 

App 305, 320; 323 NW2d 376 (1982). 

 Here, the parties submitted competing verdict forms. Plaintiff’s form mirrored the 

language of the jury verdict form contained in the civil jury instructions. However, defendant’s 

proposed form was narrowly focused on whether the rates already provided were reasonable. 

Pursuant to MCR 2.515 and In re Portus, 142 Mich App at 803-804, the trial court had the 

discretion to provide a special verdict form to the jury. Although a close call due to the narrow 

questions contained in the special verdict form, we cannot conclude that the trial court abused its 

discretion in using that form at the original trial. Defendant’s modification merely 

acknowledged that there existed separate day and nighttime rates. It is possible that the language 

contained in the special verdict form addressing the different rates reminded the jury of this fact 

and allowed the jury to make its award in the bifurcated way rates had been determined. 

 Because we are vacating the award and remanding for a new trial as specified in this 

opinion, we need not address plaintiff’s final argument that the trial court erred in denying her 

request for a new trial on the basis that the jury’s verdict was contrary to the great weight of the 

evidence. 

 Affirmed in part, reversed in part, and remanded for a new trial consistent with this 

opinion. No costs, neither party having prevailed in full. MCR 7.219(A). We do not retain 

jurisdiction. 

/s/ Christopher M. Murray 

/s/ Cynthia Diane Stephens 

/s/ Michael J. Riordan