PIRGU v UNITED SERVICES AUTOMOBILE ASSOCIATION

Docket No. 150834. Argued on application for leave to appeal January 14, 2016. 

Decided June 6, 2016.

Feridon Pirgu sustained closed head injuries after he was struck by a vehicle driven by an 

individual insured by defendant, United Services Automobile Association. Plaintiff, Feridon’s 

wife Lindita, was appointed as Feridon’s guardian and conservator. Plaintiff filed a complaint

against defendant in the Oakland Circuit Court after defendant discontinued payment of personal 

protection insurance (PIP) benefits previously provided for Feridon’s care. Plaintiff sought a 

judgment of $200,000 to $400,000 and the reinstatement of benefits. The jury awarded plaintiff 

$70,237.44. Plaintiff requested attorney fees totaling $220,945. Plaintiff’s counsel claimed that 

he spent more than 600 hours prosecuting the case, and that his normal billing rate was $350 an 

hour. The trial court, John J. McDonald, J., concluded that plaintiff was due attorney fees 

because defendant’s failure to pay the PIP benefits was unreasonable. The trial court noted that 

the jury awarded plaintiff approximately 33 percent of the amount plaintiff sought, and thus the 

court awarded plaintiff $23,412.48 in attorney fees, approximately 33 percent of the jury verdict. 

Plaintiff appealed in the Court of Appeals. The Court of Appeals, BECKERING, P.J., and 

HOEKSTRA, J., (GLEICHER, J., dissenting), affirmed the trial court in an unpublished opinion per 

curiam issued December 16, 2014 (Docket No. 314523). The Supreme Court scheduled oral 

argument on plaintiff’s application for leave to appeal, and in lieu of granting leave, reversed the 

trial court’s judgment, vacated the trial court’s award of attorney fees, and remanded the matter 

to the trial court for reconsideration.

In a unanimous opinion by Justice VIVIANO, the Supreme Court held:

A trial court must begin its calculation of a reasonable attorney fee under 

MCL 500.3148(1) by multiplying the reasonable hourly rate customarily charged in the locality 

for similar legal services by the reasonable number of hours expended on the case. Thereafter, a 

trial court must consider the following eight factors to determine whether an up or down 

adjustment to that baseline number is appropriate: (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, 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
(7) the time limitations imposed by the client or by the circumstances, and (8) whether the fee is 

fixed or contingent. These factors are not exclusive, and the trial court may consider additional 

relevant factors. To facilitate appellate review, a trial court should briefly discuss its view of 

each of the factors on the record and justify the relevance and use of any additional factors.

The trial court abused its discretion by failing to apply this framework, and the Court of 

Appeals’ majority erred to the extent that it affirmed the trial court’s attorney fee award.

Reversed, trial court fee award vacated, and case remanded to the trial court for 

reconsideration.

©2016 State of Michigan
FILED June 6, 2016

S T A T E O F M I C H I G A N

SUPREME COURT

LINDITA PIRGU, Guardian and 

Conservator of FERIDON PIRGU, a Legally 

Incapacitated Person,

Plaintiff-Appellant,

v No. 150834

UNITED SERVICES AUTOMOBILE 

ASSOCIATION d/b/a USAA INSURANCE 

AGENCY, INC.,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

VIVIANO, J.

The issue in this case is whether the framework for calculating a reasonable 

attorney fee set forth in Smith v Khouri1 applies to attorney fee determinations under

 1 Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Joan L. Larsen
2

MCL 500.3148(1) of the no-fault insurance act.

2

 The Court of Appeals’ majority 

affirmed the trial court’s calculation of the attorney fee award, concluding that the Smith

framework does not apply to attorney fee determinations under § 3148(1). We disagree 

with this conclusion and instead hold that the Smith framework—as described in Justice 

CORRIGAN’s concurring opinion, and as modified herein—applies to attorney fee 

determinations under § 3148(1).

3

 Therefore, in lieu of granting leave to appeal, we 

reverse the judgment of the Court of Appeals, vacate the fee award, and remand to the 

trial court for reconsideration of its attorney fee award in light of this opinion.

I. FACTS AND PROCEDURAL HISTORY

In 2008, Feridon Pirgu sustained closed head injuries after he was struck by a car 

driven by an insured of defendant, United Services Automobile Association. Plaintiff, 

Feridon’s wife Lindita, was appointed as his guardian and conservator. Shortly 

thereafter, plaintiff sought various personal protection insurance (PIP) benefits for 

Feridon. Because Feridon was uninsured, the claim was initially assigned to the 

Michigan Assigned Claims Facility, which then assigned the claim to Citizens Insurance 

Company. Following a priority dispute between Citizens and defendant, defendant was 

determined to have first priority for payment of PIP benefits. Defendant began adjusting 

the claim in 2010, and immediately discontinued payment of the benefits.

 2 MCL 500.3101 et seq.

3 Smith, 481 Mich at 538-543 (opinion by CORRIGAN, J.).
3

Plaintiff filed suit against defendant for reinstatement of the discontinued benefits 

and for attorney fees, seeking a judgment in the amount of $200,000 to $400,000.4

 

Following trial, the jury awarded plaintiff $70,237.44.5

 Thereafter, plaintiff’s counsel 

sought $220,945 in attorney fees, claiming that he had expended more than 600 hours 

prosecuting the case and that his normal billing rate was $350 per hour. Because the trial 

court concluded that defendant’s failure to pay the PIP benefits was unreasonable, it 

found that attorney fees were warranted under § 3148(1).

6

 The trial court noted that the 

jury awarded plaintiff approximately 33 percent of the judgment amount sought, and

therefore, the trial court awarded $23,412.48 in attorney fees, approximately 33 percent 

of the jury verdict.

The Court of Appeals affirmed in a split, unpublished opinion.7

 The majority 

concluded that it was bound to follow University Rehab Alliance, Inc v Farm Bureau Gen 

Ins Co of Mich,

8 which held that the Smith framework does not apply to reasonable 

 4 The variance in the amounts is accounted for by the two different hourly rates for 

attendant care that plaintiff’s counsel offered to the jury in his closing argument.

5 The jury awarded $54,720 for attendant-care benefits, $7,992 in wage-loss benefits, and 

$7,525.44 in penalty interest.

6 Defendant has not challenged this ruling.

7 Pirgu v United States Auto Ass’n, unpublished opinion per curiam of the Court of 

Appeals, issued December 16, 2014 (Docket No. 314523). We note that the Court of 

Appeals incorrectly identified defendant as the United States Automobile Association.

8 University Rehab Alliance, Inc v Farm Bureau Gen Ins Co of Mich, 279 Mich App 691,

700 n 3; 760 NW2d 574 (2008).
4

attorney fee awards under § 3148(1).9 Applying University Rehab’s totality of the 

circumstances analysis, the Court of Appeals’ majority concluded that the trial court’s 

award was reasonable. The majority gave the following justifications: (1) the results 

achieved were considerably less than the amount sought, (2) the fee award was 

commensurate with what plaintiff’s counsel would have received under a contingency fee 

arrangement, and (3) the trial court expressly found that not all of the hours plaintiff’s 

counsel expended were necessary.10

Dissenting in part, Judge GLEICHER would have held that the trial court abused its 

discretion by neglecting to consider the number of hours plaintiff’s counsel invested in 

the case and his appropriate hourly rate.11 The dissent also opined that no-fault cases 

require a court either to fully apply the factors detailed by this Court in Wood v Detroit 

Auto Inter-Ins Exch12 or to fully apply the Smith framework.13 The dissent also criticized 

the trial court for only considering the amount in question and the results achieved.14

This Court scheduled oral argument on the application, directing the parties to 

address whether reasonable attorney fee determinations under § 3148(1) are governed by 

 9 Pirgu, unpub op at 3-4.

10 Id. at 5.

11 Id. at 4 (GLEICHER, J., concurring in part and dissenting in part).

12 Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982).

13 Pirgu, unpub op at 7 (GLEICHER, J., concurring in part and dissenting in part).

14 Id. at 6-7.
5

Wood and/or Smith, and whether the trial court abused its discretion in calculating the 

attorney fees due to plaintiff.15

II. STANDARD OF REVIEW

We review a trial court’s award of attorney fees and costs for an abuse of 

discretion.

16 An abuse of discretion occurs when the trial court’s decision is outside the 

range of reasonable and principled outcomes.17 A trial court necessarily abuses its 

discretion when it makes an error of law.18 Questions of law are reviewed de novo.19

III. ANALYSIS

At issue in this case is the proper method for calculating a reasonable attorney fee 

under MCL 500.3148(1), which provides that:

An attorney is entitled to a reasonable fee . . . in an action for

personal or property insurance benefits which are overdue . . . if the court 

finds that the insurer unreasonably refused to pay the claim or unreasonably 

delayed in making proper payment.

 15 Pirgu v United Servs Auto Ass’n, 498 Mich 860 (2015).

16 Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008).

17 Id.

18 People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013).

19 Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 496; 628 NW2d 491 

(2001).
6

The statute is an exception to the “American rule,” which provides that “attorney fees 

generally are not recoverable from the losing party as costs in the absence of an exception 

set forth in a statute or court rule expressly authorizing such an award.”20

At the outset, it is helpful to understand the current state of the law regarding the 

determination of a reasonable attorney fee. In Wood, which also involved an attorney fee 

award under § 3148(1), we enumerated the following factors for determining the 

reasonableness of an attorney fee:

(1) the professional standing and experience of the attorney; (2) the skill, 

time and labor involved; (3) the amount in question and the results 

achieved; (4) the difficulty of the case; (5) the expenses incurred; and 

(6) the nature and length of the professional relationship with the client.[21]

We held that a trial court should consider the factors outlined in Wood, but that it is not 

limited to them in making its determination.22

In Smith, we reviewed a reasonable attorney fee award as part of case-evaluation 

sanctions under MCR 2.403(O), and revisited Wood’s multifactor approach.23 We held 

that a trial court must begin its reasonableness analysis “by determining the fee 

customarily charged in the locality for similar legal services,” and then multiplying that 

number “by the reasonable number of hours expended in the case.”24 After a trial court 

 20 Haliw v City of Sterling Heights, 471 Mich 700, 707; 691 NW2d 753 (2005).

21 Wood, 413 Mich at 588 (quotation marks and citations omitted).

22 Id.

23 Smith, 481 Mich at 527-529 (opinion by TAYLOR, C.J.).

24 Id. at 530-531.
7

has calculated this baseline figure, it must consider and briefly discuss on the record the

remaining Wood factors and the factors in MRPC 1.5(a)25 to determine whether any up or 

down adjustments from the base number are appropriate.26

There was a split in Smith, however, regarding whether two factors, “the amount 

in question and the results achieved” (factor 3 under Wood and factor 4 under MRPC 

1.5(a)), and “whether the fee is fixed or contingent” (factor 8 under MRPC 1.5(a)), 

should be considered when determining a reasonable attorney fee for case-evaluation 

sanctions. The lead opinion concluded that the two factors are not relevant.27 Justice 

CORRIGAN, joined by Justice MARKMAN, concurred with the reasoning and result of the 

 25 The MRPC 1.5(a) factors are:

(1) the time and labor required, the novelty and difficulty of the questions 

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the 

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and

(8) whether the fee is fixed or contingent.

26 Smith, 481 Mich at 531, 533 (opinion by TAYLOR, C.J.).

27 Id. at 534 n 20. 
8

lead opinion, but argued that there was no principled basis or textual support for 

excluding the two factors from consideration.28

Subsequently, in University Rehab, the Court of Appeals relied on our decision in 

Wood, and on the MRPC 1.5(a) factors, to uphold a reasonable attorney fee award made 

under § 3148(1).29 Pertinent to this case, the Court of Appeals held that our decision in 

Smith did not affect its analysis, stating:

First, Smith addressed MCR 2.403(O)(6)(b), which explicitly requires that 

the reasonable-attorney-fee portion of actual costs be based on a reasonable 

hourly or daily rate as determined by the trial court. Second, while two 

justices would have held that whether an attorney has a contingent-fee 

agreement with a client is not an appropriate factor when considering a 

reasonable attorney fee as a case-evaluation sanction, that part of the 

opinion is not binding precedent because a majority of justices did not 

agree.[30]

Although the University Rehab panel applied a combination of the Wood and 

MRPC 1.5(a) factors in a manner that is similar to the Smith concurrence’s approach, it 

did not require the trial court to begin its analysis by making the baseline calculation 

pursuant to Smith, and instead adopted a totality of the circumstances approach.31

As noted, the Court of Appeals’ majority in this case followed University Rehab to 

conclude that the Smith framework does not apply to reasonable attorney fee 

 28 Id. at 538 (opinion by CORRIGAN, J.).

29 University Rehab, 279 Mich App at 698-704.

30 Id. at 700 n 3 (citations omitted).

31 Id. at 700.
9

determinations under § 3148(1). We disagree with this conclusion. Instead, we conclude 

that the Smith framework applies in this context.

In Smith, we refined the analysis that applies when a fee-shifting statute or rule 

requires a trial court to determine a reasonable attorney fee.32 We have held that the 

Smith framework applies beyond the case-evaluation sanctions context in appropriate 

circumstances.33 Of course, whether it applies in a given case must depend on the plain 

language of the statute or rule at issue.

34 As we often note, any statutory construction 

must begin with the plain language.35 “We must give effect to the Legislature’s intent, 

 32 See Smith, 481 Mich at 535 (opinion by TAYLOR, C.J.) (“We merely aim to provide a 

workable, objective methodology for assessing reasonable attorney fees that Michigan 

courts can apply consistently to our various fee-shifting rules and statutes.”).

33 In Coblentz v City of Novi, 485 Mich 961 (2009), we considered an award of 

reasonable attorney fees under the Freedom of Information Act. At the time, 

MCL 15.240(6) provided that “[i]f a person . . . prevails in an action commenced under 

this section, the court shall award reasonable attorneys’ fees . . . .” In determining the 

reasonable attorney fees due to the plaintiffs, the trial court considered whether the city’s 

conduct was corrupt enough to justify fees and whether the fees would bankrupt the city 

or burden the public welfare. Coblentz, 485 Mich 961. We held that “[n]othing in 

MCL 15.240(6), or decisions of this Court, authorizes consideration of such factors in 

determining a reasonable attorney fee award.” Coblentz, 485 Mich 961. Accordingly, 

we reversed and remanded for a re-determination of the plaintiffs’ reasonable attorney 

fees using the Smith factors.

34 The answer to Justice CAVANAGH’S question of whether the rule applies to other feeshifting provisions, Smith, 481 Mich at 554-555 (CAVANAGH, J., dissenting), must be 

determined by examining the plain language of the rule or statute at issue in a given case.

35 Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011).
10

and the best indicator of the Legislature’s intent is the words used.”36 These same 

principles govern the interpretation of court rules.37 

Smith considered a fee award under MCR 2.403(O)(6)(b), which provides for “a 

reasonable attorney fee based on a reasonable hourly or daily rate as determined by the 

trial judge for services necessitated by the rejection of the case evaluation . . . .” Section 

3148(1) contains slightly different language, providing that “[a]n attorney is entitled to a 

reasonable fee for advising and representing a claimant in an action for [overdue PIP 

benefits].”

Although § 3148(1) is phrased differently than MCR 2.403(O)(6)(b), those 

differences are not material to determining whether the Smith framework applies. The 

plain language of the statute and the court rule both speak in terms of a reasonable fee.

38 

The operative language triggering the Smith analysis is the Legislature’s instruction that 

an attorney is entitled to a reasonable fee. The University Rehab panel erred by 

disregarding this language in § 3148(1) when it concluded that Smith was distinguishable 

because it only applies to case-evaluation sanctions.39 Because the plain language of 

 36 Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012).

37 Duncan, 494 Mich at 723.

38 We agree with Justice CORRIGAN’s statement in Smith that the plain language of 

MCR 2.403(O)(6)(b) “merely requires that the court award a ‘reasonable attorney fee’; it 

does not suggest that ‘reasonable attorney fee’ means something different for case

evaluation sanctions than for any other situation.” Smith, 481 Mich at 539 (opinion by 

CORRIGAN, J.).

39 University Rehab, 279 Mich App at 700 n 3. The University Rehab panel also 

disregarded Smith’s repeated use of language of general applicability, which clearly 
11

§ 3148(1) speaks in terms of awarding a “reasonable fee,” we conclude that the Smith

framework governing reasonable fee determinations is equally applicable in this context.

Despite reaching the wrong conclusion, University Rehab properly recognized the 

non-binding nature of the lead opinion’s conclusion in Smith that two of the factors—“the 

amount in question and the results achieved” and “whether the fee is fixed or 

contingent”—are not relevant in the case-evaluation context.

40 While we do not decide 

today whether those factors should be considered in that context, we hold that they must 

be considered by a trial court when awarding attorney fees under § 3148(1).41 We have

long recognized that the results obtained are relevant to determining the reasonable value 

of legal services.42 The results obtained are indicative of the exercise of skill and 

 

contemplated that the methodology announced therein could be applicable to reasonable 

attorney fee determinations outside the case-evaluation context. See e.g., Smith, 481 

Mich at 522 (opinion by TAYLOR, C.J.) (“We take this opportunity to clarify that the trial 

court should begin the process of calculating a reasonable attorney fee . . . .”) (emphasis 

added); id. at 530 (“We conclude that our current multifactor approach needs some finetuning.”); id. at 533 (“Having clarified how a trial court should go forward in calculating 

a reasonable attorney fee . . . .”) (emphasis added).

40 University Rehab, 279 Mich App at 700 n 3, citing People v Sexton, 458 Mich 43, 65; 

580 NW2d 404 (1998) (“[A] majority of the Court must agree on a ground for decision in 

order to make that binding precedent for future cases.”) (quotation marks and citation 

omitted).

41 This is in accord with the lead opinion in Smith, since it recognized that both factors 

“may be relevant in other situations.” Smith, 481 Mich at 534 n 20 (opinion by TAYLOR, 

C.J.). See also Beach v Kelly Auto Group, Inc, 482 Mich 1101, 1102 (2008) (YOUNG, J., 

concurring). And, in any event, the parties have offered no justification for excluding 

these factors when awarding attorney fees under § 3148(1).

42 See Becht v Miller, 279 Mich 629, 640; 273 NW 294 (1937) (“In ascertaining the 

reasonable value of legal services, the court should consider . . . the results obtained.”). 
12

judgment on the part of the attorney.43 Similarly, the nature of the fee arrangement is 

also a relevant factor because a contingency fee percentage may “express an attorney’s 

expectations of the case and the risks involved.”44 Accordingly, a trial court must 

consider both of these factors when making adjustments to the baseline fee award.

Thus, while we agree with portions of University Rehab, we disagree with that 

Court’s conclusion that Smith is inapplicable to reasonable attorney fee determinations 

under § 3148(1). In particular, the University Rehab panel erred by failing to begin its 

analysis by calculating the baseline figure pursuant to Smith. Therefore, we take this 

opportunity to overrule University Rehab to the extent that it is inconsistent with our 

opinion today. Having done so, we conclude that the Court of Appeals erred by holding 

that the Smith framework does not apply to reasonable attorney fee determinations under 

§ 3148(1).

In sum, we hold that when determining the reasonableness of attorney fees

awarded under § 3148(1), a trial court must begin its analysis by determining the 

reasonable hourly rate customarily charged in the locality for similar services.45 The trial 

court must then multiply that rate by the reasonable number of hours expended in the 

 43 Fry v Montague, 242 Mich 391, 393-394; 218 NW 691 (1928).

44 Smith, 481 Mich at 540 (opinion by CORRIGAN, J.).

45 Id. at 530-531 (opinion by TAYLOR, C.J.). We emphasize that the burden of proving 

reasonableness rests with the party requesting the fees. Id. at 528-529. With respect to 

the reasonable hourly rate, “the fee applicant must present something more than 

anecdotal statements to establish the customary fee for the locality.” Id. at 532. “The 

fees customarily charged . . . can be established by testimony or empirical data found in 

surveys and other reliable reports.” Id. at 531-532.
13

case to arrive at a baseline figure.

46 Thereafter, the trial court must consider all of the 

remaining Wood and MRPC 1.5(a) factors to determine whether an up or down 

adjustment is appropriate.

47

Unfortunately, Smith requires trial courts to consult two different lists of factors 

containing significant overlap, which unnecessarily complicates the analysis and 

increases the risk that courts may engage in incomplete or duplicative consideration of 

the enumerated factors. Therefore, we distill the remaining Wood and MRPC 1.5(a) 

factors into one list to assist trial courts in this endeavor:

(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.

These factors are not exclusive, and the trial court may consider any additional relevant

 46 Id. at 531.

47 Id.
14

factors.

48 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.

49

IV. APPLICATION

Having clarified the proper framework that applies to reasonable fee awards under 

§ 3148(1), we turn to the award in the instant case. The trial court erred by not starting 

its analysis by multiplying a reasonable hourly rate by the reasonable number of hours 

expended. Further, although it acknowledged some of the Wood and MRPC 1.5(a) 

factors, the trial court also erred by primarily relying on only one factor—the amount 

sought and results achieved—and failing to briefly discuss its view of the other factors. 

Therefore, the trial court necessarily abused its discretion, and as a result, the Court of 

Appeals erred by affirming the trial court’s attorney fee award. Accordingly, we reverse 

the Court of Appeals, vacate the fee award, and remand to the trial court for 

reconsideration in light of this opinion.50

 48 Id. at 530.

49 Id. at 529 n 14, 531, 531 n 15.

50 Defendant argues that plaintiff entirely failed to meet her burden of proof to support 

her claim for attorney fees. See Smith, 481 Mich at 528-529 (opinion by TAYLOR, C.J.). 

Because the trial court failed to properly apply Smith, it is unclear whether plaintiff met 

her burden. Accordingly, the trial court should consider this issue on remand when it 

applies the Smith framework.
15

V. CONCLUSION

We hold that when calculating a reasonable attorney fee award under § 3148(1), a 

trial court must follow the Smith framework, as outlined by Justice CORRIGAN’s 

concurring opinion and as modified by this opinion. The trial court abused its discretion 

by failing to do so, and the Court of Appeals’ majority erred to the extent that it affirmed

the trial court’s attorney fee award. Therefore, the judgment of the Court of Appeals is 

reversed, the fee award is vacated, and the case is remanded to the trial court for 

reconsideration in light of this opinion.

David F. Viviano

Robert P. Young, Jr.

Stephen J. Markman

Brian K. Zahra

Bridget M. McCormack

Richard H. Bernstein

Joan L. Larsen