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### STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH G. NICKOLA, Per sonal Representative

for the Estate of GEORGE and THELMA NICKOLA,

Plaintiff-Appellant, FOR PUBLICATION September 24, 2015

9:00 a.m.

v No. 322565

Genesee Circuit Court MIC GENERAL INSURANCE COMPANY, d/b/a GMAC INSURANCE, LC No. 05-081192-NI

Defendant-Appellee.

Before: G ADOLA , P.J., and J ANSEN and B ECKERING , JJ.

P ER C URIAM

.

In this action against defendant, MIC General Insurance Company, d/b/a GMAC Insurance, concerning underinsured motorist benefits, plaintiff , Joseph G. Nickola, as personal representative of the estate of George and Thelma Nickola, 1 appeals the June 19, 2014 order denying plaintiff’s request for attorney fees and interest. 2 We affirm in part and remand for further proceedings.

1 George and Thelma were originally listed as plaintiffs in this action. However, during the pendency of this case, they passed away, requiring the appointm ent of plaintiff, their son, as personal representative. For ease of reference, we will refer to George and Thelma by name, and will use the term “plaintiff” t o refer to Joseph G. Nickola, th e personal representative.

2 Although plaintiff’s claim of app eal asserts that this appeal of the June 19, 2014 order is an appeal as of right, we do not agree. The order did not dispose of all the claims of the parties, see MCR 7.202(6) (describing final ord ers); notably, as discussed i n more detail below, the order did not resolve plaintiff’s request f or entry of a judgment on the arbitration award. Moreover, because there is no judgment, the order appealed does not quali fy as a postjudgment order awarding or denying attorney fees and costs under MCR 7.202(6)( a)(iv). However, in the interest of judicial economy, we exercise our discretion and tr eat the claim of appeal as an application for leave to appeal and grant the application. See In re Beatrice Rottenberg Living

Trust , 300 Mich App 339, 354; 833 NW2d 384 (2013).-2- I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case involves a protracted procedural history. The matte r arose out of a motor vehicle accident that occurred on April 13, 2004. George and T helma, who were insured by defendant, were injured 3 when an automobile driven by Roy Smith, who was insured by Progressive Insurance Company, struck their automobile. The ma ximum available coverage on Smith’s auto policy with Progre ssive was $20,000 per individual involved in an accident. George and Thelma, with defendant ’s consent, settled the tort c laim, with Progressive paying its client’s policy limits on or about November 21, 2004. Thereaft er, they turned to defendant, their no-fault insurer, and sought underinsured motorist (UIM) benefi ts. Defendant’s policy with George and Thelma provided UIM coverage in the amount of $100,0 00 per person and $300,000 per accident; George and Thelma each sought $80,000, which repr esented the $100,000 policy limit minus the $20,000 already re ceived from Progressive.

Defendant denied the claim f or UIM coverage in February 2005, alleging that George and Thelma could not establish a threshold injury for noneconomic t ort recovery under MCL 500.3135. In response to this denial, George and Thelma sent d efendant a written demand for arbitration of their UIM claim, consistent with their auto poli cy. The UIM coverage provision in their policy with defendant provided that in the event the insurer and the insureds were unable to agree as to either: (1) whether an insured was legally entitled to UIM damages; or (2) the amount of UIM damages:

Either party may make a written demand for arbitration . In this event, each party

will select an arbitrator. The two arbitrators will select a t hird. If they cannot agree within 30 days, either mayrequest that selection be made by a judge of a court having jurisdic tion. [Emphasis added.]

Despite the fact that the policy stated that either party could demand arbitration, defendant responded to the request for arbitration on March 1, 2005, by denying the demand, stating that it never agre ed to arbitrate and that both parties had to agree to arbitration under the policy before a UIM claim could proceed to arbitration. The re asons for defendant’s denial in the face of the policy’s arbitrat ion clause are not entirely cl ear from the record.

Defendant’s denial of the request for arbitration prompted Geo rge and Thelma to file a complaint for declaratory relief on April 8, 2005, in which the y asked the trial court to compel arbitration. In answering the complaint, defendant “neither ad mit[ted] nor denie[d] the allegations” raised in the complaint concerning whether one par ty to its insurance contract with George and Thelma could unilaterally compel arbitration, but ad mitted that it had denied George and Thelma’s written demand for arbitration. However, in a Sep tember 20, 2005 response to a request for admissions, defendant admitted that the arbitration language in the policy stated that

3 As noted, George and Thelma died during the pendency of the in stant litigation. According to the record, neither death was caused by injuries suffered in th e motor vehicle accident that sparked this litigation.-3- either party could unilaterally demand arbitration. And in November 2005, defendant stated that it had “no objection to the matter being submitted to arbitrati on . . . .”

Because of defendant’s initial denial that arbitration was pro per, George and Thelma moved the trial court for sanctions against defendant. They cl aimed that any assertion by

defendant that arbitration was not required under the policy wa s a “frivolous defense.” Following a hearing on February 14, 2006, the trial court enter ed an order submitting the matter to arbitration, but reserved ruling on George and Thelma’s requ est for sanctions in relation to the few-month delay prompted by de fendant’s initial opposition to a rbitration. Before it would rule on the matter, the court expressly ordered that George and Thel ma “shall supply to the Court and to counsel for Defendant its list of costs and expenses, as wel l as attorney fees.” At the motion hearing, George and Thelma’s counsel promised to provide the tr ial court with this information. The trial court’s written order, dated March 6, 2006, retained jurisdiction to “enforce compliance and/or make any other determination, orders and/or judgments ne cessary to fully adjudicate the rights of the parties herein.”

The parties named their respectiv e arbitrators soon after the trial court’s wr itten order, but disagreement over the appointme nt of a third arbitrator broughtthe proceedings to a grinding halt. The chosen arbitrators could not agree to the appointmen t of a third arbitrator. Neither party took action on the matter for over six years, until Augus t 13, 2012, when plaintiff moved the trial court to appoint a third arbitrator. 4 It is unclear from the rec ord what caused this lengthy delay. During this six-year delay, George and Thelma died, lea ding to the appointment of plaintiff as personal representa tive of their respective estate s.

The parties finally proceeded to arbitration in October 2013, and the arbitration panel awarded $80,000 to plaintiff for George’s injuries and $33,000 for Thelma’s injuries. The awards were to be “inclusive of interest, if any, as an elementof damages from the date of injury to the date of suit, but not inclusive of other interest, fees, or costs that may otherwise be allowable by the Court.”

On November 25, 2013, plai ntiff moved the tr ial court for: (1) attorney fees and sanctions because of defendant’s frivolous defense to arbitration; (2) pe nalty interest under MCL 500.2006, the Michigan Uniform Trade Practices Act (UTPA) for d efendant’s failure to promptly pay UIM benefits; and (3) to enter judgment against de fendant on the arbitration award. The trial court denied the motion in all respects, but stated that it “affirmed” the arbitration award. With regard to penalty interest, the court found that the UTPA should not apply to a claim for UIM benefits. Further, even if the UTPA d id apply, MCL 500.2006(4)’s “reasonably in dispute” language i nsulated defendant from havin g to pay penalty interest. Finally, the trial court ruled that the issue of penalty intere st should have been heard before the arbitration panel.

4 On appeal, defendant attempts to pin the entirety of the delay on plaintiff. However, the arbitration agreement contained in the policy provides that in the event the arbitrators selected by the parties were unable to agree on a third arbitrator within 3 0 days, “ either may request that selection be made by a judge of a court having jurisdiction.” (Emphasis added).-4- II. SANCTIONS UNDER MCR 2.114

Plaintiff argues that the trial court should have granted sanc tions against defendant under MCR 2.114 for initially asserting in its filings with the court that arbitration could not be demanded unilaterally under the in surance policy. The trial co urt’s 2006 order reserved a ruling on attorney fees but required Ge orge and Thelma to produce evid ence of their attorney fees incurred during the delay cause d by defendant’s initial refusal to arbitrate. Specifically, the order stated that “Plaintiff shall supply to the Court and to counsel for Defendant its list of costs and expenses, as well as attorney fees.” Plaintiff never complied with that order. Indeed, even when plaintiff made a renewed request for sanctions in 2014, he neve r complied with the trial court’s 2006 order to provide proof of his attorney fees incurred durin g the relevant time period. Plaintiff’s failure to comply withthat order, despite having y ears to do so, is tantamount to

waiver of this issue. 5 “The usual manner of waiving a right is by acts which indicat e an intention to relinquish it, or by so neglecting and failing to act as to induce a belief that it was the intention and purpose to waive.” The Cadle Co v Kentwood , 285 Mich App 240, 254- 255; 776 NW2d 240 (2009) (citation and quotation marks omitted; emphasis added). Where plaintiff repeatedly failed to comply with the trial c ourt’s order to provide docume ntation of his attorney fees for the pertinent time period, it is difficult to fault the trial court for failing to award those fees as a sanction under MCR 2.114. Indeed, plaintiff had over eight yea rs to supply the requested fees,

but never did so. See Reed Estate v Reed , 293 Mich App 168, 177-178; 810 NW2d 284 (2011) (waiver may be shown by a course of conduct, including neglecti ng and failing to act in such a manner as to induce the belief that the party failing or neglec ting to act has the intent to waive). Plaintiff’s failure to act and neglect of the trial court’s man date is tantamount to waiver. See The

Cadle Co

, 285 Mich App at 254-255.

Plaintiff argues that it was “impossible” for him to determine the amount of attorney fees to which he was allegedly entitled without waiting for arbitrat ion to conclude. This ignores that the trial court, at the February 14, 2006 motion hearing, asked for the fees to which plaintiff believed he was entitled at that time. Plaintiff’s counsel exp ressly promised to provide that figure. Plaintiff was to submit costs and fees incurred during the time between when defendant answered the complaint and admitted the mistake. There was nev er an invitation by the trial court to include in the amount of fees requested those fees inc urred even after the matter went to arbitration. Any attempt by plai ntiff to obtain additional fee s ignored the court’s order. Moreover, the argument ignores the fact that, even when arbitra tion was over, plaintiff still failed to provide the trial court with his requested fees.

We also note that plaintiff seeks attorney fees for defendant’ s conduct that occurred before George and Thelma filed their complaint in 2005. That is, plai ntiff appears to seek sanctions under MCR 2.114 for defendant’s conduct in initially denying the UIM claim. Any argument by plaintiff in this regard is without merit. MCR 2.1 14(A), applies to “all pleadings, motions, affidavits, and other papers provided for by” the Cour t Rules. Defendant’s initial

5 On appeal plaintiff makes no effort to comply with the 2006 or der and has yet to produce evidence of his claimed attorney fees.-5- decision to deny arbitration wa s not a pleading, motion, affida vit, or other paper filed under the Court Rules. Rather, it was simply a response to plaintiff’s r equest for arbitration. Nothing about that response brings it within the ambit of materials tha t could subject defendant to

sanctions under MCR 2.114.

III. PENALTY INTEREST UNDER THE UTPA

Plaintiff argues that the trial court erred by concluding thatdefendant was not required to pay penalty interest under the UTPA for its failure to timely p ay UIM benefits. This Court reviews de novo the trial court’s ruling on a motion for penalt y interest pursuant to MCL 500.2006(4). Angott v Chubb Group Ins , 270 Mich App 465, 474-475 ; 717 NW2d 341 (2006). Resolution of this issue also requires examination and interpre tation of MCL 500.2006(4), which

is an issue of law this Court reviews de novo. Id. at 475.

UIM benefits are not statutorilymandated; they are an agreeme nt for benefits voluntarily

entered into between an insured and an insurer. Dawson v Farm Bureau Mut Ins Co , 293 Mich App 563, 568; 810 NW2d 106 (2011). The UTPA provides a mechani sm to help insureds obtain payment for these and other types of benefits in a timely manne r. Griswold Props, LLC v Lexington Ins Co , 276 Mich App 551, 554; 741 NW2d 549 (2007). “MCL 500.2006 pr ovides for imposition of penalty interest for the late payment of a cl aim[.]” Id. The statute provides, in pertinent part:

(1) A person must pay on a timely basis to its insured, an indi vidual or entity directly entitled to benefits unde r its insured’s contract of i nsurance, or a third party tort claimant the benefits provided under the terms of it s policy, or, in the alternative, the person must pay to its insured, an individual or entity directly

entitled to benefits under its ins ured’s contract of insurance, or a third party tort claimant 12% interest, as provided in subsection (4), on claims not paid on a timely basis. Failure to pay claims on a timely basis or to pa y interest on claims as provided in subsection (4) is an unfair trade practice unles s the claim is reasonably in dispute.

* * *

(4) If benefits are not paid on a timely basis the benefits pai d shall bear simple interest from a date 60 days aft er satisfactory proof of loss w as received by the insurer at the rate of 12% per annum, if the claimant is the in sured or an individual or entity directly entitled to benefits under the in sured’s contract of insurance. If the claimant is a third party tort claimant, the n the benefits paid shall bear interest from a date 60 days after satisfactory proo f of loss was received by the insurer at the rate of 12% per annum if the liability of the insurer for the claim is not reasonably in dispute, the insurer has refused pay ment in bad faith

and the bad faith was determin ed by a court of law. [MCL 500.2 006(1), (4).]

MCL 500.2006(4), the penalty-inter est provision, draws a disti nction between a claimant

who is the insured or who is an individual directly entitled to benefits under an insurance contract (a first-party insured) , and a claimant who is a third -party tort claimant. The first-6- sentence of § 2006(4) simply states that a first-party insured is entitled to penalty interest if benefits are not paid within 60 da ys after the insurer obtains satisfactory proof of loss. Griswold

, 276 Mich App at 565-566. As explained by this Court in Griswold , “if the claimant is the insured or an individual or entity directly entitled to benefit s under the insured’s contract of insurance, and benefits are not paid on a timely basis, the cla imant is entitled to 12 percent interest, irrespective of whether the claim is reasonably in di spute.” Id. at 566 (citation and quotation marks omitted). By comparison, the second sentence o f § 2006(4), which applies to third-party tort claimants, imposes penalty interest on the ins urer only if the claim “is not reasonably in dispute.” Id. at 565-566. Central to plaintiff’s argument on appeal is the n otion that the “not reasonably in d ispute” language of § 2006(4) does not apply to claims by a firstparty insured. Defendant, meanwhile, likens plaintiff to a thi rd-party tort claimant in this claim for UIM benefits, meaning that the “not reasonably in dispute” language of MCL 500.2006(4) applies.

A brief examination of the facts at issue in Griswold is illustrative in resolving this issue. In deciding Griswold , this Court convened a special panel to resolve a conflict ove r the application of MCL 500.2006(4) and the types of claims to which“reasonably in dispute” applied. The case involved a consolidation of three cases. Se e Griswold , 276 Mich App at 559-

560. Two cases involved insured s who sought benefits from thei r respective insurers for water damage. Id. at 559-560. In the third case, the insured’s building was des troyed by a fire, and the insured sought benefits from its insurer for the damage caused by the fire. Id. at 560. In other words, each of the three consolidated cases involved insureds s eeking benefits from their own

insurers for losses that were directly covered under the respec tive policies.

Plaintiff contends that he, as t he personal representative for George and Thelma, is seeking payment of benefits that were owed directly to insureds under an insurance policy. As noted, UIM benefits arise solely from the policy. See McDonald v Farm Bureau Ins Co , 480 Mich 191, 194; 747 NW2d 811 (2008) ( explaining that “[w]hen an insured is injured by a tortfeasor motorist whose own pol icy is insufficient to cover a ll of the insured’s damages, the insured can seek coverage from his or her UIM policy for damages that exceed the tortfeasor’s policy limits.”) (emphasis added). At first glance, plaintiff’ s argument—that he is entitled to penalty interest because he sought benefits that were owed dire ctly to an insured by an insurer and that the “reasonably in dispute” language of § 2006(4) does not apply—has some appeal in light of Griswold

.

However, the instant case is not as simple as Griswold . As noted, Griswold involved a

consolidation of cases in which each of the insurers was direct ly liable to their first-party insureds for covered losses. Here, while plaintiff is seeking UIM benefits that are provided in the policy, he is doing more than merely making a simple, first -party claim as was involved in

Griswold . In order for plaintiff to succeed on his UIM claim, he has t o essentially allege a thirdparty tort claim against his own insurer—or, in this case, agai nst the insurer of George and Thelma, of whom plaintiff is the personal representative. Defe ndant, the insurer, stands in the shoes of the alleged tortfeasor a nd plaintiff seeks benefits fr om defendant that arose from the alleged tortfeasor’s liability. See Auto Club Ins Ass’n v Hill , 431 Mich 449, 464-466; 430 NW2d 636 (1988) (explaining UIM coverage). See also Rory v Continental Ins Co , 473 Mich 457, 465; 703 NW2d 23 (2005) (explaining that “[u]ninsured motorist insur ance” which is substantially similar to UIM insurance, “permits an injured motorist to obtai n coverage from his or her own-7- insurance company to the extent that a third-party claim would be permitted against the [ ] atfault driver.”). This third-party tort claim is different in n ature from a typical claim for firstparty benefits, as it will “ofte n require proof of the nature a nd extent of the injured person’s injuries, the injured person’s prognosis over time, and proof t hat the injuries have had an adverse effect on the injured person’s ab ility to lead his or her norma l life.” Adam v Bell , __ Mich App __; __ NW2d __ (Docket No. 319778, issued August 11, 2015) (cit ation and quotation omitted), slip op at 4. In addition, such a third-party tort claim is de signed to compensate a claimant “for past and future pain and suffering and other economic and nonec onomic losses rather than compensation for immediate expenses” that are generally associa ted with a first-party claim. Id. (citation and quotation omitted) . In other words, plaintiff’s UIM claim is tied to a third-party tort claim for damages that, in many respects, is “fundamentally dif ferent” than a typical first-party

claim. See id. (citation and quotation omitted).

In Auto-Owners Ins Co v Ferwerda Enterprises, Inc (On Remand) , 287 Mich App 248; 797 NW2d 168 (2010), judgment vacated in part on other grounds 488 Mich 917 (2010), 6 this Court recognized that not all claims for penalty interest under MCL 500.2006(4) fit neatly into

the Griswold analysis. In that case, the i nsurer sought a declaratory judg ment stating that it had no duty to defend and indemnify its insureds in a third-party t ort action based on an exclusion in the insurance policy. Id. at 252. The insureds filed a counterclaim, alleging breach of contract, estoppel, and waiver, and they requested penalty interest under MCL 500.2006(4). Id. The trial

court found that there was covera ge for the underlying third-pa rty tort claim and awarded penalty interest under MCL 500.2006(4). Id. at 253-254. On appeal, the in sureds defended the trial court’s award of penalty interest on the ground that the insure r breached its contract by failing to pay benefits under the insurance policy. Id. at 258. The insureds argued that pursuant to

Griswold , the issue of penalty interest turned only on the failure to p ay benefits, and not whether those benefits were reasonably in dispute. Id. at 259. This Court disagreed with the insureds’ argument that the case involved a simple breach of the insuranc e policy. Rather, in that case, “the breach of contract claim [was] specifically tied to the un derlying third-party tort claim.” Id. at 259. This scenario, reasoned the Court, was “a wholly diffe rent situation than that found” in

Griswold and other cases that awarded penalty interest for the failure of an insurer to pay firstparty claims. Id. at 259-260. As such, this Court held that the “reasonably in dispute” language found in the second section of MCL 500.2006(4) applied and prec luded an award of penalty

interest because the benefits i n that case were reasonably in d ispute. Id. at 260.

Applying Ferwerda in the case at bar, the trial court did not err in employing t he “reasonably in dispute” language found in the second sentence o f MCL 500.2006(4) and denying

6 In Ferwerda , 287 Mich App 248, this Court decided two issues: (1) whether an award of attorney fees was appropriate; and (2) whether the imposition o f penalty interest was warranted. Our Supreme Court denied leave to appeal with regard to the pen alty interest issue, but remanded with regard to the attorney fee issue. Auto-Owners Ins Co v Ferwerda Enterprises, Inc , __ Mich __; 784 NW2d 44 (2010). Subsequently, the Court vacated this C ourt’s ruling as to attorney

fees. Auto-Owners Ins Co v Ferwerda Enterprises, Inc , 488 Mich 917; 789 NW2d 491 (2010). Thus, this Court’s holding as to penalty interest remains good law.-8- penalty interest to plaintiff. This case does not involve a cl aim where the insured simply sought the payment of benefits due dir ectly under an insurance policy. As in Ferwerda , 287 Mich App at 259, the situation in this case “is a wholly different situa tion than that found” in cases such as

Griswold . Rather, the claim for benefits under UIM coverage was “speci fically tied to the underlying third-party tort claim.” See id. Indeed, in the UIM context, defendant was standing in the shoes of the alleged tortf easor. The fact that the clai m for UIM benefits was specifically tied to the underlying third-part y tort claim warrants applicab ility of the “reasonably in dispute” language found in the second sentence of MCL 500.2006(4). See id. The trial court did not err in applying this standard to plain tiff’s claim for penalty inte rest.

Moreover, contrary to plainti ff’s alternative contention on ap peal, the claim in this case was reasonably in dispute. Even assuming plaintiff could estab lish a threshold injury, plaintiff’s UIM claim needed to show that the injuries suffered by George a nd Thelma exceeded the

amount of the settlement with Smith. 7 See McDonald , 480 Mich at 194 (explaining UIM coverage). Given George and Thelma’s respective ages, preexist ing conditions, and the nature of the injuries alleged in this case, the amount of damages, if an y, that they were entitled to beyond that received from Smith was a matter of reasonable dispute. 8 Thus, the trial court did not err by denying penalty interest under MCL 500.2006(4).

IV. PREJUDGMENT INTEREST

Lastly, plaintiff seeks prejudgment interest under MCL 600.601 3 from the date of the filing of the complaint until payment of the arbitration award. “MCL 600.6013 [ ] entitles a prevailing party in a civil action to prejudgment interest from the date the complaint was filed to the entry of judgment.” Beach v State Farm Mut Auto Ins Co , 216 Mich App 612, 624; 550 NW2d 580 (1996). “The purpose of this statute is to compensate the prevailing party for loss of use of the funds awarded as a money judgment and to offset the costs of litigation.” Farmers Ins

Exch v Titan Ins Co , 251 Mich App 454, 460; 651 NW2d 428 (2002). Plaintiff seeks interest under MCL 600.6013(8), which provides:

Except as otherwise provided in subsections (5) and (7) and sub ject to subsection (13), for complaints filed on or after January 1, 1987, interes t on a money judgment recovered in a civil action is calculated at 6-month i ntervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasurynotes during the 6 months immediately preceding July 1 and January 1, as certifiedby the state

7 The policy’s UIM coverage provision states that “We [the insur er] will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of j udgments or settlements.”

8 This is not to say that UIM benefits will in all cases be subj ect to reasonable dispute. For instance, in a scenario where an accident renders an otherwise healthy insured a quadriplegic and the tortfeasor’s insurance policy provided only $20,000 in reco very, there could likely be no dispute that the insured was entitled to UIM coverage.-9- treasurer, and compounded annually, according to this section. Interest under this subsection is calculated on the entire amount of the money judg ment, including attorney fees and other costs. In an action for medical malpra ctice, interest under this subsection on costs or attorney fees awarded under a statu te or court rule is not calculated for any period before the entry of the judgment. The amount of interest attributable to that part of the money judgment from w hich attorney fees are paid is retained by the plai ntiff, and not paid to the plai ntiff's attorney.

Plaintiff is seeking prejudgment interest from the date of its complaint in April 2005 until the date of payment. Plaintiff never raised the issue of prej udgment interest before the trial court. In addition, it does not a ppear from the record that th e arbitration award was ever reduced to a judgment, or that the arbitr ation award has been paid. Un der the Michigan Arbitration Act, 9
circuit courts have jurisdiction to enforce and render judgment on an arbitration award. MCL 600.5025. Here, despite the fact that plaintiff’s motion expre ssly sought entry of a judgment on the arbitration award, the trial court did not honor that reque st. Instead, the court simply “affirmed” the arbitration award, and to that extent, the trial court erred. Becau se it does not appear that the arbitration award was ever reduced to a judgmen t, and this case has not otherwise been dismissed, plaintiff remains entitled to obtain a judgmenton the award. And, when seeking that judgment, because the issue of prejudgment interest was ne ver decided, plaintiff can raise the issue of prejudgment interest at that time. As such, we de cline to address the prejudgment interest issue, without prejudice to plaintiff raising it when he moves for entry of a judgment enforcing the arbitration awar d. Indeed, at this point, neithe r the arbitration panel 10 nor the trial

9 Effective July 1, 2013, the Legislature repealed the Michigan Arbitration Act and replaced it with the Uniform Arbitration Act, MCL 691.1681 et seq. See Fette v Peters Constr Co , __ Mich App __; __ NW2d __ (Docket No. 320803, issued May 21, 2015), sl ip op at 4. The Uniform Arbitration Act “does not affect an action or proceeding commen ced or right accrued before this

act takes effect.” MCL 691.1713. See also Fette , __ Mich App at __, slip op at 4. Because George and Thelma filed a complaint for arbitration in 2005, th e Uniform Arbitration Act does not apply, and the Michigan A rbitration Act governs. See id.

10 In this regard, we note that o rdinarily, preaward, prejudgment interest would be deemed to have been submitted to the arbitration panel. See Holloway Const Co v Oakland Co Bd of Rd

Comm’rs , 450 Mich 608, 618; 543 NW2d 923 (1996) (“The decision whether to award preaward, prejudgment interest as an element of damages is rese rved as a matter of the arbitrator’s discretion.”). In this case, there was nothing in the arbitration agreement reserving the issue of preaward, prejudgment interest. However, the arbi tration award expressly stated that the arbitration panel awarded interest as an element of damages from the time of the injury to the time the complaint was filed, but it was not deciding matters p ertaining to “other interest.” Prejudgment interest after the f iling of the complaint fits int o the broad category of “other interest.” Thus, the arbitrati on panel expressly declined to a ddress the prejudgment interest plaintiff is now seeking. The r ecord contains no indication as to why the arbitration panel did not consider any “other interest, ” nor is there any indication that the parties objected to the arbitration panel’s deci sion in this regard.-10- court has decided the issue of pl aintiff’s entitle ment to statu tory prejudgment i nterest under MCL

600.6013.

Lastly, on the issue of prejudgm ent interest, we note that def endant contends that plaintiff should not be entitled to any prejudgment interest because of h is—and George and Thelma’s— delays in this case. “[A] court may disallow prejudgment inter est for periods of delay where the delay was not the fault of, or caused by, the debtor.” Eley v Turner , 193 Mich App 244, 247; 483 NW2d 421 (1992). Here, however, it is not apparent that th e entirety of the delays in this case can be assigned to plaintiff. With regard to the six-year delay caused by disagreement over the third arbitrator, defendant is incorrect in stating that th e arbitration agreement required the insured, and only the insured, to petition the circuit court to select a third arbitrator in the event of disagreement. Rather, the agreement as contained in the pol icy states “ either may request that selection” of a third mediator “be made by a judge of a court h aving jurisdiction.” (Emphasis added). If plaintiff raises the issue of prejudgment interest at the time he seeks a judgment on the arbitration award, the delays in this case can be a considerati on for the trial court, but should not at the outset deny plaintiff any claim to prejudgment interest under MCL 600.6013.

Affirmed in part and remanded to the trial court for further pr oceedings not inconsistent with this opinion. We do not retain jurisdiction.

/s/ Michael F. Gadola

/s/ Kathleen Jansen /s/ Jane M. Beckering