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### STATE OF MICHIGAN

COURT OF APPEALS

LOIS WINEGAR Personal Representative for the ESTATE OF GEORGE WINEGAR,

Plaintiff-Appellee, UNPUBLISHED April 28, 2016

v No. 325601 Livingston Circuit Court FARM BUREAU INSURANCE COMPANY, LC No. 13-027746-NF

Defendant-Appellant.

Before: T ALBOT , C.J., and H OEKSTRA and S HAPIRO , JJ.

P ER C URIAM

. Plaintiff estate, through its personal representative, Lois Wi negar, submitted a claim for no-fault insurance survivor ben efits following the death of Loi s’s husband, George Winegar. Defendant, George’s no-fault insurer, denied the claim and plai ntiff filed suit. The matter was tried. The trial court denied defendant’s motions for directed verdict and the jury found for plaintiff, awarding the sought b enefits and no-fault penalty in terest. The trial court thereafter granted plaintiff’s motion for no-fault attorney fees pursuant to MCL 500.3148(1). We affirm the judgment in all respects except the amount of penalty inter est as to which we remand.

I. PROCEDURAL AND FACTUAL HISTORY

The facts preceding the claim event are undisputed. George Wi negar, the insured decedent, spent the afternoon of April 16, 2013 helping his son , Brian, with chores on the family’s farm. Brian testified th at before George left the farm, they loaded a large trash can filled with old burn barrels into the bed of the pickup truck o wned by George and insured by defendant. George and Lois’s neighbor, Ken Fleeger, testified that he saw George arrive home in his pickup truck, park in his driveway, enter the bed of the truck, and roll the trash can to the truck’s tailgate in order to unload it. Fleeger testified that once the trash can’s wheels left the tailgate, George, who was holding onto the trash can, was catap ulted over the side of the truck, striking the driveway. Fleeger and another man ran to George a nd called 911. First responders testified that when they arrived George was unconscious and the y gave him CPR because they believed that he was in full cardiac arrest.

George was transported to the hospital, where he was examined and treated by Dr. Venkatesh Murthy, a cardiologist. Dr. Murthy testified that Ge orge had suffered a cardiac arrest, but based on test results, he had concluded that the primary cause of George’s condition was not-2- cardiovascular in origin. He r ecommended that he be consulted for further tests if George survived his other injuries, which included multiple fractures to the cervical vertebrae in the neck. George was placed in a medically-induced coma, and after he experienced brain seizures, the family removed him from life support machines. George died on April 20, 2013.

Assisted by her daughter, Kathleen Branch Nelson, Lois contact ed defendant in order to initiate a claim for survivor benefits. A series of emails between Kathleen and Jodi Treat, defendant’s claim representative followed. On May 6, 2013, Kathleen submitted copies of the funeral bills paid by the famil y. On May 7, 2013, Kathleen requested a claim form and general information about how to provide information concerning lost in come. Treat wrote back explaining how such benefits are calculated. She stated that i f coverage applied, defendant would owe plaintiff lost wages i f George was still working, the difference between retirement and social security benefits before and after the death, and up to $20 per day for replacement services. She went on to explain that plaintiff “should receiv e a statement from both the retirement and SS, of what her new benefit will be. I would ne ed a copy of what [George] was getting prior his death and wh at [plaintiff] is receiving now. That is the income benefit of the Survivor Benefit.” As to replacement services, Treat explained that plaintiff would “need to indicate any household services [George] was responsible for ar ound the house (cooking, cleaning, trash, etc., how many days he was responsible for hou sehold chores and we can reimburse . . . up to $20/day.”

On May 10, 2013, Kathleen sent an email to Treat stating that information regarding her father’s retirement and social security would take 6-8 weeks to obtain and that the information regarding lost income from work would also be forthcoming after it was obtained. Lois submitted the completed written claim form on May 25, 2013. Th e claim form did not provide additional information regarding amounts of the claimed loss, b ut included an executed release for medical records. Later, defe ndant received the death certi ficate, police report, and medical reports. Defendant also received information through its own p rivate investigator.

On July 3, 2013, defendant sent a letter to Lois denying the c laim. The letter stated that “it does not appear that [George’s] death was caused by the use of a motor vehicle as a motor vehicle. As noted on the death certificate, [George] suffered sudden cardiac death due to atherosclerotic cardi ovascular disease, natural causes.”

Plaintiff thereafter filed suit seeking the claimed no-fault s urvivor benefits asserting that George’s death arose out of unloading a parked vehicle. See MC L 500.3106(1)(b). Defendant served interrogatories on plaint iff. Plaintiff’s answers to th ose interrogatories, signed on February 27, 2014 and received by defendant, were admitted as a n exhibit at trial. In response to the interrogatories about the loss of George’s wages and retire ment benefits, plaintiff stated in her answers that there were two sources of wage losses: first, the loss of George’s income from Coral Line for whom he worked from 1997 until his death, and se cond, a reduction in his pension benefits from OPM where George had previously worked. The interrogatory answer read:

George was employed as a contractor by Coral Line (Egernsund D enmark) from Jan 1, 1997 until his death as their North American Repres entative. He-3- received a monthly retainer of $1000 and .3% of the gross freig ht for all voyages to/from and within North Ameri ca. See tax returns attached.

He received a federal pension/annuity from OPM for his years o f federal service. At the time of his death, his net monthly income (aft er federal taxes and health insurance) was $4,668.90. The reduced benefit that Lois now receives since George’s death is $3118.60. This information is on the a ttached tax returns.

Along with these answers, plain tiff provided executed releases allowing defendant to receive George’s employment records and his federal and Michigan tax re cords. Plaintiff’s answers also stated that George had been receiving social security benefits and provided a signed release to allow defendant to obtain the records from the social security administration. Plaintiff’s response to the interrogatories, however, did not provide any s pecific information as to replacement services.

Lois was deposed on March 14, 2014. During her deposition she confirmed, under oath, that George’s death had resulted in a reduction of pension bene fits to the household from $4,668.90 to $3,118.60 and a cessation of income from Coral Lin e.
At trial, there was conflicting testimony concerning the mechanism of George’s death. Dr. Murthy was called as a witness by plaintiff. He treated Ge orge from his arrival at the hospital until his death. Dr. Murthy testified that in his opi nion, based on a reasonable degree of medical certainty, “the primary i nciting factor that led to me seeing Mr. Winegar was not cardiovascular in nature, and that his cardiovascular issues, s pecifically his multiple arrests, were likely a consequence rather than a trigger” of his fall from th e truck. He reviewed the evidence of George’s skull and cervical spine injuries caused by the fal l from the truck and opined that the cause of death was “trauma l eading to cardiac arrest.”

Defendant called two physicians a s witnesses: Dr. Jentzen, the pathologist who signed the death certificate, and Dr. Kahn, a cardiologist retained as an expert by defendant. Dr. Jentzen testified that no autopsy was performed and that neither himsel f nor the original pathologist who had charge of the case actually examined the body. Dr. Jentzen testified that, after reviewing the medical records, it was his opinion that George died from a sud den cardiac arrest resulting from underlying cardiovascular disease. On cross-examination, Dr. J entzen conceded that if there was evidence that George had not simply collapsed, but had instead been catapulted out of the truck bed onto his head, that such evidence might lead him to change his opinion, and he agreed that such an event could cau se a cardiac arrest.

Dr. Kahn testified that, in his view, it was unlikely that Geo rge was thrown from the truck because of the trash can and he said he would discount th e testimony of the eyewitness because he was a layperson. He noted that at the time of the e vent, George “was exerting himself physically with something that’s been described as pote ntially heavy.” He testified that it was his “opinion to within a reasonable degree of medical ce rtainty that when he was exerting himself that day that he experienced ischemia, lack of oxygen, inadequate function of the heart and it triggered one of the rhythm problems that can cause you to suddenly collapse and lose function, pulseless electrical ac tivity.” He testified “in my opinion he had a cardiac arrest while exerting in the truck.” When asked by defense counsel whether it was his opinion that the-4- cardiac arrest would have happened regardless of what Mr. Wineg ar was doing at the time, Dr. Kahn answered, “No, that’s not been my opinion. . . . I think it’s medically probable that his cardiac arrest was br ought on by exertion.”

As to economic losses, plaintiff relied largely on the testimo ny of Gregory Clumb, who had been George’s accountant for several years. Clumb testifie d as to the reduction in pension benefits and post-retirement emp loyment income to George’s wife as a result of his death. His calculations regarding pension a nd social security losses were based on the change in benefits following George’s death as shown in the social security, tax, and pension records, all of which had been provided to defendant in February 2014. As to losses from continued post-retirement employment, Clumb accepted the figure of his net employment inc ome shown on George’s last full year tax return, which ha d also been provided to defendantin February 2014.

Testimony as to replacement services was offered by family mem bers who testified as to the household tasks that George performed. George’s son testif ied that he had performed various chores for plaintiff since his father’s death, visiting his mot her twice a week, and that he had two other siblings who visited about once a month to help plaintiff . George’s daughter testified that since her father’s death she ha d been helping her mother manage her finances.

At the close of plaintiff’s proofs, defendant moved for a dire cted verdict as to coverage and certain benefits. As to the former, defendant argued that plaintiff had failed to produce evidence that George’s death arose out of the loading or unload ing of a parked vehicle used as a motor vehicle. As to the latter, defendant argued that no proo fs had been offered as to replacement services. The trial court denied both motions, fin ding that such evidence had been presented. During trial, defendant also asked the court to giv e five special jury instructions as to no-fault law and burden of proof . The trial court declined to give defendant’s special instructions, and instead, the c ourt gave the standard instruct ion, M Civ JI 35.02. The trial court added an instruction advising th e jury that plaintiff could not met her burden if she merely proved that George died while unloading the truck and that plai ntiff had to prove that the death arose out of the unloading.

The jury found for plaintiff and awarded $59,631.63 for loss o f tangible things of economic value and $5,750 in replacement services. The jury al so found that benefits were overdue and awarded $7 ,845.80 in penalty interest.

Plaintiff later brought a motion seeking no-fault attorney fees under MCL 500.3148(1) and defendant filed a motion for judgment notwithstanding the v erdict (JNOV). The trial court denied defendant’s motion for JNO V, concluding that there was s ufficient evidence to uphold the jury verdict with respect to its award of expenses for replacem ent services and penalty interest. The trial court granted plaintiff’s motion for no-fault attorne y fees, finding that defendant’s denial of benefits had been unreas onable. From these rulings, defendant appealed.

II. DEFENDANT’S MOTI ONS AS TO COVERAGE-5- Defendant argues that the trial court erred in denying its mot ion for directed verdict and JNOV because, the jury could not have lawfully concluded that G eorge’s injuries fell within the scope of the MCL 500.3105 1 or one of the exceptions to the parked motor vehicle exclusion under MCL 500.3106(1). “In reviewing the trial court’s decisio n, we view the evidence presented up to the time of the motion in the light most favora ble to the nonmoving party, granting that party every reasonable inference, and resolving a ny conflict in the evidence in that party’s favor to decide whether a question of fact existed.” Derbabian v S & C Snowplowing, Inc , 249 Mich App 695, 701-702; 644 NW2d 779 (2002). Thus, in con sidering defendant’s challenge to the verdict, we c onsider all evidence in the light most favorable to plaintiff. Defendant offered no evidence tha t George was not unloading his parked truck at the relevant time. Defendant argues, however, that (1) there was n o evidence that George’s death was caused by his fall from the truck; (2) the truck was not be ing used as a motor vehicle; and (3) the cardiac arrest was unrel ated to the unloading process.

The first of these claims is readily dispensed with. An eyewi tness testified that George was catapulted out of the truck bed as he attempted to unload a heavy trash can from the truck. Moreover, the doctor who treated George at the hospital testifi ed that the cause of the cardiac arrest was the trauma from the fall from the truck. Defendant disputed this evidence, but whether or not to accept it is a matter left for the jury. See Shuler v Mich Physicians Mut Liability Co , 260 Mich App 492, 519; 679 NW2d 106 (2004) (noting that confl icts in the evidence should be resolved by the jury).

Defendant’s argument that the truck was not being used as a mo tor vehicle is also without merit. It was undisputed at tria l that George loaded his truck with trash cans in order to transport them, that he drove the truck to a second location, and that he parked and began to unload the trash cans. “[A] vehicle need not be in motion at the time of an injury in order for the injury to ‘arise out of the use of a motor vehicle as a motor vehicle,’ ” but “the phrase ‘as a motor vehicle’ does require a general determinat ion of whether the vehicle in question was being used, maintained, or operated for transportational purposes[.]” Drake v Citizens Ins Co of America
, 270 Mich App 22, 26; 715 NW2d 387 (2006) (citation omitted). M oreover, defendant’s position is contrary to the plain terms of MCL 500.3106(1)(b), which def ines the scope of coverage in the context of the unloading a trans porting vehicle after it has be en parked and provides that as a matter of law, accidental bodily injury arises out of use of pa rked vehicle when “the injury was a direct result of physical contac t with . . . property being li fted onto or lowered from the vehicle in the loading or unloading process.” The facts of this case are wholly consistent with our applicat ion of this statute in prior cases. For example, in Drake , the plaintiff’s injury occurred wh ile assisting another person in unclogging an animal feed delivery truck’s auger system; the pl aintiff reached through an inspection door to clear the augers, and the other person activ ated the system. Drake , 270 Mich App at 24. The Drake Court reasoned that “[t]he vehicle involved is a delivery truck, and it was

1 MCL 500.3105(1) states: “Under personal protection insurance a n insurer is liable to pay benefits for accidental bodily injury arising out of the owners hip, operation, maintenance or use of a motor vehicle as a motor ve hicle, subject to the provision s of this chapter.”-6- being used as such when the injury occurred.” Id . at 26. See also, Adanalic v Harco Nat’l Ins Co , 309 Mich App 173, 177-178, 182-183; 870 NW2d 731 (2015) (hold ing that the plaintiff’s claim fell under MCL 500.3106(1)(b) when he was injured while l oading pallets ont o his truck). Additionally, George’s use of his truck in this case stands instark contrast to the rare circumstances “when a motor vehicle is used for other purposes, e.g., as a housing facility of sorts, as an advertising display (such as at a car dealership), as a foundation for construction equipment, as a mobile public library, or perhaps even when a c ar is on display in a museum. On those occasions, the use of the motor vehicle would not be ‘as a motor vehicle,’ but as a housing facility, advertising display, construction equipment base, pub lic library, or museum display, as it were.” McKenzie v Auto Club Ins Ass’n , 458 Mich 214, 219; 580 NW2d 424 (1998). This case is also readily disti nguishable from this Court’s de cision in Rice v Auto Club Ins Ass’n , 252 Mich App 25; 651 NW2d 188 (2002). In that case, the plai ntiff, a fuel truck driver for Ford Motor Company, parked his fuel truck, left the vehicle, and set a ladder against a nearby steel hauler 2 he was going to refuel. He then turned on the fuel truck’s fu el pump, extended the hose from the fuel truck, and ascended the ladder on the hauler so he could begin the refueling process. Id . at 27. While he was still on the ladder, the steel hauler (n ot the fuel truck) moved, dislodging the ladde r and the plaintiff fell, sus taining serious injuries. Id . at 28. He claimed no-fault benefits from the insurer of his private ve hicle, claiming that he was “unloading” fuel from the parked fuel truck. The trial court g ranted judgment in the plaintiff’s favor after concluding that the p arked vehicle exception in MCL 500.3106(1)(b) applied. Id . at 29-30. This Court reversed, holding that “the problem in this case is that at the time [the plaintiff] sustained his injuri es, he had virtually no physical or practical connection to the fueling truck.” Id . at 37. Instead, he was “standing on a ladder” leaning agains t the steel hauler and the steel hauler “not the fuel truck, moved, causing him to fall.” Id . Moreover, there was nothing about the unloading process from a motor vehicle that caused hi s injury. It was the process of loading the fuel into the hauler, a non-motor-vehicle, climbing a ladder unconnected to the truck and the movement of an object unconnected to the truck that cau sed the injury. In contrast to the plaintiff in Rice , George was actively removing a load from his pickup truck and was in direct contact with the pickup truck whe n the injury-causing event occ urred. Defendant’s third argument, i.e., that the cardiac arrest was unrelated to the unloading process, fails for two reasons. First, it only arises if the j ury rejected the testimony of the eyewitness and Dr. Murthy regardi ng the events and cause of dea th. And as noted, defendant has offered no basis for its argument that the jury did so, or was required to do so. Second, even assuming the jury fully accepted Dr. Kahn’s theory, it could re adily have found no-fault coverage given Dr. Kahn’s testimony about what caused George’s cardiac arrest. As noted earlier, Dr. Kahn repeatedly testified that George’s cardiac ar rest occurred because he was overexerting himself in order to unload the trash cans from the truck. Where a heart attack occurs due to the exertion of unloading a vehicle and there are proofs of its causal link to that unloading exertion, a jury may properly conclude that it was an accidental bodily injury. McKim

2 It was undisputed that the steel hauler was not being used as a motor vehicle within the meaning of the no-fault act; hen ce, the steel hauler could not be the basis for the payment of nofault benefits. Rice , 252 Mich App at 37-38.-7- v Home Ins Co , 133 Mich App 694, 697-699; 349 NW2d 533 (1984), lv den 422 Mi ch 853 (1985). Moreover, unlike McKim , in this case, even defendant’s expert testified that the cardiac event occurred during the unloadi ng process and was triggered b y the exertion required by that
process.

III. JURY INSTRUCTIONS

Next, defendant claims reversib le error in relation to the court’s decision not to give one of five requested special jury in structions. After review of the record, we discern no error. The trial court gave the standard jury instruction, M Civ JI 35.02, which accurately described the law governing no-fault personal protec tion insurance (PIP) benefits , the elements that had to be proven, and the fact that the burden of proof was on plaintiff. The court instructed the jury as follows:

In order for the plaintiff to recover no fault benefits from th e defendant, the plaintiff has the burden of pr oof on each of the following. On e, that at the time of the accident there existed a valid contract of no fault insuran ce between George Winegar and defendant. Two, that George Winegar was loading or unloading the vehicle. Three, that George Winegar’s death arose out of the u se of a motor vehicle as a motor vehicle. Four, that following the death of George Winegar dependents of George Winegar duri ng the first three years after the date of the accident . . . sustained a loss of contribution of tangible thi ngs of economic value, no including services that the de pendents would have received f or their support during their dependency if George Winegar had not died. Five, that following the death of George Winegar dependents of George during the first t hree years after the date of the accident reasonab ly incurred expenses during th eir dependency, and after the date George Winega r died, and obtaining ordinary and necessary expenses in place of those that the decedent would have perform ed for the benefit of the dependents that the de fendant failed to pay any or all o f said benefits.

To the extent that plaintiff has met or has not met her burden of proof, you may grant diminished or [deny] claimed benefits . . . .

Defendant did not object to thi s instruction. On appeal, howe ver, defendant asserts that the instruction failed to inform jurors that even if George was unloading the truck, plaintiff still had to demonstrate that the injury arose out of the use of a mo tor vehicle as a motor vehicle. Defendant is mistaken because the instruction given by the court said exactly that. Specifically, the second requirement set forth in the instruction was “that G eorge Winegar was loading or unloading the vehicle” and the third requirement was “that Geor ge Winegar’s death arose out of the use of a motor vehicle as a m otor vehicle.” Defendant’s cl aim is therefore without basis.

Defendant also contends that th e trial court erred by adding a dditional language to the standard instruction. We disagree. First, it is unclear wheth er defendant even objected to this language on its own terms or simply restated its request that i ts proposed instructions be given. Defense counsel never indicated that defendant would prefer tha t the standard instruction be read without the additional text writt en by the court; only that def endant wanted the standard instruction plus the additions it was proposing. Second, a rev iew of the record leaves little doubt-8- that the trial court only drafted the additional language in an attempt to address the concerns of the defense and that, had defense counsel indicated a preferenc e for the standard instruction alone, the court would have agreed.

In any event, the additional text prepared by the court and re ad along with the standard no-fault burden of proof instruction was not erroneous. Indeed , it emphasized the very point argued by defendant. The court advised that “loading or unload ing a motor vehicle is considered use,” but went on to advise th e jury that “[y]our inquiry is no t limited to whether [George] was loading or unloading his motor vehicle. You must consider whet her the accidental bodily injury arose out of the loading or unloading of the motor vehicle.” I n other words, the jury could not find for plaintiff simply because George coincidentally happene d to have a heart attack at the time of unloading. The jury could only find for plaintiff if i t found that the heart attack arose out of the unloading.

On appeal, jury instructions are reviewed in their entirety, r ather than extracted piecemeal to establish error in isolated portions. T here is no error requiring reversal, if on balan ce, the theories of the parties and the applicable law were fairly and adequately presented to the jury. The trial co urt’s decision regarding supplemental instructions will not be reversed unless failure to vacate the verdict would be inconsiste nt with substantial justice. [ Mull v Equitable Life Assurance Society of United States , 196 Mich App 411, 423; 493 NW2d 447 (1992) (citations omitted).]

We find no instructional error. Moreover, because the trial c ourt’s view of the disputed issues in this case was correct and its instruction did not aff ect the jury’s determination of those issues, if there was any instructional error it did not result in a verdict “inconsistent with substantial justice.” Id

.

III. EXPENSES FOR REPLACEMENT SERVICES

Defendant next argues that the trial court erred in denying it s motion for JNOV on the issue of expenses for replacement services. “This Court review s de novo the trial court’s decision to grant JNOV[.]” Nelson v Dubose , 291 Mich App 496, 499; 806 NW2d 333 (2011). Further,

. . . this Court should examine the testimony and all legitimat e inferences therefrom in the light most favorable to the plaintiff. A tria l court should grant a motion for JNOV only when there was insufficient evidence prese nted to create an issue for the jury. Thus, a tr ial court should grant a part y’s motion for JNOV with respect to certain damages if the jury was permitted to sp eculate concerning the amount of those damages. . . . [A] case should not be subm itted to the jury where a verdict must rest upon conjecture or guess. [ Attard v Citizens Ins Co of America , 237 Mich App 311, 321; 602 NW2d 633 (1999) (citations and quotations omitted).]

The survivors’ loss statute gove rns replacement services benefi ts. It states that such benefits consists of “expenses, not exceeding $20.00 per day, r easonably incurred by these-9- dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the decea sed would have performed for their benefit if the deceased had not s uffered the injury causing dea th.” MCL 500.3108(1).

Brian Winegar testified that since his father’s death, he came to his mother’s home twice per week to perform various chores for her that his father woul d otherwise have performed. In addition, Kathleen Nelson testified that since her father’s dea th she had handled the bulk of plaintiff’s financial matters, and she provided the specific nu mber of days that she had done so. The quality and type of services provided to plaintiff were the type contemplated as “ordinary and necessary services.” See Fortier v Aetna Casualty & Surety Co , 131 Mich App 784, 793; 346 NW2d 874 (1984). Further, formal billing is not required. Douglas v Allstate Ins Co , 492 Mich 241, 267 n 56; 821 NW2d 472 (2012). The lack of formal do cumentation regarding when the services took place does not e ntitle defendant to relief be cause the witnesses’ testimony was specific regarding the number of days that they had provided se rvices, and their credibility was a matter for the jury. See Frontier , 131 Mich App at 791-792.

Defendant’s argument on appeal is mainly that, viewing the evid ence in a light most favorable to plaintiff, there w as nothing to establish that she “incurred” expenses for replacement services by becoming liable for them and that the family member s performing the services were not simply donating their time. Although Douglas considered the issue of expenses of “charges incurred” under MCL 500.3107(1)(a), Douglas , 492 Mich at 266, and although MCL 500.3108(1) provides for expenses “reasonably incurred,” we fin d instructive Douglas’s holding that expenses may be “incurred” on the basis of an expectation that the insurer will provide payment. See Douglas , 492 Mich at 267 n 56. In that regard, Kathleen testified tha t she was approached about filing a claim under George’s no-fault policy shortly after George’s death, and communications between her and de fendant’s adjuster discussed t hat, assuming coverage, expenses for replacement services were reimbursable under the p olicy. Based on these communications, which were submitted to the jury, and observing the standard of review applicable to the trial court’s denial of defendant’s motion fo r JNOV, we conclude that there was sufficient evidence to support the jury’s award of expenses for replacement services in favor of plaintiff.

IV. PENALTY INTEREST AND ATTORNEY’S FEES

Defendant also challenges the t rial court’s denial of its moti on for JNOV on the issue of penalty interest under MCL 500.3142 and the trial court’s award of attorney’s fees to plaintiff under MCL 500.3148(1).

We review de novo issues of statutory interpretation. Moore v Secura Ins , 482 Mich 507, 516; 759 NW2d 833 (2008). A trial court’s decision whether to award attorney fees is reviewed for an abuse of discretion. Id . “This Court reviews for clear error a trial court’s finding whether a communication qualifies as reasonable proof of the fact or am ount of a claim.” Williams v AAA Mich , 250 Mich App 249, 265; 646 NW2d 476 (2002).

MCL 500.3142(2) states:-10- (2) Personal protection insuranc e benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable pr oof is overdue if not paid wit hin 30 days after the proof is received by the insurer. Any part of the remainde r of the claim that is later supported by re asonable proof is ove rdue if not paid with in 30 days after the proof is received by the insurer. . . .

“The aim of the no-fault act in general, and § 3142 specificall y, is to promptly and adequately compensate persons who were injured in a motor vehicle mishap.” Nash v Detroit Auto Inter-Ins Exchange , 120 Mich App 568, 572; 327 NW2d 521 (1982). MCL 500.3142 “on ly requires that the insured present the insurer with reasonable proof of loss. If the insurer does not pay the claim within 30 days after receiving this proof, it becomes lia ble for interest.” Fortier , 131 Mich App at 793. “Penalty interest must be assessed against a no-fault insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the insurer’s good faith in not promptly paying the benefits.” Williams , 250 Mich App at 265.

MCL 500.3142(2) contains two requi rements: “reasonable proof o f the fact that a loss was sustained . . .” and “the amount of the loss sustained.” Regents of Univ of Michigan v State Farm Mut Ins Co , 250 Mich App 719, 734- 736; 650 NW2d 129 (2002) . It was plain tiff’s burden as the claimant to supply reasonable proof of loss and reasonab le proof of amount of loss. See Moore , 482 Mich at 523.

Defendant argues that, until trial, plaintiff did not submit r easonable proof of the amount of the loss sustained for lost income and replacement services. In Moore
, the jury was instructed to “award interest for any pro rata portion for which plaintiff did supply reasonable proof.” Moore
, 482 Mich at 518. In light of the jury’s calculation of the int erest award, the Moore Court was able to discern a “logical ex planation for the findings of the jury” and uphold the jury’s verdict. Id . at 518-519 (citation and quotat ion marks omitted). Here, it is evident that the interest award was assessed on th e entire amount of survivors’ loss benefits because the award was 12% of the total amount of benefits that the jury found def endant liable for from the date of George’s death to the time of trial.

Plaintiff provided reasonable proof as to loss of income benef its in its February 27, 2014 answer to interrogatories. Plaintiff’s answers stated that the loss was the cessation of income from George’s employment and the reduction in pension benefits from his prior employment. As to the former, plai ntiff supplied the tax records which set forth George’s employment income. As to the latter, plaintiff set forth the different amounts in her answer and executed the requested pension record. MCL 500.3142(2) only mandates that a plaintiff provide “reasonable proof” of the loss and the amount of loss. There is no requirement that a plaintiff must present exact proof of the amount of the loss sustained. Williams , 250 Mich App at 267.

Plaintiff did not, however, pr ovide reasonable proofs as to re placement services until trial. The interrogatory answers as to those services stated “ unknown at this time” and no supplement was ever provided.-11- The jury properly concluded that benefits for the losses in em ployment and pension income were overdue, but erroneously calculated them from the d ate of George’s death and not the date of the interrogatory answers, which was when reasonabl e proof of the amount of loss was provided. Accordingly, we vac ate the award of penalty inte rest as to replacement services. In addition, we remand with direction to the court to recalcula te the penalty interest assessed as to the lost income benefits so as to award it only from the dat e of plaintiff’s answers to interrogatories.

Defendant also argues that the trial court erred in awarding p laintiff attorney’s fees under MCL 500.3148. MCL 500.3148(1) defines two prerequisites for th e award of attorney fees. First, the benefits must be overdue, MCL 500.3148(1), meaning “ not paid within 30 days after an insurer receives reasonable pr oof of the fact and of the amount of loss sustained,” MCL 500.3142(2). Second, in post-judgment proceedings, the trial c ourt must find that the insurer

“ unreasonably refused to pay the claim or unreasonably delayed in making proper payment .” Moore , 482 Mich at 520 (empha sis in original).

As just discussed, the payment for lost wages and pension bene fits were overdue, so that prerequisite was met. As to the second prerequisite, the trial court found that defendant unreasonably denied benefits.

After review of the record, we conclude that the trial court d id not abuse its discretion in awarding attorney fees. Defendant denied the claim on the grounds that George’s death was unrelated to his unloa ding of the truck. First, it rejected th e contemporaneous and uncontradicted statements of the sole eyewitness who stated that George was th rown from the truck by the weight of the trash can and did not simply spontaneously collap se. Second, accepting defendant’s version, i.e. that George was not thrown but suffer ed a cardiac arrest while on the truck bed, the denial was nevertheless unreasonable. Defendant argued to the jury that the fact that George was unloading his parked vehicle was simply a coinc idence and was not a cause of his death. However, defendant’s own expert testified that the cardiac arrest occurred because of the exertion of unloading. Regar dless of which version of even ts was accurate, i.e., plaintiff’s theory that George died because the weight of the trash can cau sed him to fall or defendant’s theory that George died because he had a cardiac arrest caused by exertion from mo ving the trash can, it is clear that the only two versions for which there was any evidence each mandated coverage. Accordingly, on this record, the trial court did not abuse its discretion in finding that the denial was unreasonable.

V. CONCLUSION

We affirm the jury’s verdict that defendant was liable for surv ivors’ loss benefits and hold that defendant is not entitled to a new trial on the groun ds of instructional error. We also affirm the jury’s award of expenses for replacement services fr om the date of death to trial, and the trial court’s decision to award plaintiff attorney fees. W ith regard to the award of penalty interest, we vacate the trial court’s award of penalty interest as to replacement services, and we reverse in part the award of penalty interest as to lost income benefits insofar as it was calculated from the time of George’s death, r ather than from the time plai ntiff presented re asonable proof of the loss and the amount of loss sustained. We remand for the l imited purpose of recalculating the amount of penalty interest to be assessed. The trial courtshall award penalty interest from-12- the date that plaintiff submitted her interrogatory answers to defendant for the loss of income benefits. We do not retain jurisdiction.

/s/ Michael J. Talbot /s/ Joel P. Hoekstra /s/ Douglas B. Shapiro