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### STATE OF MICHIGAN

COURT OF APPEALS

ROLAND PRENDUSHI and JANIS PRENDUSHI, Co-Guardians of RAJMONDA PRENDUSHI,

Plaintiffs-Appellees, UNPUBLISHED September 15, 2015

v No. 321348
Oakland Circuit Court FARMERS INSURANCE EXCHANGE, LC No. 2013-134648-NF

Defendant-Appellant.

ROLAND PRENDUSHI and JANIS PRENDUSHI, Co-Guardians of RAJMONDA PRENDUSHI,

Plaintiffs-Appellees,

v No. 321511
Oakland Circuit Court FARMERS INSURANCE EXCHANGE, LC No. 2013-134648-NF

Defendant-Appellant.

Before: M URRAY , P.J., and M ETER and O WENS , JJ.

P ER C URIAM

.

In this consolidated, first party no-fault insurance case, we granted defendant Farmers Insurance Exchange (“Farmers”) leave to appeal three orders. F irst, in Docket No. 321348, Farmers appeals the trial cour t’s order denying its motion in l imine to exclude testimony concerning the reasonableness of certain attendant care expense s incurred by the injured claimant, Rajmonda Prendushi (Mrs. Prendushi). Second, in that same case, Farmers challenges the trial court’s order denying its motion for summary disposit ion of plaintiffs’ claims seeking certain accommodation and attendant care expenses. Finally, in the companion case, Docket No. 321511, Farmers appeals the trial court’s order requiring produ ction of Farmers’ entire litigation
file.-2- For the reasons set forth below, in Docket No. 321348, we affi rm the trial court’s order denying Farmers’ motion in limine, but vacate the trial court’s summary disposition ruling that plaintiffs’ rent is an “allowable expense.” In all other respe cts, we affirm the trial court’s order denying summary disposition. In Docket No. 321511, we reverse the trial court’s order requiring Farmers to produce its entire litigation file since that ruling is premature. We remand (1) for the parties to resubmit to the trial court the issue of plaintiffs’ claim for rental costs and (2) for the trial court to determine the scope of the work-product doctrine ’s protection of Farmers’ litigation
file.

I. BACKGROUND

The nearly decade-and-a-half of litigation between these parti es spans back to 1999,
when Mrs. Prendushi was involved in a serious auto accident. S he sustained traumatic brain and spinal cord injuries resulting inincomplete quadriplegia, amon g other problems. The injuries are permanent and require 24-hour car e. Upon leaving the nursing f acility in 2001, Mrs. Prendushi moved into an apartment and began receiving attendant care from her husband and daughter— respectively, plaintiffs Roland (Mr. Prendushi) and Janis Prend ushi. Mrs. Prendushi’s sister, Linda Ziu, also assists with this care. The parties intended t he apartment to be a temporary living arrangement until plaintiffs could secure more “suitable ” housing; however, since Mrs. Prendushi moved to the apartment several disputes have arisen r egarding not only her housing situation, but also her attendant care costs. In fact, the cur rent case is the fourth lawsuit between these parties regarding personal protection insurance (PIP) ben efits, the most recent having been resolved in April 2012 when the parties accepted a case evaluat ion award of $630,000 to be used for barrier-free housing, handi cap-modified transportation, andattendant care costs. 1

Around the time case evaluation concluded, Mrs. Prendushi was prescribed an additional six hours of daily attendant care for pain management. This br ought her attendant care regimen to 30 hours a day. Although plaintiffs sought total reimbursem ent from Farmers for this expense, over the ensuing year, the parties disputed whether pl aintiffs had provided Farmers with the proper documentation and records. Plaintiffs claimed Farme rs had refused to pay the amount due despite receiving the prescription and a doctor’s letter; F armers claimed plaintiffs had neglected to provide the persona l and tax information of the pe rson providing the additional six hours of care. Finally, on June 20, 2013, Farmers agreed to pa y all additional hours of attendant care retroactive to April 2012, but at the lower rate of $12 an hour rather than the $18 an hour Farmers was paying for the 24-hour care provided by Mrs. Prendu shi’s family. Farmers claimed the disparity in payment derived from the different skill level s needed to render the different types of care. Farmers remitted all payment to Mr. Prendushi, who in turn, was responsible for compensating the other caregi vers and paying any taxes.

Concurrent with that controvers y, plaintiffs continued searchi ng for a “suitable” housing arrangement for Mrs. Prendushi. This was part of the ongoing s earch that had begun shortly after the accident since, according to plaintiffs, Farmers had previously rejected Mr. Prendushi’s

1 For the first three lawsuits, se e Oakland Circuit Court Case N os. 01-032543-CK, 07-083748- NF, and 11-119514-NF.-3- offer to modify the house his family had lived in before the ac cident and had refused to pay for the house he had subsequently purchased in Bloomfield Hills. D espite this, Farmers continued paying Mrs. Prendushi’s rent af ter case evaluation through May 2013—a full six months beyond the deadline Farmers had originally imposed. Farmers ceased pa ying rent at that time ostensibly because plaintiffs’ housing updates were inadequate. However, on June 20, 2013, plaintiffs informed Farmers that they had purchased a house in Sylvan Lake and that Mrs. Prendushi had received an eviction notice from her apartment for nonpayment o f rent. 2 By July 5, 2013, Farmers had resumed Mrs. Prendushi’s rental payments.

II. PROCEEDINGS

In the meantime, on June 21, 2013, plaintiffs filed their comp laint. Primarily seeking reimbursement for attendant care and housing expenses, plaintif fs alleged that Farmers had (1) failed to pay (or delayed in pa ying) for the additional six hou rs of daily care, (2) “underpaid” Mr. Prendushi for the round the clock care he provides, and (3) fai led to reimburse plaintiffs for housing and rental expenses. Farmers initially filed a motion for summary disposition under MCR 2.116(C)(10), arguing that P IP benefits were not recoverabl e as a matter of law and that no
benefits were otherwise overdue. However, this motion was with drawn in light of ongoing discovery and the parties’ settlement negotiations.

Over five months later the partie s remained at an impasse, so Farmers refiled its dispositive motion. In addition to its prior arguments, Farmer s noted that: rent was not a reasonable expense where plaintiffs’ apartment was not modified ; plaintiffs lacked proof of additional attendant care expens es and the need for Farmers to keep paying their rent; and Farmers had fairly compensate d plaintiffs for providing attenda nt care.

Plaintiffs responded that Farmers had admitted their claimed e xpenses, that plaintiffs’ caregivers provided the same services as a skilled nurse, and t hat the need for Mrs. Prendushi’s care was undisputed. Plaintiffs also submitted the affidavit o f their case manager, Pamela Feinberg-Rivken. 3 Feinberg-Rivken addressed the reasonableness of plaintiffs’ a ttendant care costs, claiming that plaintiffs’ caregivers provided services a kin to those of a skilled nurse, whose hourly compensation would ordinarily range between $40 an d $60. Feinberg-Rivken also opined that a rate of $12 an hour f or the additional six hours of daily care was insufficient.

Farmers countered with two filings. First, Farmers filed a re ply arguing that FeinbergRivken’s affidavit failed to establish that a skilled or regist ered nurse was necessary, and that plaintiffs had otherwise failed to substantiate their expenses. Second, Farmers moved in limine to exclude evidence concerning w ages paid to skilled nurses and to exclude Feinberg-Rivken’s

2 Notably, although the purchase agreement for that house was da ted November 30, 2012, plaintiffs waited until June 20, 2013, to provide this informat ion to Farmers. Apparently, foreclosure proceedings delayed closing until April 2013.

3 Feinberg-Rivkin is the CEO of Feinberg Consulting, a firm assi sting individuals struggling with catastrophic injuries.-4- testimony. Farmers primarily argued that Feinberg-Rivken’s tes timony as to the reasonableness of expenses would be irrelevant a bsent evidence that those expe nses were actually incurred. Plaintiffs, of course, conteste d all of Farmers arguments.

The trial court dealt with both motions in turn, issuing two o rders on April 1, 2014. First,
the court denied Farmers’ motion in limine, ruling that the mot ion amounted to a “disguised, untimely motion for summary disposition.” Additionally, the co urt observed that plaintiffs had submitted evidence of their expenses and that Farmers’ request to exclude evidence of a skilled nurse’s wages pertained to weight rather than admissibility.

Second, the court denied Farmers’ summary disposition motion i n 27-page opinion and order. Beginning with rental paym ents, the court determined a genuine issue of material fact existed as to whether the apartment was an allowable expense. The court based th is ruling on the attorneys’ conflicting reports as to whether Mrs. Prendushi’s a partment was in fact modified for her care (Farmers’ counsel asserted there were no modifications to the apartment based on a letter from plaintiffs’ counsel; plaintiffs’ counsel claimed th e apartment was modified by installing grab bars and removing doors). Equally unclear was the scope of Farmers potential exposure since the evidence did not establish whether the poten tial modifications were “combined” or “integrated” with the apartment. 4 Still, the court noted that plaintiffs’ “mitigation [of expenses by moving into the a partment] appears to be a cons ideration” weighing in plaintiffs’
favor.

Similarly, the court rejected Farmers’ alternative assertion that plaintiffs failed to provide reasonable proof of ongoing rental payments because (1) Farmers sought no reimbursement for rent already paid, (2) Farmers’ correspondence effectively conc eded that plaintiffs’ update letters constituted reasonable proof, (3 ) Farmers did not define “reaso nable proof,” and (4) Farmers was continuing to pay rent. The court added that Mr. Prendushi had detailed his efforts to purchase a home in his deposition and that Farmers’ claims adjuster, Micha el Schwab, could not explain why his affidavit accused Mr. Prendushi of being uncooperative. The court elaborated, however, that its ruling did not excuse plaintiffs from providing “reaso nable proof of loss (ongoing need for rent).”

As for attendant care expenses, the court held that the Feinbe rg-Rivkin affidavit was sufficient to create a genuine issue of material fact as to whe ther Farmers underpaid Mrs.
Prendushi’s attendant care costs . In making this determination , the court refuse d to substantively address the affidavit’s admissibility since Farmers first raise d that issue in its reply brief. Moreover, the court explained, the depositions of both Mr. Pren dushi and Schwab proved that plaintiffs had actually incurred attendant care costs, contrary to Farmers’ argument. The fact that plaintiffs’ requests for repaym ent were not contemporary with t he provision of services was also
of no moment to the trial court.

4 See Admire v Auto-Owners Ins Co , 494 Mich 10, 28; 831 NW2d 849 (2013) (distinguishing between the recovery allowed for “combined” and “integrated” ac commodations).-5- Accordingly, the court denied Farmers’ motion for summary disp osition and its accompanying request for attorney fees under MCL 500.3148(2). Farmers then sought leave to appeal both this order as well as the order denying its motion in limine.

While that application was pending, the trial court issued ano ther order—this time requiring Farmers to turn over its entire litigation file. Pre cipitating that ruling was plaintiffs’ second motion to strike witnesses/evidence in which plaintiffs argued, among other things, that the work-product doctrine was in sufficient to shield Farmers’ l itigation file from discovery. 5 Agreeing with plaintiffs, the trial court ruled that Farmers’ f ailure to produce a sufficiently detailed privilege log precluded a pplication of the privilege. As the trial court explained:

The Defendant’s asse rtion of privilege f or the litigation file in total states a bald conclusion: “Entire file not produced pursuant to MCR 2.30 2(B)(3)(a) for referencing mental impressions, conclusion, opinions, or theori es of a party in anticipation or for trial and communication subject to attorney -client privilege.” This is woefully inadequate—especi ally because the Defendant no where identifies, e.g., how many documents are in this file, or who a uthored the documents, thereby depriving one from determining if the assert ed justification is appropriate. Interestingly, the privilege log assertion with r egard to the MCCA, which involves only a single document, is more than twice as lo ng as the entire log for the litigation file. The litigation file privilege has been waived. No privilege log is asserted for the SIU file—if it exists, that p rivilege has been waived. The litigation file and SIU files (if the SIU file exi sts) shall be produced by April 29, 2014.

Farmers immediately sought leav e to appeal that order and requ ested a stay. On April 30, 2014, this Court granted both requests as well as Farmers’ prio r leave application. The cases were consolidated that same day. 6

III. DOCKET NO. 321348

Farmers attacks the trial court’ s denials of its motion for su mmary disposition and motion in limine on mostly the same grounds as those asserted below. Our review of the record shows that both parties failed to properly support their positions at summary disposition on the issue of whether plaintiffs’ rent is an “allowable expense.” Accordingl y, we vacate that portion of the trial court’s summary disposition ruling. Because defendant’s other challenges lack merit, we affirm the rest of that ruling as well as the court’s order den ying defendant’s motion in limine.

5 Plaintiffs also requested Farmers’ Michigan Catastrophic Claim s Association (MCCA) and Special Investigation (SIU) files. Farmers asserted the MCCA f ile was part of its general insurance claims file, known as the PIP file, and asserted that the former was privileged. As for the SIU file, Farmers claimed it did not exist.

6 Prendushi v Farmer Ins Exch , unpublished order of the Court of Appeals, entered April 30, 2014 (Docket Nos. 321348 & 321511).-6- A. SUMMARY DISPOSITION

The trial court granted summary disposition under MCR 2.116(C) (10). We review a trial court’s ruling on a motion for summary disposition de novo. McCoig Materials, LLC v Galui Constr, Inc , 295 Mich App 684, 693; 818 NW2d 410 (2012). Judgment for the moving party hinges on whether there exists a genuine issue of material fact

. Curry v Meijer, Inc , 286 Mich App 586, 590; 780 NW2d 603 (2009). “A genuine issue of materia l fact exists when the record, giving the benefit of reasonabl e doubt to the opposing party, l eaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp , 469 Mich 177, 183; 665 NW2d 468 (2003). Initially, the moving party bears the burden to suppor t its claim through affidavits, depositions, admissions, or other documentary evidence. McCoig Materials, LLC , 295 Mich App at 693. When the moving party properly supports its motion , the burden shifts to the nonmoving party who may not rest upon the mere allegations or d enials of its pleading; instead, to survive the motion, the nonmoving party must, by affidavits or other evidentiary materials, set out specific facts showing that t here is a genuine issue for tr ial. MCR 2.116(G)(4); Skinner v Square D Co, 445 Mich 153, 160-161; 516 NW2d 475 (1994). If after this the re remains no genuine issue of material fact, the moving party is entitled to judgment a matter of law. Curry

, 286 Mich App at 591.

1. ALLOWABLE EXPENSES UND ER THE NO-FAULT ACT

The no-fault automobile insurance act, MCL 500.3101 et seq ., entitles those injured in automobile accidents to a variety of PIP benefits from their in surance carriers. Johnson v Recca

, 492 Mich 169, 173; 821 NW2d 520 (2012). Among the categories o f PIP benefits compensable under this scheme are those for “allowable expenses,” MCL 500.3 107, which plaintiffs seek in this case. “Allowable expenses” consist of “all reasonable cha rges incurred or reasonably necessary products, services, and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). Accordingly, for a PIP c laimant to obtain benefits for an “allowable expense,” the following must be true: “(1) the expen se must be for an injured person’s care, recovery, or rehab ilitation, (2) the expense mus t be reasonably necessary, (3) the expense must be incurred, and (4) the charge must be reasonable .” Douglas v Allstate Ins Co

, 492 Mich 241, 259; 821 NW2d 472 (2012).

a. IS PLAINTIFF’S RENT AN ALLOWABLE EXPENSE?

In determining what constitutes an “allowable expense,” our Su preme Court has emphasized MCL 500.3107(1)(a)’s plain language, noting that unl ess a product, service, or accommodation is actually for an injured person’s care, recove ry or rehabilitation, it is no t recoverable. Admire v Auto-Owners Ins Co , 494 Mich 10, 25-26; 831 NW2d 849 (2013). Thus, costs for ordinary, everyday products, expenses, or accommodati ons that an injured claimant
would otherwise bear absent the injury do not qualify. Id . at 26. Instead, the product, expense,
or accommodation must be “new in its essential character” to be compensable. Id . at 27.

The joining of a special accommodation or modification to an o rdinary item does not deprive the accommodation or modification of its essential char acter, however. Rather the scope of recovery under those circumstances depends upon whether the special accommodation or modification is “combined” or “integrated” with the ordinary it em. Id . at 28. A “combined”-7- accommodation or modification is one that, although joined to a n ordinary product, may be separated into components related specifically to the injured p erson’s care, recovery, or
rehabilitation. Id . at 28-29. Of course only the separate components are compens able for
“combined” modifications. Id . In contrast, an “integrated” modification is one blended wit h an ordinary product such that the resulting product or accommodati on cannot be separated easily
into unit costs. Id . at 29. An “integrated” product is compensable in full. Id . at 29-30.

In the trial court Farmers asserted (as it does now) that plai ntiffs’ rent is not an “allowable expense” because the apartment provides no special a ccommodations for Mrs. Prendushi’s care, recovery, or rehabilitation. Thus, Farmers a rgued, the apartment is merely an ordinary cost of life. In support, Farmers only cited a letter from plaintiffs’ counsel dated November 29, 2012, explaining that Mrs. Prendushi’s apartment d oes not accommodate her injures. 7 As the letter states in pertinent part:

[P]lease be advised that my clients, Roland Prendushi and Rajm onda Prendushi, have been living in extremely unacceptable and intol erable living conditions. More specifically, the apartment does not have prop er bathroom accessibility for Mrs. Prendushi, who showers at the local YMCA and does NOT accommodate her physical, cogniti ve and emotional disabilities. [Emphasis in original.]

Citation to a letter containing the statement of another-when offered for the truth of the matter asserted, as it was here -is not proper documentation in support of a motion for summary disposition. MCR 2.116(G)(6); CSC Assoc Ltd Partnership v Gen Retirement Sys , 192 Mich App 360, 364; 480 NW2d 275 (1992). Defendant therefore failed to shoulder its burden in properly supporting its motion, Oliver v Smith , 269 Mich App 560, 566-567; 715 NW2d 314 (2006), and it should have been de nied on this issue on that gr ound alone.

Nevertheless, the trial court made a ruling based upon plainti ff’s counsel’s letter and the references made by that same attorney contained in the response to the motion for summary disposition. In that response counsel asserted that there were some modifications made to the apartment, in particular handrails and removal of some doors. Based on that assertion, the court
concluded that modifications wer e made. But none of this is evidence , and the court can only grant or deny summary disposition under MCR 2.116(C)(10) based on properly presented evidence. MCR 2.116(G)(3)(b).

In fact, the only proper documentary evidence pres ented below (attached to plaint iff’s response) was a letter from Mr. Prendushi that merely foreshado wed the message from plaintiffs’ attorney quoted previously. As Mr. Prendushi’s letter explaine d: “[W]e cannot live in this apartment anymore [because] [t]here is no accessibility for my wife, no bathroom for her, no space to move her around and our master bedroom has been used a s a bathroom for almost 13

7 Although Farmers contends that, in addition to this letter, it also provided a description of plaintiffs’ apartment, no such desc ription accompanied Farmers’ motion below.-8- years, the whole apartment smells so bad.” At first blush this letter seems to reveal that plaintiffs’ apartment does not accommodate any of Mrs. Prendushi’s injuries.

However, on appeal both parties rely on evidence they did not cite below. Plaintiffs cite Mr. Prendushi’s deposition test imony indicating that a ramp and bars were installed for his wife. 8 By the same token, while Farmers quotes this same deposition tr anscript for Mr. Prendushi’s assertion that the apartment was not accessible for his wife, Farmers did not rely upon that testimony in support of its argument below, either. This is ce rtainly not the forum for the parties to rely on evidence they neglected to cite in the first instanc e. See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc , 285 Mich App 362, 380; 775 NW2d 618 (2009) (“When reviewing a motion for summary disposition, this Court’s review is limited to review of the evidence properly presented to the trial court”), citing, among others, Guarino v Brookfield Twp

Trustees , 980 F2d 399, 404 (CA 6, 1992) (“This Court will not entertainon appeal factual recitations not presented to the district court any more readil y than it will tolerate attempts to enlarge the record itself.”). We accordingly vacate the trial court’s ruling regarding whether the rent is an ordinary expense, and remand for further considerati on of this issue through the submission of evidence (be it by m otion or otherwise) to the tr ial court. 9

Because this issue will be reviewed again on remand, we briefl y comment upon the trial court’s alternative mitigation analysis. Specifically, the tri al court held that where Mrs. Prendushi moved from the nursing home only after consultation w ith Farmers, the question of whether this move reasonably mitigated plaintiffs’ damages was one for the jury. In reaching this determination, the trial court relied on Marquis v Hartford Accident & Indemnity (After Remand) , 444 Mich 638, 651-652; 513 NW2d 799 (1994), in which the Supr eme Court determined that the common law obligation to mitigate damages a pplied to a claim for work-loss benefits under MCL 500.3107(1)(b) (permitting recovery for lostincome resulting from the work an injured person would have performed for three years after th e accident but for the injury). Id

. at 651. But whether an injured claimant has an obligation to a ccept a lesser paying job in order to mitigate work-loss damages is distinct from the central ques tion here. Indeed, the issue at hand is not whether Mrs. Prendushi was required to live in an apartment rather than a nursing home in order to mitigate damages, but instead whether her apa rtment is reasonably necessary

8 Plaintiffs admit that they did not cite, let alone mention, th at testimony in their response below. Moreover, it was Farmers—not plaintiffs —who provided that depositio n transcript to the trial court in its reply brief, i.e., after plaintiffs filed their response.

9 Farmers additionally argues that ongoing rental expenses are n ot compensable. Discussion of that issue would be premature, however, given that on remand th e court must first resolve the threshold matter of whether any compensable modifications were made to the apartment in the first place. Nevertheless, we note that neither party disputes that housing is an ordinary cost of life. Accordingly, if it is determined that compensable modifi cations were made to the apartment, the remaining issue is whether plaintiffs are entitl ed to compensation for a combined or integrated modification. In the event those modifications a re integrated, the court would then have to determine whether ongoing r ental costs are appropriate.-9- for her care, recovery, or rehabilitation under § 3107(1)(a). Only if it is are the expenses compensable.

To this point, Griffith v State Farm Auto Ins Co , 472 Mich 521; 697 NW 2d 895 (2005), is instructive. There, the Supreme Court determined that an injur ed claimant’s food was an allowable expense if consumed at an institution, but not at hom e since the claimant was required to eat “hospital food” for his c are, recovery, or rehabilitatio n while in the institution. Id . at 537- 538. By analogy, the Court extend ed this reasoning to housing costs, asking rhetorically, “While Griffith was institutionalized, defendant paid his housing cost s. Should defendant therefore be obligated to pay Griffith’s housing payment now that he has bee n released when Griffith’s housing needs have not been affected by his injures?” Id . at 539.

Here, no one disputes that housi ng is an ordinary cost of life . Rather, the issue is whether Mrs. Prendushi’s apartment has been modified for her care, reco very, or rehabilitation. Or, in Griffith’s language, are Mrs. Prendushi’s hous ing needs affected by her in juries? Id . Plaintiffs obviously argue that her housing ne eds are so affected, but abs ent any evidence that an otherwise ordinary apartment has been modified for those needs, Farmers c annot be liable for her rent. And while we are sensitive to plaintiffs’ claim that they used an unsuitable apartment as a stopgap while they located suitable housing, Farmers’ total lia bility for the rent still hinges on whether the apartment was equipped with handicap modifications, either in a combined or integrated fashion. Admire , 494 Mich 28-29. Agai n, only the latter is fully compensable. As we previously concluded, however, on this record there was insufficient evidence (with some of the evidence simply conflicting) as to whether the apartment was mo dified for Mrs. Prendushi’s care, recovery, or rehabilitation, such that the rent—or the co st for accommodation, depending on its scale and scope—are an “allowable expense.” The trial c ourt must reconsider this issue on
remand. 10

b. ARE PLAINTIFFS’ ATTENDANT CARE EXPENSES “ALLOWABLE EXPENSES ?”

Regarding Mrs. Prendushi’s attendant care costs, Farmers does not dispute that such expenses, even if provided by family members, may constitute al lowable expenses under the nofault act provided they are not for “ordinary and necessary services.” See In re Carroll (On Remand) , 300 Mich App 152, 170; 832 NW2d 276 (2013), citing Douglas , 492 Mich at 262.

10 Farmers asserts that the trial court’s subsequent order exclud ing evidence of any “costssavings” plaintiffs may have ach ieved by moving from the nursin g home effectively undermines the trial court’s mitigation analysis. Plaintiffs respond that the trial court’s evidentiary ruling— relying at least in part on MRE 403 to exclude evidence whose u ndue prejudice substantially outweighed its probative value—wa s based on a different standar d. What plaintiffs fail to realize, however, is that evidence must be substantively admiss ible in order to defeat a motion for summary disposition. Barnard , 285 Mich App at 373 (a trial court may only consider substantively admissible evidence when ruling on a motion for s ummary disposition). Regardless, because the trial court improperly denied Farmers’ motion for summary disposition on this point for the reasons already stated, we need not consi der this unpreserved argument
further.-10- Instead, Farmers claims plaintiffs may not recover additional attendant care costs because: (1) Mrs. Prendushi did not actually incur costs for those services, (2) plaintiffs submitted no proof of the amount of loss, and (3) Mrs. Prendushi’s costs are not reas onable. Taking each in turn, we conclude that each of these arguments lacks merit.

i. DID PLAINTIFFS INCUR A TTENDANT CARE EXPENSES?

The law is clear that in order for attendant care costs to con stitute “allowable expenses” under the no-fault act, they must, among other things, actually be incurred by the claimant. Douglas , 492 Mich at 262-263. An expense is actually incurred when the claimant “become[s] liable or subject to [someone] because of [his or her] own acti ons.” Id . at 267 (citation omitted). The touchstone for determining whether an injured claimant actu ally incurred attendant care expenses as contemplated by MCL 500.3107(1)(a) hinges on whethe r the caregiver has an expectation of compensation. Douglas , 492 Mich at 267-268, citing Burris v Allstate Ins Co

, 480 Mich 1081; 745 NW2d 101 (2008). This expectation may be es tablished in a variety of ways, including documentary evidence (such as bills, statements or contracts) or even a caregiver’s testimony. Douglas , 492 Mich at 269-270. However, “[w]ithout the expectation of compensation the evidence fail[s] to establish that the plainti ff ‘incurred’ attendant-care expenses.” Id . at 268, quoting Burris , 480 Mich at 1081 (second altera tion in original).

Concerning incurred expenses, Fa rmers focuses exclusively on w hether plaintiffs’ family-caregivers expected compe nsation for attendant care cost s beyond what Farmers had already paid. In support, Farme rs cites only the deposition te stimony of Mrs. Prendushi’s husband and daughter. As for the former, Farmers asserts that Mr. Prendushi expressed only
dissatisfaction with the rate he was paid (Mr. Prendushi conced ed he was unhappy with his remuneration, but could not explain what rate of compensation h e considered reasonable). And as for the latter, Farmers points out that Mrs. Prendushi’s dau ghter admitted that her mother owed her nothing for her services.

Setting aside the daughter’s testimony (whose testimony does n ot create a genuine issue of material fact), this evidence viewed in the light most favor able to plaintiffs does not reveal that Mr. Prendushi lacked an expe ctation of compensation. To t he contrary, it reveals that he expected greater compensation. Mr. Prendushi could not have ma de this point more succinctly than when he testified at that same deposition that the rate Fa rmers paid “was not good for me.” 11 While Mr. Prendushi did not explai n exactly how much he expecte d to receive, numerical certainty is not the standard under Douglas . Rather, the claimant need only provide “some basis for a fact-finder to conclude that the caregiver had some expec tation of compensation from the insurer, even if the e xpectation of compensation was not the pr imary motivation for providing
the care.” Douglas , 492 Mich at 267 n 56. By the same token, the family member’s determination to provide care, even in the absence of sufficien t payment from the insurer, does not forfeit the caregiver’s exp ectation of compensation. Id . Accordingly, there minimally exists

11 Plaintiffs also cite evidence that Farmers’ claim adjusters co nceded the necessity of attendant care. However, neither citation goes to the expectation of com pensation held by Mrs. Prendushi’s family-caregivers.-11- a genuine issue of material fact as to whether Mrs. Prendushi i ncurred attendant care costs with respect to Mr. Prendushi’s services.

ii. DID PLAINTIFFS PROVE THE AMOUNT OF LOSS?

Farmers contends that even if Mrs. Prendushi incurred addition al attendant care costs, they did not establish the amount of those costs as MCL 500.314 2 requires. Section 3142 requires a claimant to submit “reasonable proof of the fact and of the amount of loss sustained” to trigger an insurer’s obligation to pay. MCL 500.3142(2). T his is necessary since a jury may not speculate as to the amount of losses a claimant has incurre d. Attard v Citizens Ins Co of

America , 237 Mich App 311, 322; 602 NW2d 633 (1999). However, in subm itting reasonable proof, the claimant need not est ablish the exact amount of mone y the insurer owes since “[t]he statute requires only reasonable proof of the amount of lo ss, not exact proof.” Williams v AAA

Mich , 250 Mich App 249, 267; 646 NW2d 476 (2002) (emphasis in origi nal).

In support of its argument, Farmers accuses plaintiffs of not just failing to prove the amount of their loss, but of actually refusing to submit any pr oof on this issue. Specifically, Farmers highlights Mr. Prendushi ’s reliance on th e attorney-cli ent privilege in refusing to delineate the total amount of compensation he seeks from Farmer s. Mr. Prendushi’s testimony is not the whole story, however, as plaintiffs also submitted the affidavit of their caseworker, Feinberg-Rivkin, in response to Farmers’ motion. That affidavi t—whose admissibility Farmers challenged in a separate motion—sets forth the caseworker’s fam iliarity with Mrs. Prendushi’s attendant care needs as well as the services provided by Mrs. P rendushi’s family. FeinbergRivkin clearly opined that Mrs. Prendushi’s caregivers provide services akin to those of a skilled nurse, whose hourly compensation would range between $40 and $6 0, and that anyone providing such services would be entitled to that level of compensation r egardless of his or her
classification as a skilled nurse.

This evidence clearly does not call upon jurors to guess, but instead provides an exact range from which they may determine whether plaintiffs seek a r easonable amount of additional
attendant care costs. Plaintiffs have therefore satisfied thei r burden to respond with documentary evidence regarding th e amount of their loss. 12 The trial court was c orrect on this point.

iii. ARE THE ATTENDANT CARE COSTS REASONABLE?

As its last fallback, Farmers maintains that plaintiffs’ addit ional attendant care costs are not recoverable because they are unreasonable. We begin our an alysis by stating the obvious: insurers are only obligated to pay PIP benefits for reasonable charges. Bronson Methodist Hosp

v Auto-Owners Ins Co , 295 Mich App 431, 448; 814 NW2d 670 (2012). But what constit utes a

12 Plaintiffs also assert that, in addition to the Feinberg-Rivki n affidavit, they presented evidence that Mr. Prendushi responded to all of Farmers’ requests for in formation regarding attendant care services and that Farmers’ claims adjusters failed to review th e claims file adequately. However, neither aids our analysis here since neither pertains to the ad ditional amount plaintiffs claim

Farmers owes.-12- reasonable charge? While the fact-finder ultimately makes this determination, id ., our Supreme Court has provided guidance regarding the reimbursement of fami ly-caregivers like the ones in this case. Most relevant is the actual rate paid to caregivers who provide similar services rather than the rate an agency charges its patients. Douglas , 492 Mich at 275. This is “because [that compensation] helps the fact-finder to determine what the careg ivers could receive on the open
market.” Id

.

Here, Farmers relies upon a chart from the Federal Bureau of L abor Statistics to justify the rate it pays Mrs. Prendushi’s family-caregivers. That char t outlines the hourly mean and median wages for healthcare work ers in plaintiffs’ geographic m arket ranging from personal care aides (approximately $10 an hour) to licensed nurses (approxima tely $20 an hour). In response, plaintiffs cite the Feinberg-Rivkin affidavit, which as noted, delineates the tasks of Mrs. Prendushi’s caregivers and opines that several of their tasks “ fall within the category of a Skilled Nurse,” who Feinberg-Rivkin opine s, would be paid at a rate of $40 to $60 an hour depending on the services performed.

Farmers claims this affidavit is insufficient because no evide nce shows that Mrs. Prendushi actually requires the care of a skilled nurse. In support, Farmers relies on the January 16, 2014 letter from Mrs. Prendushi’s physician indicating thatshe does not require a Licensed Practical Nurse (LPN) or advanced attendant care at this time. Farmers asserts that this evidence reveals that payment for a profe ssional nurse’s s ervices would be more than the “least expensive adequate means” that Farmers is required to reimburse plaintiff s, Kitchen v State Farm Ins Co

, 202 Mich App 55, 58; 507 NW2d 781 (1993), and it is therefore n ot reasonable to compensate the family-caregivers at similar rates. However, because Farme rs presented this evidence in support of its motion in limine rather than at the summary disp osition stage, it is not properly
before us now. Barnard Mfg Co, Inc , 285 Mich App at 380, citing, among others, Guarino , 980
F2d at 404.

But even if we were to consider this evidence, it would not be conclusive in light of Feinberg-Rivkin’s opinion that a c aregiver, “regardless of clas sification, i.e., Skilled Nurse, LPN/High Tech Aide or Home Health Aide, is paid the same hourly rate for all care provided” since they are required to be as knowledgeable and available to their patient during their shifts as skilled providers. Farmers’ argument therefore goes to the wei ght of Feinberg-Rivkin’s opinion, which is an argument to be made at trial, not here. Skinner , 445 Mich at 161.

Moreover, Feinberg-Rivkin’s opinion is consistent with Douglas , which explained that “[i]n determining reasonable com pensation for an unlicensed per son who provides health care services, a fact-finder may consider the compensation paid to l icensed health car e professionals who provide similar services.” Douglas , 492 Mich at 274, quoting Bonkowski v Allstate Ins Co

, 281 Mich App 154, 164; 761 NW2d 784 (2008) (alteration in Douglas ). The emphasis, then, is on the caregiver’s services rathe r than the caregiver’s credent ials. See Bonkowski , 281 Mich App at 168-169 (allowing a family -caregiver to recover compensa tion comparable to that of a qualified attendant caregiver where the family-caregiver “provi de[d] care consistent with that of a licensed health care professional.”). Consequently, where pl aintiffs have presented evidence that at least some of Mrs. Prendushi’s caregivers’ tasks are ak in to those provided by licensed professionals and plaintiffs hav e established the amount of com pensation typically received for those services, a genuine issue of material fact exists on this issue.-13- B. MOTION IN LIMINE

This brings us to Farmers’ challenge regarding the denial of i ts motion in limine. Although we review a trial court’s decision to admit evidence f or an abuse of discretion, we review related preliminary questions of law de novo. Barnett v Hidalgo , 478 Mich 151, 158- 159; 732 NW2d 472 (2007). A trial c ourt abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006).

In raising this issue, Farmers essentially recasts its prior m eritless attack on the FeinbergRivkin affidavit with one additi onal wrinkle. Specifically, Fa rmers asserts that just as the rate an agency charges its patients is irrelevant to the compensation o f a family-caregiver, so too are a skilled nurse’s wages irrelevant when that family-caregiver lac ks a professional licensure. As already noted, however, where similar services are concerned, a fact-finder may consider the compensation paid to licensed care providers in determining a f amily-caregiver’s remuneration. Douglas , 492 Mich at 274. This motion in limine was properly denied.

IV. DOCKET NO. 321511

Finally, Farmers invokes the wo rk-product doctrine in contesti ng the order requiring production of its entire litigation file. Whether the work-pro duct privilege is applicable and whether it has been waived are questions of law that we review de novo. Augustine v Allstate Ins

Co , 292 Mich App 408, 419; 807 NW2d 77 (2011). Upon making those determinations, our
attention turns towards the trial court’s ultimate decision on plaintiffs’ discovery motion, which
we review for an abuse of discretion. Id

.

Evidentiary discovery in Michigan is open and broad, provided, among other things, that the information sought is not privileged. MCR 2.302(B)(1); Reed Dairy Farm v Consumers

Power Co

, 227 Mich App 614, 616; 576 NW2d 709 (1998). Privileged informa tion includes direct communications between the attorney and client for legal advice, as well as the related qualified privilege pertaining to written material known as the work-product doctrine. Augustine , 292 Mich App at 420. The work-product doctrine protects from discovery “ ‘any notes, working papers, memoranda or similar materials, prepared by an attorney in anticipation of litigation . . . .’ ” Messenger v Ingham Co Prosecutor , 232 Mich App 633, 636-637; 591 NW2d 393 (1998), quoting Black’s Law Dictionary (6th ed, 1990), p 1606. The doctrine is codified in MCR 2.302(B)(3 )(a), which provides:

Subject to the provisions of subrule (B)(4) [regarding the dis covery of facts and opinion held by experts], a party may obtain discover y of documents and tangible things otherwise discoverable under subrule (B)(1) and prepared in anticipation of litigation or for trial by or for another party or another party’s representative (including an atto rney, consultant, surety, inde mnitor, insurer, or agent) only on a showing that the party seeking discovery has s ubstantial need of the materials in the preparation of the case and is unable with out undue hardship to obtain the substantial equiva lent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, con clusions, opinions,-14- or legal theories of an attorney or other representative of a p arty concerning the litigation.

As MCR 2.302(B)(3) reveals, the work-product privilege is not absolute and must be balanced against an opposing party’s showing of substantial nee d for the materials plus an inability to obtain the information without undue hardship. Messenger , 232 Mich App at 638. Even with such a showing, however, only factual and not deliber ative work product is
discoverable. Augustine , 292 Mich App at 421.

Here, in response to plaintiffs’ supplemental discovery reques t for Farmers’ entire claims, SIU, and litigation files, Farmers provided a “privilege log.” Regarding the litigation file, that log provided only the following: “Entire file not produced purs uant to MCR 2.302(B)(3)(a) for referencing mental impression, c onclusion[s], opinions, or theo ries of a party in anticipation of litigation or for trial and communication subject to attorney-c lient privilege.” The trial court found this response wanting, noting that Farmers had failed to comply with Michigan authority requiring the production of adetailed privilege log.

As a preliminary matter, we note that Michigan law does not require a privilege log to accompany the assertion of the work-product privilege; instead Michigan cases have merely acknowledged that federal author ity requiring parties to specif ically identify the documents allegedly subject to the privileg e may guide our interpretation of Michigan’s work-product
doctrine. See Koster v June’s Trucking, Inc , 244 Mich App 162, 169; 625 NW2d 82 (2000), citing Great Lakes Concrete Pole Corp v Eash , 148 Mich App 649, 656 n 6; 385 NW2d 296 (1986) (noting that “one method” to alleviate the burden of an in camera inspection of volumes of documents in complex litigation is to employ the method of f ederal courts requiring the production of a privilege log). B ut federal guidance is not th e same as a state requirement.

This is not to say, however, that the trial court could not ha ve ordered a detailed privilege log before conducing an in camera inspection. Indeed, we agree with the trial court that Farmers’ assertion of the privile ge was “woefully inadequate” w here Farmers did nothing more than regurgitate MCR 2.302(B)(3). It is impossible to discern what specifically privileged information Farmers’ litigation file contains from that blanket assertion alone. Moreover, while on appeal Farmers relies on Schwab’s deposition to support its assertion of the privilege, Farmers did not cite that testimony either in its response to p laintiffs’ motion on this matter or during the ensuing motion hearing. In any event, that testimon y does nothing more than vaguely describe the contents of the litigation file as containing corr espondence and court filings. Thus, even were we to consider that testimony, we are still left with out the specific information needed to discern the privileged conten ts of the litigation file.

Nevertheless, Farmers’ failure to adequately describe its liti gation file cannot mean that it has categorically waived any privilege it may have. See D’Alessandro Contracting Group, LLC v Wright , 308 Mich App 71, 81; 862 NW2d 466 (2014) (the waiver of the w ork-product privilege must, among other things, be voluntary); Leibel v Gen Motors Corp , 250 Mich App 229, 241; 646 NW2d 179 (2002) (the waiver of the related attorney-client privilege must be “an intentional and voluntary act that cannot arise by implication . . . .”). And absent some sort of waiver, MCR 2.302(B)(3)(a) expressly requires a trial court to protect priv ileged work product from discovery (“the court shall protect”).-15- The fact that Farmers did not waive this privilege does not me an Farmers’ generic invocation of it is justified, however. As noted, nothing in e ither Schwab’s deposition or Farmers’ blanket denial did anythi ng to “put both plaintiffs an d the court on notice regarding the nature of the privileges asserted and the documents to which th e alleged privileges applied.”

Koster , 244 Mich App at 170. This is significant, for even in Koster —upon which both parties rely—this Court concluded that although the insurance company’s court-ordered l etter organized the documents at issue into four categories (including communic ations between counsel and the insurance company, internal commu nications of the insurance com pany generated as a result of the advice of counsel, billing information, and information the plaintiffs had agreed not to seek), this was not sufficient to definitively cloak the entire claims file in the work-product privilege.

Id . at 170-172. It was for this reason that the Koster Court remanded that case for the trial court to determine whether the claims file documents were in fact pro tected under the work-product
doctrine in the first instance. Id . at 172.

Like Koster , this record is insufficient to determine the scope of the work-product doctrine’s protection. But Farmers has provided even less info rmation regarding the contents of its litigation file than the insurance company in Koster . Accordingly, even before plaintiffs can be required to demonstrate any substantial need or undue hardsh ip, see id . (the burden shifts to the party seeking discovery to e stablish substantial need and undue hardship after the court determines whether the work-produ ct doctrine applies), the tria l court must first determine what materials in Farmers’ litigation file are subject to the privil ege. As Great Lakes Concrete Pole Corp instructs, one method may be to or der a more detailed privilege log before conducting an in camera inspection. Great Lakes Concrete Pole Corp , 148 Mich App at 656 n 6. But whatever method the court chooses, ordering Farmers to categorically pro duce its litigation file absent a waiver or determination regardi ng whether the work-product doct rine applies is outside the range of reasonable and principled outco mes under these circumstances

.

V. CONCLUSION

In Docket No. 321348, we affirm the trial court’s order denyin g Farmers’ motion in limine. However, we vacate the trial court’s summary dispositi on ruling that plain tiffs’ rent is an “allowable expense” and remand for further proceedings on that issue. In all other respects, we
affirm the trial court’s order de nying Farmers’ motion for summ ary disposition. In Docket No. 321511, we reverse the trial court’s order requiring Farmers to produce its entire litigation file. On remand, the court should determine which documents (if any) in the file are subject to the work-product privilege and then d etermine whether plaintiffs ha ve demonstrated the substantial need and undue hardship necessary to obtain access to the factu al portions of the litigation file. We do not retain jurisdiction.

No costs, neither party having pr evailed in full. MCR 7.219.

/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Donald S. Owens