If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

C O U R T O F A P P E A L S

EMIL RAMIREZ,

Plaintiff-Appellee,

UNPUBLISHED

February 10, 2022

v No. 350884

Grand Traverse Circuit Court

HOME-OWNERS INSURANCE COMPANY, LC No. 2018-034466-NF

Defendant-Appellant,

and

TERESA M. BOADWAY,

Defendant.

Before: BOONSTRA, P.J., and BORRELLO and RICK, JJ.

PER CURIAM.

Defendant-appellant, Home-Owner’s Insurance Company, appeals by right the trial court’s 

order granting plaintiff’s motion for taxable costs and no-fault attorney fees, and awarding plaintiff 

$70,508.62 in taxable costs, fees, and interest. The same order also denied defendant’s motions 

for remittitur and attorney fees. The order was entered following a jury trial at which the jury 

awarded plaintiff $55,279.79 in overdue personal injury protection (PIP) benefits and interest. For 

the reasons discussed below, we vacate the trial court’s order in part and remand the case with 

instructions that the trial court give further consideration regarding the reasonable factors 

governing awards of attorney fees.

I. BASIC FACTS

In September 2017, plaintiff was involved in a single-car accident when he lost control of 

his vehicle on a rainy day and struck a pole. Thereafter, plaintiff suffered from severe headaches, 

short-term memory loss, difficulty multitasking, and other cognitive issues. Plaintiff sought 

personal injury protection (PIP) benefits, including wage loss, attendant care, household services, 

medical care, and other benefits, from defendant, his automobile insurance provider. Defendant 
-2-

paid some benefits before suspending payments in December 2017 while investigating whether 

plaintiff’s medical conditions arose from the September 2017 accident. Plaintiff’s first 

independent medical evaluation in February 2018 suggested that plaintiff required attendant care 

and was unable to return to work without treatment and further testing. However, the evaluator 

did not reach a conclusion regarding the causation of plaintiff’s injuries. Thereafter, defendant 

required a second independent medical evaluation, and in August 2018 the second evaluator 

opined that plaintiff’s injuries did not arise from the automobile accident. Defendant stopped 

providing benefits, and plaintiff sought relief from the trial court.

Prior to trial, defendant made an offer of judgment, suggesting a $35,000 settlement. 

Plaintiff did not respond. Following a three-day jury trial, the jury awarded $55,279.79 in overdue 

PIP benefits and interest. This amount was less than the sum sought by plaintiff. Defendant filed 

a motion for remittitur and a second motion for attorney fees. Plaintiff also filed a motion for 

attorney fees and costs. Following a hearing on the matter, the trial court awarded plaintiff the full 

amount of his attorney fees and taxable costs and denied defendant’s motions. Defendant appeals 

this order.

II. STANDARDS OF REVIEW

Generally, this Court reviews the interpretation of statutes and court rules de novo. Simcor 

Constr, Inc v Trupp, 322 Mich App 508, 513-514; 912 NW2d 216 (2018). This Court also reviews 

the interpretation and application of the offer-of-judgment rule de novo. Id. at 514.

When interpreting unambiguous statutory language, the statute must be enforced as 

written. No further judicial construction is required or permitted. Our goal is to 

give effect to the Legislature’s intent, focusing first on the statute’s plain language. 

We must examine the statute as a whole, reading individual words and phrases in 

the context of the entire legislative scheme. In doing so, we consider the entire text, 

in view of its structure and of the physical and logical relation of its many parts. 

[Ally Fin, Inc v State Treasurer, 502 Mich 484, 493; 918 NW2d 662 (2018) 

(cleaned up).]

Further, the trial court’s factual determination regarding whether an insurance company acted 

reasonably with regard to paying no-fault benefits “involves a mixed question of law and fact. 

What constitutes reasonableness is a question of law, but whether the defendant’s denial of benefits 

is reasonable under the particular facts of the case is a question of fact.” Moore v Secura Ins, 482

Mich 507, 516; 759 NW2d 833 (2008) (cleaned up). Findings of fact are reviewed for clear error. 

Id. The trial court clearly errs when this Court is left with a definite and firm conviction that the 

trial court made a mistake. Id.

Additionally, when attorney fees are authorized, this Court reviews the trial court’s award 

of attorney fees for an abuse of discretion. Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274;

884 NW2d 257 (2016). The court abuses its discretion when its determination of attorney fees 

falls outside the range of reasonable and principled outcomes, or it errs in its application of the 

law. Id.
-3-

III. ATTORNEY FEES

Defendant argues that the evidence at trial does not support the trial court’s conclusion that 

defendant wrongfully denied plaintiff’s no-fault benefits, thereby rendering plaintiff eligible for 

attorney fees under MCL 500.3148. Defendant also argues that the trial court’s award of attorney 

fees and costs to plaintiff under MCL 500.3148 was erroneous because plaintiff failed to file a 

counteroffer to defendant’s offer of judgment under MCR 2.405. Defendant asserts that by failing 

to file a response or counteroffer, plaintiff became ineligible to recover “actual costs,” which is 

defined to include taxable costs and reasonable attorney fees. We disagree.

“[A]ttorney fees generally are not recoverable from the losing party as costs in the absence 

of an exception set forth in a statute or court rule expressly authorizing such an award.” Pirgu, 

499 Mich at 274-275 (cleaned up); see MCL 600.2405(6). “The no-fault act provides for an award 

of reasonable attorney fees when an insurer unreasonably withholds benefits.” Bronson Methodist 

Hosp v Auto-Owners Ins Co, 295 Mich App 431, 456; 814 NW2d 670 (2012). At the time of trial, 

MCL 500.3148(1), as enacted by 1972 PA 294, stated in relevant part:

An attorney is entitled to a reasonable fee for advising and representing a 

claimant in an action for personal or property protection insurance benefits which 

are overdue. The attorney’s fee shall be a charge against the insurer in addition to 

the benefits recovered, if the court finds that the insurer unreasonably refused to 

pay the claim or unreasonably delayed in making proper payment.

“The purpose of the no-fault act’s attorney-fee penalty provision is to ensure prompt 

payment to the insured.” Ross v. Auto Club Group, 481 Mich 1, 11, 748 NW 2d 552 (2008). In 

Moore, our Supreme Court held that MCL 500.3148(1) “establishes two prerequisites for the 

award of attorney fees.” Moore, 482 Mich at 517. First, the benefits must be overdue as 

contemplated by MCL 500.3142(2), which means they were “not paid within 30 days after the 

insurer receives reasonable proof of the fact and of the amount of loss sustained.” Id. (cleaned 

up). Secondly, the trial court must determine if the insurer “ ‘unreasonably refused to pay the 

claim or unreasonably delayed in making proper payment.’ ” Moore, 482 Mich at 517, quoting 

MCL 500.3148(1). “When benefits initially denied or delayed are later determined to be payable, 

a rebuttable presumption arises that places the burden on the insurer to justify the refusal or delay.” 

Bronson Methodist Hosp, 295 Mich App at 457 (cleaned up). “However, a refusal to pay or a 

delay in payment is not unreasonable if it is based on a legitimate question of statutory 

construction, constitutional law, or factual uncertainty. The determinative factor is not whether 

the insurer ultimately is held responsible for benefits, but whether its initial refusal to pay was 

unreasonable.” Id. (cleaned up).

Defendant contends that there was bona fide factual uncertainty regarding whether PIP 

benefits were properly owed and that its decision to refuse payment was reasonable because the 

decision was supported by the independent medical evaluator’s opinions. “[A]n insurer may 

reasonably rely on the medical opinion of its physicians and the [independent medical evaluations 

(IMEs)] the physicians perform . . . .” Tinnin v Farmers Ins Exch, 287 Mich App 511, 516; 791 

NW2d 747 (2010). No-fault insurers do not have a duty “to ‘go beyond’ the medical opinion of 

their physicians and the IMEs that those physicians perform.” Moore, 482 Mich at 522. However, 

as noted by the trial court, in this case, defendant ceased making payments before it had received 
-4-

a medical opinion that supported a conclusion that the benefits were “unrelated, unnecessary[,] or 

unreasonable.” The record indicates that defendant made the decision to “pend” payments in 

December 2017. Thereafter, plaintiff attended an independent medical exam, arranged by 

defendant, with Dr. Donald Boyd in February 2018. Despite Dr. Boyd’s findings that plaintiff was 

injured and required treatment and attendant care and should not return to work until his testing 

improved, defendant denied and continued to delay paying bills associated with plaintiff’s injuries. 

Subsequently, defendant sent plaintiff to a second independent medical examination with Dr. 

Eduardo Montoya, who ultimately determined that plaintiff’s cognitive impairments did not arise 

out of the motor vehicle accident. At that point, defendant terminated all benefits. However, both 

the jury and the trial court concluded that the claims were overdue. Given that defendant failed to 

make timely payments and thereafter had no intention to pay the claims submitted, we agree with 

the trial court’s assessment that the benefits were unreasonably denied or delayed. On that basis, 

we agree with the trial court’s assessment that MCL 500.3148(1) would support an award of 

attorney fees.

A. THE OFFER OF JUDGMENT RULE AND MCL 500.3148(1)

Defendant also argues that plaintiff is not entitled to attorney fees under MCL 500.3148(1) 

because plaintiff failed to respond to defendant’s offer under MCR 2.405. 

MCR 2.405 governs offers to stipulate to entry of judgment and addresses the issue of costs 

following the rejection of an offer to stipulate to the entry of a judgment. MCR 2.405(D).1 This 

is known as the “offer of judgment rule.” Simcor Constr, 322 Mich App at 514. “The purpose of 

MCR 2.405 is to encourage settlement and to deter protracted litigation.” Luidens v 63rd Dist 

Court, 219 Mich App 24, 31; 555 NW2d 709 (1996) (cleaned up). According to 

MCR 2.405(C)(2), “[a]n offer is rejected if the offeree (a) expressly rejects it in writing, or (b) 

does not accept it as provided by subrule (C)(1).” MCR 2.405(C)(1) spells out the method of 

acceptance. Moreover, MCR 2.405(D) addresses the issue of costs following the rejection of an 

offer and states:

If an offer is rejected, costs are payable as follows:

(1) If the adjusted verdict is more favorable to the offeror than the average 

offer, the offeree must pay to the offeror the offeror’s actual costs incurred in the 

prosecution or defense of the action.

(2) If the adjusted verdict is more favorable to the offeree than the average 

offer, the offeror must pay to the offeree the offeree’s actual costs incurred in the 

prosecution or defense of the action. However, an offeree who has not made a 

counteroffer may not recover actual costs unless the offer was made less than 42 

days before trial.

 

1 MCR 2.405(A)(6) was recently amended December 2, 2021, effective January 1, 2022, 507 Mich 

___ (2022).
-5-

(3) The court shall determine the actual costs incurred. The court may, in 

the interest of justice, refuse to award an attorney fee under this rule. 

[MCR 2.405(A)(6), as amended October 2, 2013, 495 Mich clxxxix (2014).]

MCR 2.405(A)(3) defines an “average offer” as “the sum of an offer and a counteroffer, divided 

by two. If no counteroffer is made, the offer shall be used as the average offer.” Moreover, the 

previous version of the court rule, which was applicable to this dispute, defined “actual costs” as 

“the costs and fees taxable in a civil action and a reasonable attorney fee for services necessitated 

by the failure to stipulate to the entry of judgment.” MCR 2.405(A)(6), as amended October 2, 

2013, 495 Mich clxxxix (2014).

2

 In other words, MCR 2.405 concerns itself with the taxable costs 

and attorney fees incurred after an offer or counteroffer is rejected. MCR 2.405(A)(6).

In this case, defendant filed an offer of judgment in the amount of $35,000 on February 21, 

2019. Plaintiff’s failure to respond to the offer constituted a rejection of the offer. 

MCR 2.405(C)(2)(b). Trial began on May 14, 2019, thereby establishing that defendant’s offer 

was made more than 42 days before trial. MCR 2.405 (D)(2). Therefore, even though the jury’s 

award of $55,279.79 was more favorable than the original offer, plaintiff’s failure to make a 

counteroffer effectively barred his ability to recover actual costs under the offer of judgment rule. 

MCR 2.405(D)(2).

However, both the Michigan court rules and statute provide a method for the trial court to 

award attorney fees and costs for litigation.3 MCL 600.2405(6) specifically provides that attorney 

fees “may be taxed and awarded as costs” when “authorized by statute or by court rule.” 

(Emphasis added). Generally, “the disjunctive term ‘or’ refers to a choice or alternative between 

two or more things . . . .” AFSCME Council 25 v Wayne Co, 292 Mich App 68, 92-93; 811 NW2d 

4, 18 (2011).

Our Supreme Court has recognized that attorney fees and costs may be awardable under a 

court rule or a statute. See Rafferty v Markovitz, 461 Mich 265; 602 NW2d 367 (1999); McAuley 

v Gen Motors Corp, 457 Mich 513, 521-522; 578 NW2d 282 (1998), overruled in part by Rafferty, 

461 Mich at 273 n 6 (repudiating the dicta in McAuley “that left open the possibility of recovering 

attorney fees under both a court rule and a statute where each attorney-fee provision serves an 

independent purpose.”). In Rafferty, 461 Mich at 267-268, the trial court awarded the plaintiff 

attorney fees under both the Civil Rights Act, MCL 37.2101 et seq.; MCL 37.2802, and the 

mediation sanction court rule, MCR 2.403(O). This Court affirmed the trial court’s award on the 

basis of Howard v Canteen Corp, 192 Mich App 427; 481 NW2d 718 (1991), overruled by 

Rafferty, 461 Mich at 273 n 6. Rafferty, 461 Mich at 268. Our Supreme Court overruled Howard

and reserved, reiterating that a party is not entitled to double recovery of attorney fees under a 

 

2 MCR 2.405(A)(6) now defines “actual costs” as “the costs and fees taxable in a civil action and 

a reasonable attorney fee, dating to the rejection of the prevailing party’s last offer or counteroffer, 

for services necessitated by the failure to stipulate to the entry of judgment.” MCR 2.405(A)(6) 

as amended December 2, 2021, effective January 1, 2022, 507 Mich ___ (2022).

3 However, we note that “double recovery” under both a court rule and statute is not permissible. 

See Rafferty v Markovitz, 461 Mich 265, 273 n 6; 602 NW2d 367 (1999).
-6-

court rule and statute. Id. at 271-272, 273 n 6. Our Supreme Court explained that because the 

plaintiff had been fully compensated for her reasonable attorney fees under the Civil Rights Act, 

which authorized “an award of reasonable attorney fees as part of the costs of litigating a civil 

rights complaint,” the plaintiff “had no remaining ‘actual costs’ for which she could claim 

compensation under the mediation court rule.” Id. at 272. Accordingly, the plaintiff could not 

recover “an amount in excess of a reasonable attorney fee.” Id.

Applying those same principles to the instant case, although plaintiff may not have been 

entitled to costs and fees under the offer of judgment rule, MCR 2.405, MCL 500.3148(1)

specifically provides an alternative basis for an award of attorney fees in this no-fault case. See 

MCL 600.2405(6) (providing that attorney fees “may be taxed and awarded as costs” when 

“authorized by statute or by court rule.”).

Other provisions of MCR 2.405(D) also support our conclusion that a party may be fully 

compensated for attorney fees under either a statute or a court rule. When interpreting a court rule

[t]he intent of the rule must be determined from an examination of the court rule 

itself and its place within the structure of the Michigan Court Rules as a whole. 

When interpreting a court rule or statute, we must be mindful of “the surrounding 

body of law into which the provision must be integrated.” [Haliw v Sterling Hts, 

471 Mich 700, 706; 691 NW2d 753 (2005) (cleaned up).]

Provisions of a statute or court rule must be read in the context of the entire statute or rule and “the 

words and phrases used there must be assigned such meanings as are in harmony with the whole 

of the statute [or court rule].” G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 

NW2d 710 (2003). The prior version of MCR 2.405(D) provided, in relevant part:

(3) The court shall determine the actual costs incurred. The court may, in 

the interest of justice, refuse to award an attorney fee under this rule. 

* * *

(5) Proceedings under this rule do not affect a contract or relationship 

between a party and his or her attorney.

(6) A request for costs under this subrule must be filed and served within 

28 days after the entry of the judgment or entry of an order denying a timely 

motion . . . . [MCR 2.405(A)(6), as amended October 2, 2013, 495 Mich clxxxix 

(2014) (emphasis added).]

The inclusion of “this rule” suggests that the application of Subdivision (D) applies only to the 

court rule itself. Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008) (“An 

undefined statutory term must be accorded its plain and ordinary meaning.”). The court rule’s 

definition of “actual costs” further supports our conclusion that plaintiff is entitled to attorney fees 

under MCL 500.3148, notwithstanding MCR 2.405. As indicated, the prior version of 

MCR 2.405(A)(1)(6) defined “actual costs” as “the costs and fees taxable in a civil action and a 

reasonable attorney fee for services necessitated by the failure to stipulate to the entry of 

judgment.” MCR 2.405(A)(6), as amended October 2, 2013, 495 Mich clxxxix (2014) (emphasis 
-7-

added). However, MCL 500.3148 established a statutory entitlement to reasonable attorney fees 

“for advising and representing a claimant in an action for personal or property protection insurance 

benefits that are overdue.” MCL 500.3148(1). Similar to Rafferty, the attorney fees awardable 

under MCL 500.3138(1) are an alternative basis to recovering actual costs for “services 

necessitated by the failure to stipulate to the entry of judgment” under MCR 2.405. See Rafferty, 

461 Mich at 267-268; McAuley, 457 Mich at 519, 522-523. Additionally, it would defeat the 

purpose of the no-fault act’s attorney-fee penalty provision, established to “ensure prompt payment 

to the insured,” Ross, 481 Mich at 11, were this Court to hold that MCR 2.405(D) bars an award

of attorney fees under MCL 500.3148(1). See McAuley, 457 Mich at 518 (“Statutes should be 

construed so as to prevent absurd results, injustice, or prejudice to the public interest.”); see also

Pike v Northern Michigan Univ, 327 Mich App 683, 693; 935 NW2d 86 (2019) (“[I]s a wellestablished rule of statutory construction that when two applicable statutory provisions conflict, 

the one that is more specific to the subject matter prevails over the provision that is only generally 

applicable.”). Therefore, although plaintiff was barred for recovering attorney fees under 

MCR 2.405, plaintiff is not barred from recovering attorney fees to which he is entitled to under 

MCL 500.3148(1). See MCL 600.2405(6). Accordingly, the trial court did not err by concluding 

that plaintiff was entitled to attorney fees under MCL 500.3148(1).

B. REASONABLENESS OF ATTORNEY FEES

Defendant also argues that the trial court erred by awarding attorney fees without 

considering all the required factors. We agree.

In Pirgu, our Supreme Court defined a three-step process by which a trial court is to 

determine a reasonable attorney fee for purposes of MCL 500.3148(1). Pirgu, 499 Mich at 281. 

The Court explained that

a trial court must begin its analysis by determining the reasonable hourly rate 

customarily charged in the locality for similar services. The trial court must then 

multiply that rate by the reasonable number of hours expended in the case to arrive 

at a baseline figure. Thereafter, the trial court must consider all of the remaining 

Wood[4]and MRPC 1.5(a) factors to determine whether an up or down adjustment 

is appropriate. [Id. (cleaned up).]

The Court summarized those eight factors as follows:

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

performing the services,

(2) the difficulty of the case, i.e., the novelty and difficulty of the questions 

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

(3) the amount in question and the results obtained,

 

4 Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982).
-8-

(4) the expenses incurred,

(5) the nature and length of the professional relationship with the client,

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

employment will preclude other employment by the lawyer,

(7) the time limitations imposed by the client or by the circumstances, and

(8) whether the fee is fixed or contingent. [Id. at 282.]

This list of factors is not exclusive. Id. “[A]ctual fees charged are not necessarily reasonable 

fees.” Vittiglio v Vittiglio, 297 Mich App 391, 410; 824 NW2d 591 (2012). The burden of proving 

the reasonableness of the fees is on the party requesting them. Id. at 409. To allow for meaningful 

appellate review, the trial court “should briefly discuss its view of each of the factors above on the 

record and justify the relevance and use of any additional factors.” Pirgu, 499 Mich at 282. 

In this case, the trial court’s only statement regarding reasonableness of the fees requested 

was a single sentence within the written opinion that suggested that an application of the Wood

factors demonstrated that the attorney fees requested by plaintiff were reasonable. However, there 

is no indication of how this conclusion was reached and no discussion, brief or otherwise, about 

how the trial court viewed each factor. Therefore, the record before us is insufficient to facilitate 

review of this issue and remand is necessary so that the trial court can properly address the relevant 

factors. See Pirgu, 499 Mich at 282.

Lastly, defendant argues that the trial court did not make any effort to apportion plaintiff’s 

attorney fees or explain why it was declining to do so. Defendant posits that because plaintiff did 

not recover the full amount of PIP benefits he sought from the jury, the trial court erred in awarding 

plaintiff’s fees in whole. As noted above, the trial court erred in awarding the entirety of plaintiff’s 

fees. Nonetheless, our review of the trial court’s opinion also suggests that the trial court did not 

appear to question which portions of plaintiff’s attorney fees were recoverable under 

MCL 500.3148(1).

This Court has held that in determining an award of attorney fees, “the court is to include 

all attorney time that was relevant to recovery of the overdue benefit, even if that time was also 

relevant to other aspects of the case.” Komendat v Gifford, 334 Mich App 138, 158; 964 NW2d 

75 (2020). Further, “[a]ttorney time that was related only to other aspects of the action, and did 

not bear on the benefits unreasonably withheld, should be excluded from the baseline.” Id. “Any 

further limitation on the baseline number of hours would be difficult to square with Pirgu, the 

statute, or with the principle that the no-fault act’s provisions should be liberally construed in favor 

of the intended beneficiaries.” Id.
-9-

Accordingly, we vacate the trial court’s order to the extent that it awards plaintiff costs and 

attorney fees and remand the case to the trial court to address the relevant factors in determining 

the reasonableness of the attorney fees requested by plaintiff. We do not retain jurisdiction.

/s/ Mark T. Boonstra 

/s/ Stephen L. Borrello 

/s/ Michelle M. Rick