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### STATE OF MICHIGAN

COURT OF APPEALS

SEFIKA ADEMI,

Plaintiff-Appellant, UNPUBLISHED June 25, 2015

v No. 319934 Kent Circuit Court STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and AMERISURE INSURANCE COMPANY, LC No. 12-002714-NF

Defendants-Appellees, and

LANCER INSURANCE COMPANY,

Defendant.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

.
In this no-fault insurance act ion involving survivor’s loss be nefits, plaintiff, Sefika Ademi, appeals as of right the order granting defendants 1 State Farm Mutual Automobile Insurance Company and Amerisure Insurance Company’s motion for involuntary dismissal on the issue of whether plaintiff was entitled to statutory penalt y interest and atto rney-fees under the no-fault act. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from the deathof plaintiff’s husband, Fadil Ademi, in a motor vehicle accident that occurred on April 9, 2011 in Texas. Fadil, a commercial truck driver, was driving his 2007 Volvo semi-truck at the time of the accident. Fadil p urchased the truck under an installment contract and leased the truck to Real-Trans, Inc., a company with which Fadil had signed an agreement for trucking services. Defendant Amerisure insured Real-Trans. Defendant

1 Plaintiff stipulated to dismiss her claims against defendant L ancer. Thus, Lancer is not designated as an appellee.-2- Lancer issued Fadil an insurance policy that was referred to as a “bob-tail policy,” which covered certain losses on Fadil’s truck when it was being used for non- business purposes. Defendant State Farm insured plaintiff’s automobile, a 2000 Pontiac Monta na minivan. Fadil was listed on the policy as a driver of the minivan but was not a named insur ed under the policy.

The record reveals that plaintiff submitted claims for benefit s with State Farm and Lancer in April 2011 and January 2012, re spectively. On March 21, 201 2, plaintiff filed a complaint against Amerisure, 2 State Farm, and Lancer, seeking personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq. , for funeral and burial expenses and survivor’s loss benefits. Plaintiff alleged that each of the defendants unreas onably refused to pay the benefits, and therefore, she was entitle d to attorney fees and penalty in terest under the no-fault act.

After filing her complaint, plaintiff provided defendants withvarious documents regarding Fadil’s income, including income tax returns for his trucking operation from 2009 and 2010, one of which showed an overall net loss of nearly $3,000. In July 2012, plaintiff submitted to defendants documents that the parties refer to as “paystubs” or “settlement sheets”; these documents purport to detail Fadil’s income from Real Tran s. As will be discussed in more detail infra , these reports are largely incomprehensible. In September 201 2, plaintiff provided defendants with a report prepared by a certified public account ing firm (CPA report) in which the accounting firm purported to calculate Fadil’s wage loss fo r three years after his death at $111,346. The report listed 17 different assumptions upon whic h the author of the report relied in making the determination. One involved an assumption about equipment rental fees as an expense, but the supporting documentation provided to the accou nting firm failed to explain these fees. Another assumption noted that there were costs “mi ssing” from the statement of detailed expenses for the 2010 tax year, and supposed, with no support, that the expenses may have been included elsewhere in the 2010 tax documents. Finall y, another assumption noted that certain information was missing with respect to expenses relati ng to a $10,000 loan payable to Real-Trans. The report expressl y stated that plaintiff’s couns el would have to secure more information about the loan and would need to make adjustments t o the figure provided accordingly.

On March 12, 2013, plaintiff moved the trial court for summary disposition under MCR 2.116(C)(10). Defendants argued that plaintiff failed to provi de reasonable proof of loss or amount of loss; they also argued that each of the other defenda nts had priority for coverage of any benefits that might be owed. In addition, Amerisure argued that it was not liable for funeral or burial costs because funeral be nefits were not PIP benefits under MCL 500.3107 at the time of Fadil’s death in 2011. Although MCL 500.3107 was amended effec tive January 2, 2013, Amerisure argued that the prior version of the statute controll ed in this case.

The trial court found that Ameri sure and Lancer were liable to pay plaintiff’s PIP benefits and that they shared priority sta tus for the payment of those b enefits. It denied plaintiff’s request for penalty interest and attorney fees, finding that there were insufficient facts to determine if

2 It appears from the record that plaintiff had not previously f iled a claim for benefits with Amerisure.-3- and/or when plaintiff provided reasonable proof of loss. The t rial court denied the motion for summary disposition for statutory interest and attorney fees as to all defendants—including State Farm. 3

In September 2013, plaintiff entered into a settlement agreeme nt with Lancer and Amerisure for PIP benefits; Lancer and Amerisure each paid half of the amount to plaintiff. On September 27, 2013, plaintiff moved the trial court once again for summary disposition on the issue of no-fault penalty intere st and attorney fees. She argu ed that there was no issue of material fact that Amerisure or Lancer or both owed plaintiff a ttorney fees and penalty interest, and that State Farm owed her attorney fees. She contended that each defendants’ failure to pay benefits was a result of their p riority dispute with each other , and not a result of her failure to provide reasonable proof of loss and amount of loss. Plaintiff believed that the tax returns she submitted sufficed for proof of loss, as did the CPA report.

In response, defendants argued that any delay in paying benefi ts was not the result of a priority dispute, but instead, was caused by plaintiff’s failur e to submit reasonable proof of loss and amount of loss. Concerning replacement services, defendant s argued that plaintiff failed to provide any proof that she ever i ncurred costs as a result of r eplacement services. In addition, they argued that the CPA report contained numerous assumptions and inaccuracies that prevented it from sufficing as reasonable proof of loss and amo unt of loss. For instance, the report failed to account for Fadi l’s tax rate, which was necess ary to calculate survivor’s loss benefits. In addition, defendants noted that the original repo rt took workers’ compensation insurance into consideration as a cost, while an updated CPA re port, prepared in July 2013, did not account for workers’ compensation insurance as an expense. Thus, defendants questioned the accuracy and validity of the reports. Amerisure, in respon ding to plaintiff’s motion for summary disposition, also noted that it sent plaintiff requests for interrogatories in June 2012 regarding workers’ compensation and benefits from secondary sou rces—which would be used to offset economic-loss benefits —and plaintiff failed to provide s igned responses to the request. 4

At a hearing on plaintiff’s motion, the trial court reasoned t hat plaintiff’s benefits could not become “overdue” under the no -fault act until plaintiff pre sented defendants with reasonable proof of loss and amount of loss. As such, the trial court tur ned to the issue of whether plaintiff presented such reasonable proof. Based on the documents presen ted, the trial court concluded that the record was insufficient to determine whether plaintiff presented reasonable proof of the amount of her loss; therefore, factual disputes remained as to whether payments for her benefits were overdue under the no-fault ac t. The trial court denied pl aintiff’s motion.

In November 2013, the matter proceeded to a bench trial. Kath leen Green, a former claims adjuster for Amerisure, testified that she initially bel ieved that Amerisure’s policy did not cover Fadil, given that he was not technically an employee of R eal-Trans. In September 2012,

3 Despite ruling that State Farm was not obligated to pay PIP be nefits, the trial c ourt nevertheless ruled that plaintiff could pursue State Farm for attorney fees under the no-fault act.

4 Plaintiff subsequently entered into a stipulation to dismiss h er remaining claims against Lancer.-4- Green sent plaintiff a request for information regarding replac ement services; plaintiff did not provide a response to this request until June 19, 2013, when sh e submitted a signed response to Amerisure’s second request for interrogatories. The response s tated that “[p]roof will be provided at trial through the testimony of the decedent’s widow .” Green also stated that plaintiff’s information about rep lacement services—which stated that Fadil was away from home for five to six days per week and that he did normal household chores—was not specific enough to establish reasonable proof of loss.

Regarding economic loss, Green t estified that she received the 2012 CPA report and 2013 amended report, but testified that she lacked information to substantiate certain assumptions made in the report. She was unable to calculate benefits from the report and subsequent amendment. She also testified that Fadil’s tax returns did notenable her to determine economicloss benefits in this case. For instance, they did not provide effective tax rates, nor did the CPA report. Regarding the “paystubs,” Green testified that they we re “just a bunch of numbers that I couldn’t interpret.” Further, she testified that, although pla intiff presented information regarding social security benefits, which are to be offset against PIP be nefits for survivor’s loss, were missing pages. As a result of the above, Green was unable to c alculate economic-loss benefits.

Dennis M. Echelbarger, a certif ied public accountant who works at the firm that produced the 2012 CPA report, testified th at the report was insufficient to provide reasonable proof of loss as to the amount of PIP benefits to which plaintiff was entitle d. He testified that plaintiff’s counsel did not ask his firm to do enough work to determine rea sonable proof of loss. For instance, his firm was not asked to factor plaintiff’s social s ecurity benefits into the amount of benefits claimed. Further, he testified that his firm lacked s ufficient information to calculate Fadil’s effective tax rates, and that his firm was not provided with information to determine the amount of Fadil’s expenses i n relation to t he $10,000 loan.

Concerning her claim for replacement services, plaintiff testi fied regarding Fadil’s work schedule and how often he was home, and estimated that Fadil wa s home five to six days per month, and that he took approxim ately two weeks of vacation per year. However, Fadil’s work schedule sometimes fluctuated. She did not hire anyone to perf orm any services after Fadil’s death. She also testified concerning the costs of Fadil’s fune ral; she sent receipts for the funeral and burial costs to each of the defendants in this case in 2013

. At the close of plaintiff’s case-in-chief, Amerisure moved for what it termed a “directed verdict.” 5 The trial court granted the m otion. With regard to funeral b enefits, the trial court found that defendants were not liable for statutory interest an d attorney fees because funeral and burial costs were not PIP benefits under MCL 500.3107 at the ti me of Fadil’s death. 6

5 In cases involving bench trials, such as the case at bar, a mo tion for a directed verdict is to be treated as a motion for involuntary dismissal pursuant to MCR 2 .504(B)(2). Stanton v Dachille

, 186 Mich App 247, 261; 463 NW2d 479 (1990) (“A motion for a dir ected verdict is more properly made in a jury trial, w hile a motion to dismiss is use d in a bench trial.”).

6 Before the trial court, plainti ff made no effort to argue that the amended version of MCL 500.3107 applied retroactively; she simply contended that the n ew version of the statute applied-5- Concerning replacement services , the trial court found that pla intiff failed to present evidence that someone else provided replacement services or that plainti ff incurred expenses for such services. Concerning economic-loss benefits, the trial court f ound that the 2012 CPA report and updated version of that report fa iled to provide reasonable pro of of the amount of loss. Notably, the court found that the reports lacked certain information and that Echelbarger testified that the reports were not intended to ser ve as proof of loss. The trial court entered judgment in favor of defendants.

Plaintiff now appeals as of right.

II. PLAINTIFF’S CLAIMS AS TO STATE FARM

As an initial matter, we find that there is no merit to any of plaintiff’s claims as they pertain to State Farm. The tri al court found that State Farm h ad no liability to plaintiff on her claim for benefits or overdue ben efits. As discussed in detail below, liability for statutory interest and attorney fees is pr edicated on benefits being over due. Because State Farm did not owe any benefits, it cannot be said that any benefits were over due. Frazier v Allstate Ins Co , 490 Mich 381, 387; 808 NW2d 450 (2011); Moore v Secura Ins , 482 Mich 507, 526-527; 759 NW2d 833 (2008) (rejecting the conclusion that it was possible for a n insurer to unreasonably refuse to pay benefits even when the insurer is later deemed not liable f or such benefits). We affirm the trial court’s rulings with regard to State Farm on this alterna tive ground. See Grand Trunk Western RR, Inc v Auto Warehousing Co , 262 Mich App 345, 354; 686 NW2d 756 (2004) (“This Court will not reverse an order of the trial court if the court reached the right result for the wrong reason.”). Thus, the remainder of our discussion will focus onplaintiff’s claims as to Amerisure.

III. SUMMARY DISPOSITION AS TO EC ONOMIC LOSS AND REPLACEMENT SERVICES

A. STANDARD OF REVIEW

Plaintiff argues that the trial court erred by denying her Sep tember 27, 2013 motion for summary disposition on the issue of whether Amerisure and State Farm were liable for attorney fees and statutory interest unde r the no-fault act. The trial court denied summary disposition pursuant to MCR 2.116(C)(10). We review de novo a trial court’ s decision regarding a motion for summary disposition. Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). We review a motion brought under MCR 2.116(C)(10) “by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there i s no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. (citations omitted).

in this case, without recognizing that a previous version of th e statute was in effect at the time of the accident at issue.-6- B. SURVIVOR’S LOSS BENEFITS

Under the no-fault act, “a PIP provider is liable ‘to pay bene fits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . . . .’ ” McPherson v McPherson , 493 Mich 294, 296-297; 831 NW2d 219 (2013), quoting MCL 500.3105(1). We first consider plaintiff’s claim f or survivor’s loss benefits in the form of economic loss and replacement services. 7 The no-fault act includes PIP benefits for survivors’ loss as follows:

(1) Except as provided in subsection (2), personal protection i nsurance benefits are payable for a survivor’s loss which consists of a loss, aft er the date on which the deceased died, of contributions of tangible things of econo mic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency f rom the deceased if the deceased had not suffered the accidental bodily injury c ausing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the decease d died in obtaining ordinary and necessary s ervices in lieu of those that the deceased would have performed for their benefit if the deceased had not suffer ed the injury causing death. Except as provided in section (2) the benefits payable for a survivors’ loss in connection withthe death of a person in a s ingle 30-day period shall not exceed $1,000.00 for accidents occurring before Octob er 1, 1978, and shall not exceed $1,475.00 for accidents occurring on or after October 1, 1978, and is not payable beyond the first three years after the date of the accident.

(2) The maximum payable shall be adjusted annually to reflect c hanges in the cost of living under rules prescrib ed by the commissioner. A change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum. The maximum shall apply to the aggregate benefits for all survivors paya ble under this section on accoun t of the death of any one person. [MCL 500.3108.]

Survivor’s loss benefits are composed of two elements: “(1) ec onomic loss . . . which is the loss of contributions of tangible things of economic value, not including services, and (2) replacement services costs . . . wh ich are the expenses, not ex ceeding $20 a day, reasonably incurred in replacing ordina ry and necessary services.” Wood v Auto-Owners Ins Co , 469 Mich 401, 404; 668 NW2d 353 (2003). The amount owed for economic-lo ss benefits must be offset against any benefits that are required to be provided by the la ws of this state or any other state or the federal government, such as Social Security benefits or wor kers’ compensation benefits. MCL 500.3109(1); Wood , 469 Mich at 404. Benefits for replacement services under § 3 108(1) are available only to the extent of the expenses that a depende nt incurred on replacement services. MCL 500.3108 (“[PIP] benefits are payable for expens es, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on

7 Plaintiff’s claim for funeral and burial expenses is discussed in Issue V, infra

.-7- which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit . . . .”) (emph asis added). A plaintiff seeking replacement services need not provide formal documentation of an agreement to pay for services; rather, a plaintiff need only establish that she incurred a liability. Fortier v Aetna Cas & Surety Co , 131 Mich App 784, 791; 346 NW2d 874 (1984). See also Richardson v Detroit Auto Inter-Ins Exch , 180 Mich App 704, 708-709; 447 NW2d 791 (1989).

C. PENALTY INTEREST AND ATTORNEY FEES

Here, the only issue plaintiff raises with regard to survivor’ s loss benefits is whether those benefits were overdue, whic h would entitle her to attorne y fees and statutory penalty interest under the no-fault ac t. Concerning attorney fees, MCL 500.3148(1) provides that:

(1) An attorney is entitled to a reasonable fee for advising an d representing a claimant in an action for personal or property protection insur ance 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 unr easonably refused to pay the claim or unreasonably dela yed in making proper payment.

PIP 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.” MCL 500.3142 (2). See also Moore , 482 Mich at 517.

Thus, the no-fault act establishes two prerequisites for an aw ard of attorney fees under
act. Brown v Home-Owners Ins Co , 298 Mich App 678, 690; 828 NW2d 400 (2012).

First, the benefits must be overdue, meaning “not paid within 3 0 days after [the] insurer receives reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2). Second, in postjudgment proceedin gs, the trial court must find that the insurer “unreasonably refused to pay t he claim or unreasonably delayed in making proper payment.” MCL 500.3148(1 ). [ Moore
, 482 Mich at 517.]

Regarding penalty interest, MCL 500.3142(3) provides that “[a] n overdue payment bears simple interest at the rate of 12% per annum.” A benefit is ov erdue only after the insurer receives reasonable proof of the fact and of the amount of loss sustained. MCL 500.3142(2); Moore , 482 Mich at 517. An award of pena lty interest only requires reasonable proof of loss; the insurer’s motive for denyi ng payment is irrelevant. Nasser v Auto Club Ins Ass’n , 435 Mich 33, 68-69; 457 NW2d 637 (1990); Morales v State Farm , 279 Mich App 720, 730; 761 NW2d 454 (2008) (“Penalty interest must be assessed against a no-fault i nsurer 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.”) (citation and quotation omitted ).

As an initial matter, we note th at plaintiff describes this ca se as a priority dispute amongst insurers, and argues that Amerisu re’s initial refusal to pay be nefits was caused by a priority dispute. She contends that a priority dispute among insurers i s not a valid reason for denying benefits. On this point, we agree with plaintiff. See Karmol v Encompass Prop & Cas Co , 293 Mich App 382, 391; 809 NW2d 631 (2011). However, we do not endour analysis of this issue-8- here, as plaintiff would have u s do. Rather, contrary to plain tiff’s contentions, we emphasize that the insured’s presentati on of reasonable proof of loss and of the amount of loss is a prerequisite to the insured incurring liability for both penalt y interest and attorney fees. See Moore , 482 Mich at 510-511, 517; Roberts v Farmers Ins Exch , 275 Mich App 58, 67; 737 NW2d 332 (2007) (“Benefits are overdue if they are not paid wit hin 30 days after the insurer receives reasonable proof of the fact and amount of the loss su stained.”). Thus, if, as the trial court found, plaintiff failed to present reasonable proof of th e amount of loss, there can be no liability for attorney fees or penalty interest. And, any prio rity dispute between Amerisure and the other defendants in this case would not excuse plaintiff’s responsibility to present such reasonable proof. Benefits could not be “overdue” under the no -fault act without such reasonable proof of loss a nd of the amount of loss. See Moore , 482 Mich at 510-511, 517.

Presenting “reasonable proof” of loss and of the amount of los s does not mean that plaintiff was required to prese nt exact proof of the amount of the loss sustained. Williams v AAA Michigan , 250 Mich App 249, 267, 264; 646 NW2d 476 (2002). Reasonable proof of loss requires different types of info rmation depending on the benefi t sought. Cruz v State Farm Mut Auto Ins Co , 466 Mich 588, 596; 648 NW2d 591 (2002). Plaintiff, as the cl aimant, bore the burden of supplying reasonable pr oof of loss and proof of amoun t of loss. Moore , 482 Mich at 523. Here, there was never a dis pute as to the loss; the only dispute was as to the amount of loss and whether plaintiff presen ted reasonable proof thereof.

D. APPLICATION

We conclude that the trial court did not err in finding that t here was a genuine issue of material fact concerning whether plaintiff presented reasonable proof of loss at the time of the hearing on her September 27, 2013 motion for summary dispositio n.
As to economic loss, summary disposition in plaintiff’s favor was not appropriate as she failed to demonstrate that there was no genuine issue of materi al fact concerning reasonable proof of the amount of economic loss. Plaintiff presented Amer isure with a series of documentary evidence, each of which either raised questions abo ut the document itself or rendered questionable other documents that plaintiff submitted. For instance, plaintiff’s answers to Amerisure’s interrogatories, a signed copy of which was not filed until a year after such responses were sought, failed to specify the amount of social s ecurity benefits. This amount was necessary for determining the amount the benefits should be off set. More significantly, the documentary evidence revealed questions of fact about the amoun t purportedly sought by plaintiff. Plaintiff first submitted tax returns and the ambig uous “paystubs.” The tax returns that plaintiff submitted as proof of the amount of the economic loss showed that Fadil operated at a net loss of nearly $3,000 in 2010. In addition, the “paystubs” plaintiff submitted as support for the amount sought were largely i ndecipherable. They contained numerous deductions and figures that were not explained in any fashion. As one example of the uncertainty of the “paystubs,” we note that the documents showed what appeared to be a year-to-date pay, as suggested by a “YTD” designatio n, decreasing from one week to t he next, despite what purported to be a payment of ove r $600 to plaintiff for a parti cular week. Plaintiff provided no explanation for these paystubs.-9- After submitting the tax returns and paystubs—which never spec ified an amount that plaintiff sought—plaintiff submitted the 2012 CPA report. 8 The CPA report c ontained numerous assumptions, some of which could have potentially had a signifi cant effect on the amount sought by plaintiff. As noted, some of those assumptions were made wi th no supporting evidence. Green testified at her deposition that these assumptions gave h er pause in evaluating plaintiff’s claim. The CPA report also expressly stated that it was incomp lete, based on missing information about the loan and ex penses associated therewith. The report stated that plaintiff’s counsel would need to update the amount sought after more infor mation was discovered about the loan amount. In addition, the amount sought in the report was rendered questionable in light of the documents plaintiff previously submitted, such as the 20 10 tax return that showed that Fadil’s trucking business operate d at a net loss of approximate ly $3,000.

In sum, there were significant questions concerning Fadil’s in come and tax information, as well as any potential offset for Social Security benefits; t his information was necessary for a determination of economic benefits under MCL 500.3108. See Wood , 469 Mich at 404-406; Miller v State Farm Mut Auto Ins Co , 410 Mich 538, 564-565; 302 NW2d 537 (1981). These unanswered questions about perti nent financial information leftquestions of fact as to the issue of whether plaintiff presented reasonable proof of the amount o f the loss. The trial court did not err when it declined to grant summary disposition to plaintiff in light of the uncertainty noted above. See Latham , 480 Mich at 111.

Likewise, with respect to replacement services and whether pla intiff presented reasonable proof of the amount of loss, the trial court did not err in den ying summary disposition to plaintiff. Plaintiff’s documenta ry evidence revealed conflicti ng evidence regarding the number of days that Fadil was home in a typical month. And, significantly, while plaintiff alleged that Fadil performed services around the house when he was home, she failed to allege that she incurred any expenses for replacement services. See Fortier , 131 Mich App at 791. Plaintiff’s deposition testimony gave no indication that she incurred any e xpenses for replacement services. Nor did her answers to Amerisure’s interrogatories. In fact, p laintiff’s counsel stated at one point, “[p]roof will be provided at trialthrough the testimony of the decedent’s widow.” Furthermore, though plaintiff argues that Amerisure should have done further investigation to obtain reasonable proof, such a duty for an insurer does not ex ist unless the insurer has already been provided with reasonable proof of loss and amount of loss and that insurer wishes to challenge the proof provided. See Williams , 250 Mich App at 267 (stating that if the insurer had wanted to challenge the amount alleged by the insured, the insu rer “could have and should have conducted some investigation of its own during the thirty-day l egislative grace period to establish a lesser amount of uncoordinated benefits owed.”). I n light of the conflicting documentary evidence and uncertainty, summary disposition was n ot appropriate. See Latham

, 480 Mich at 111.

8 She also submitted the 2013 report, which was largely the same as the initial report.-10- IV. INVOLUNTARY DISMISSAL AS TO EC ONOMIC LOSS AND REPLACEMENT SERVICES

A. STANDARD OF REVIEW

Next, plaintiff argues that even if she was not entitled to su mmary disposition with regard to her request for attorney fees and statutory interest on her claim for survivor’s loss benefits under MCL 500.3108, the trial court erred by granting Amerisure ’s motion for involuntary dismissal. This Court reviews a trial court’s decision regardi ng a motion for involuntary dismissal for clear error. 9 Phillips v Deihm , 213 Mich App 389, 397; 541 NW2d 566 (1995). We also review for clear error a trial court’s finding whether a communication qualified as a reasonable proof of the fact or amount of loss. Williams , 250 Mich App at 265. “The clear-error standard requires us to give deference to the lower court and f ind clear error only if we are nevertheless left with the definit e and firm conviction that a mistake has been made.” Arbor Farms, LLC v GeoStar Corp , 305 Mich App 374, 386-387; 853 NW2d 421 (2014) (citation and quotation marks omitted).

B. REASONABLE PROOF OF ECONOMIC LOSS

The trial court did not clearly err when it found that plainti ff failed to present reasonable proof of the amount of economic loss. As noted above in the di scussion about summary disposition, although the 2012 CPA report contained a specific dollar amount, the documentary evidence—including the CPA report itself—showed ample reason to doubt that amount. The CPA report itself contained several caveats and assumptions. A s noted, some of those assumptions were inconsistent with the documentary evidence pla intiff presented. Further, the CPA report itself stated that it had to be updated after more i nformation was gathered by plaintiff’s counsel concerning th e amount left on Fadil’s loan and expenses associated therewith. And, significantly, Echelbarger te stified at trial that his firm was not hired to calculate and provide reasonable proof as to the amount of PIP benefits to wh ich plaintiff was entitled. According to Echelbarger, plain tiff did not provide his firm wi th enough information to make the necessary calculations. He also testified that Fadil’s 2011 ta x return did not account for the $66,000 of revenue that purported to appear on the paystubs fro m Real-Trans; these paystubs were nearly indecipherable, give n their lack of explanation for any of the figures or deductions noted therein. Plaintiff faile d to present testimony to explai n the paystubs.

In addition, Green testified at trial that she was unable to c alculate economic benefits from any of the information that plaintiff gave her. Green als o testified that Fadil’s tax returns

9 In reviewing this issue, the tri al court, treating Amerisure’s request as a request for a directed verdict, reviewed the evidence i n a light most favorable to pla intiff, the non-moving party. The trial court was not required to view the evidence in such a lig ht. Rather, “[t]he involuntary dismissal of an action is appropriate where the trial court, wh en sitting as the finder of fact, is satisfied at the close of the pla intiff’s evidence that ‘on the facts and the law the plaintiff has shown no right to relief.’ ” Samuel D Begola Servs, Inc v Wild Bros , 210 Mich App 636, 639; 534 NW2d 217 (1995).-11- showed conflicting information regarding workers’ compensation expenses. She also noted some of the missing information from the 2012 CPA report and th e ambiguity in the Real-Trans paystubs. Plaintiff’s informati on regarding Social Security be nefits was missing pages, and such information was necessary to determine whether an offset was ap propriate. So too was information regarding Fadil’s e ffective tax rat es, and plaintif f never supplied such information.

In sum, although reasonable proof need not be exact proof, we cannot conclude that the trial court, when viewing the to tality of the evidence, clearly erred in finding that plaintiff failed to present reasonable proof of the amount of the economic loss claimed. See Williams , 250 Mich App at 267. Plaintiff only presented one document—the CPA repo rt—that provided a definitive amount of benefits she claimed. The amount listed was rendered questionable in light of the numerous assumptions—some of which were taken without any suppo rt in accompanying documentary evidence. The CPA report itself stated that the am ount needed to be updated, and Echelbarger testified that the r eport and amount set forth ther ein were never intended to be reasonable proof of the amount o f plaintiff’s economic loss. F urther, the report was rendered suspect in light of other documentary evidence plaintiff submit ted, such as Fadil’s tax returns and the ambiguous “paystubs.” The totality of the deficiencies in the documents produced by plaintiff and of the testimony at trial leads us to conclude th at the trial court did not clearly err in finding that plaintiff failed t o produce reasonable proof of th e amount of economic loss. Because she failed to present reasonable proof of the amount of her los s, she was not entitled to statutory interest or attorney fees under the no-fault act, as no benefit s could become “overdue” without reasonable proof of loss. Moore , 482 Mich at 510-511, quoting MCL 500.3142(2) (holding that under the no-fault act, PIP benefits “become ‘overdue’ when an insurer fails to pay ‘within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.’”).

C. REASONABLE PROOF OF REPLACEMENT SERVICES

In addition, the trial court d id not clearly err in finding th at plaintiff failed to present reasonable proof of her replacement services. Again, plaintiff failed to present evidence that she incurred any expenses. See Fortier , 131 Mich App at 791. See also Douglas v Allstate Ins Co

, 492 Mich 241, 267-270; 821 NW2d 472 (2012) (holding that expens es must be incurred before an insurer becomes liable to pay them). The documentary eviden ce plaintiff provided was inconsistent with regard to the number of days that Fadil was g one, was not specific as to the services he performed, and it pro vided no indication that plain tiff incurred any expenses. Plaintiff’s trial testimony similarly failed to indicate any expenses that were incurred. In sum, there is no evidence that Amerisure was ever provided with evid ence of expenses plaintiff incurred in obtaining replacement services. The trial court di d not clearly err in finding that there was no reasonable proof of loss for replacement services. See Arbor Farms, LLC , 305 Mich App at 386-387. Accordingly, plaintiff could not show tha t any benefits for replacement services were overdue, and Amerisure was entitled to involuntar y dismissal as to plaintiff’s request for statutory interest and attorney fees under the no-f ault act. See Moore , 482 Mich at 510-511.

V. FUNERAL AND BURIAL EXPENSES

Lastly, we address plaintiff’s claims concerning funeral and b urial expenses. MCL 500.3107 concerns funeral and burial expenses. Unlike her clai ms for economic losses and-12- replacement services, plaintiff provided proof of her funeral e xpenses, as she submitted funeral receipts to Amerisure in March 2013. The trial court concluded that plaintiff could not maintain a claim for attorney fees and statutory interest under the no-f ault act in relation to the funeral and burial expenses because, at the t ime of Fadil’s accident, such expenses were not considered to be within the ambit of PIP benefits under MCL 500.3107. As discus sed in more detail below, the statute was amended after plaint iff filed her complaint in this case. Plaintiff argued before the trial court, without recognizing that there was a potential pro blem with retroactivity, 10 that the amended statute should apply. On appeal, she argues that the a mended version of the statute should apply retroactively, and that under the amended version of the statute, funeral and burial expenses were overdue, and that she is entitled to statutory in terest and attorney fees as a result.

A. STANDARD OF REVIEW

Because plaintiff did not preserve this argument for appeal an d the trial court was not asked to rule on the matter, we will address the matter for pla in error affecting substantial rights. Richard v Schneiderman & Sherman, PC (On Remand) , 297 Mich App 271, 273; 824 NW2d 573 (2012). “Plain error occurs at th e trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the o utcome of the lower court proceedings.” Id. (quotation omitted).

B. FUNERAL AND BURIAL BE NEFITS UNDER MCL 500.3107(1)

At the time of Fadil’s death in 2011, MCL 500.3107(1)(a) delin eated certain “allowable expenses” that could be recovered as PIP benefits. Concerning funeral and burial expenses, MCL 500.3107(1)(a) provided that: “[ a]llowable expenses within personal protection insurance coverage shall not include . . . f uneral and burial expenses in the amount set forth in the policy which shall not be less t han $1,750.00 or more than $5,000.00.” In Wood v Auto-Owners Ins Co

, 252 Mich App 87, 93; 651 NW2d 118 (2002), aff’d in part and rev ersed in part 469 Mich 401 (2003), this Court interpreted MCL 500.3107(1)(a) to mean that funeral and burial expenses under an insurance policy were not PIP benefits. In particular , we stated that “[t]he clear and unambiguous language of § 3107 establishes that the funeral and burial expenses benefit under an insurance policy is not personal protection insurance covera ge.” Id. Our Supreme Court subsequently affirmed this Court’s opinion in Wood in part and reversed in part. See Wood , 469 Mich 401. Of note, the Supreme Court expressly affirmed this C ourt’s holding that funeral and burial expenses were not PIP ben efits under the then-existing v ersion of MCL 500.3107(1)(a). Id. at 402 n 1 (“In particular, we affirm the judgment of the Cour t of Appeals concerning funeral benefits under MCL 500.3107.”).

In 2012 PA 542, the Legislature amended MCL 500.3107(1). The amendment was effective January 2, 2013. See 2012 PA 542. The amendment mad e no mention of retroactivity. Among the changes made, the statute now provides that “[a]llowa ble expenses within personal

10 Indeed, she made no argument that the amended version of the s tatute should apply retroactively. She simply cite d the current version of the sta tute and asked for attorney fees and statutory interest.-13- protection insurance covera ge shall not include . . . ( ii ) [f]uneral and burial expenses in excess of the amount set forth in the policy which shall not be less t han $1,750.00 or more than $5,000.00.” MCL 500.3107(1)(a)( ii ) (emphasis added). Unlike the prior version of the statute, the current version now states that funeral and burial expenses are within PIP coverage, so long as those expenses are not in excess “of the amount set forth in the policy which shall not be less than $1,750.00 or more than $5,000.00.” Thus, under the curren t version of the statute, plaintiff could recover funeral and burial costs, within certain paramete rs, as PIP benefits. To determine whether those benefits were “overdue” under the no-fault act, w e must decide whether the amended statute applies retroa ctively. If the statute does not apply retroactively, funeral and burial costs would not be PIP benefits in this case, and the no n-payment of such benefits would not subject Amerisure to statuto ry interest and attorney fees u nder the no-fault act.

C. THE AMENDMENT TO MCL 500.3107(1) DOES NOT APPLY RETROACTIVE LY

We find that the amended version of the statute does not apply retroactively, meaning that there were no benefits that were overdue, and that any ref usal to pay was not unreasonable.

In determining whether a statut e should be applied retroactive ly, “the primary and overriding rule is that legisla tive intent gove rns. All other rules of constructi on and operation are subservient to this principle.” Frank W Lynch & Co v Flex Technologies, Inc , 463 Mich 578, 583; 624 NW2d 180 (2001) (citation and quotation marks omitted)

. Statutes are presumed to apply pr ospectively unless the Legisla ture clearly manifests the intent for retroactive application. This is espe cially true when giving a statute retroactive operation will . . . create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute was passed. Further, [e]ven if the Legislature acts to invalidate a prior decision of this Court, the amendment is limited to prospective application if it enacts a substantive change in the law. [ Johnson v Pastoriza , 491 Mich 417, 429; 818 NW2d 279 (2012) (citations and quotation marks omitted; alt eration in original).]

Further, when the Legislature prov ides a specific, future effec tive date and omits any reference to retroactivity, such reference s upports the conclusion that the statute applies prospectively only. Id. at 432.

Nevertheless, our Supreme Court has recognized an exception to the presumption against retroactivity for certain “remedial statutes,” or “statutes whi ch operate in furtherance of a remedy or mode of procedure and which neither create new rights nor de stroy, enlarge, or diminish existing rights are generally held to operate retrospectively unless a contrary legislative intent is manifested.” Id. at 432-433, quoting Lynch & Co , 463 Mich at 584. Simply calling a statute “remedial,” however, does not s upport a finding of retroactivit y. Id. Instead, the term “remedial” “in this context should only be employed to describe legislation that does not affect substantive rights. Otherwise, [t]he mere fact that a statute is characterized as ‘remedial’ . . . is of little value in statutory construction.” Lynch & Co , 463 Mich at 585 (citation and quotation marks omitted; alteration in original). See also Johnson , 491 Mich at 433.-14- Although the no-fault act has beencharacterized as remedial i n nature, see, e.g., Gobler v Auto-Owners Ins Co , 428 Mich 51, 61; 404 NW2d 199 (1987), we find that the amendm ent to § 3107(1) should not apply retroactively. Applying the amended version of § 3107(1) retroactively would affect subs tantial rights. Namely, it woul d create a new cause of action for statutory interest and attorney fees under the no-fault act whe re such a cause of action did not previously exist. See Johnson , 491 Mich at 433-434 (declining to apply a statute retroactive ly where it affected substantial rights by creating a cause of act ion where one did not previously exist). Accordingly, we decline to apply the amended version o f § 3107(1) retroactively. See id. See also Lynch & Co , 463 Mich at 586.

In reaching this conclusion, we reject plaintiff’s assertion t hat we should find in favor of retroactivity because the amendment of § 3107(1) was intended, according to plaintiff, to correct a mistake in the law. Cf. Mackinac Bridge Auth v Silicosis, Dust Disease, and Logging Indus Compensation Fund , 208 Mich App 460, 465-466; 529 NW2d 315 (1995) (finding in fa vor of retroactivity where the statute at issue was intended to remedya past error of law). Here, the version of § 3107(1) that was in effect at the time of Fadil’s accident had been in effect for 20 years. And, we note that the Legislature is presumed to act wi th knowledge of judicial interpretations. Van Buren Twp v Garter Belt, Inc , 258 Mich App 594, 606-607; 673 NW2d 111 (2003). Thus, the Legislature is presumed to be aware of this Court’s decision in Wood and— our Supreme Court’s express affi rmation of that decision with r egard to funeral and burial costs—when it amended § 3107(1). Despite such knowledge, the L egislature made no mention of retroactivity when it amended the statute. The intent of th e Legislature is to govern, see Lynch , 463 Mich at 585, and we find that there is no clear expressio n of Legislative intent concerning retroactivity.

In sum, we find that the amended version of § 3107(1) does not apply retroactively, meaning that funeral and burial costs were not to be considered PIP benefits in this case, in accordance with our decision in Wood , 252 Mich App at 92-93. As such, there could be no PIP benefits that were overdue, meaning that there could be no stat utory interest or attorney fees premised on overdue PIP benefits. Furthermore, with regard to attorney fees, which requires an inquiry into whether the decision to deny benefits was reasonab le, “[a]n insurer may justify its refusal to pay a claimant benefits by showing that the claim pr esented a legitimate question of statutory construction, constitutional law, or factual uncertai nty.” Johnson , 298 Mich App at 691. See also Rice v Auto Club Ins Ass’n , 252 Mich App 25, 39; 651 NW2d 188 (2002) (holding that the insurer did not act unr easonably where there was a leg itimate question about the statutory requirements in that case). Here, there was a legiti mate question concerning whether the amended version of § 3107(1) applied retroactively. Theref ore, even if the statute applied retroactively—which we conclude it does not—plaintiff would not be entitled to attorney fees in this case. See Johnson , 298 Mich App at 691; Rice , 252 Mich App at 39. See also Tevis v Amex Assurance Co , 283 Mich App 76, 89-90; 770 NW2d 16 (2009) (holding that the insurer’s initial denial of PIP benefits was not unreasonable where the pertinent law was “often subject to dispute and not entirely resolved . . . .”).

Affirmed.

/s/ Jane M. Beckering /s/ Jane E. Markey