Hicks v. Automobile Club Insurance

Michael J. Kelly, P.J. This case involves application of the priority provision of the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Section 3114 of the act, MCL 500.3114; MSA 24.13114, in relevant part, requires an injured person to first seek benefits from the insurer of a relative domiciled in the same household before seeking benefits from the insurer of the owner of the vehicle occupied at the time of the injury. In this case, plaintiff was injured while alighting from a vehicle owned by Cecil McMillan. Plaintiff, who was uninsured, filed suit against Automobile Club Insurance Association, her son’s insurer, and Wolverine Mutual Insurance Company, McMillan’s insurer. Auto Club then filed a cross-complaint against Wolverine Mutual, seeking reimbursement for any benefits Auto Club might eventually pay to plaintiff. The parties later entered into an agreement whereby Auto Club was to compensate plaintiff and thereafter seek reimbursement from Wolverine Mutual. Plaintiffs complaint was dismissed, and the case proceeded between Auto Club and Wolverine Mutual, with the [422] only issue being which insurance company had priority to pay plaintiffs claim. Following a bench trial, the trial court ruled that plaintiff and her son, Donald Hicks, were not domiciled in the same household at the time of the injury. Judgment was entered in Auto Club’s favor for $18,497.90 as follows: $13,492.88 for benefits paid to plaintiff; $1,040 for fees paid to plaintiff’s attorneys; $3,861.02 for Auto Club’s attorney fees; and $104 for costs. Wolverine Mutual appeals as of right, raising two issues. The first issue presented is whether the trial court erred in finding that plaintiff and her son were not domiciled in the same household. We find no error. The determination of domicile is a question of fact for the trial court and will not be reversed unless the evidence clearly preponderates in the opposite direction. Dobson v Maki, 184 Mich App 244, 253; 457 NW2d 132 (1990). The evidence adduced at trial established that plaintiff and McMillan purchased a house which was divided into two separate units, one upstairs and one downstairs. Plaintiff and McMillan lived in the lower unit, and Donald Hicks and his family occupied the upper unit. Each unit had its own living area, sleeping quarters, kitchen, and bathroom. The units had separate entrances, post office addresses, telephone lines, and electric bills. A "formal” agreement existed between plaintiff and her son whereby Donald paid plaintiff $200 per month in rent. Applying these facts to the factors enumerated by this Court in Dobson, supra, p 252 (citing Workman v DAIIE, 404 Mich 477; 274 NW2d 373 [1979], and Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675; 333 NW2d 322 [1983]), we cannot say that the evidence clearly [423] preponderates opposite to the trial court’s determination. The next issue raised is whether the trial court erred in awarding Auto Club attorney fees. We agree with Wolverine Mutual and find that Auto Club was not entitled to recover its own attorney fees under the no-fault act. Pursuant to the act, an attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal injury protection benefits which are overdue if the insurer unreasonably refuses to pay the claim or unreasonably delays in making payment. MCL 500.3148(1); MSA 24.13148(1). However, in this case, Auto Club did not advise or represent the claimant. Cf. Darnell v Auto-Owners Ins Co, 142 Mich App 1, 14-15; 369 NW2d 243 (1985). In any event, we do not find unreasonable Wolverine Mutual’s refusal to pay, because a bona fide factual uncertainty existed. See Bloemsma v Auto Club Ins Ass’n, 174 Mich App 692, 697; 436 NW2d 442 (1989). Auto Club is not entitled to attorney fees under the no-fault act. Auto Club alternatively argues that it is entitled to mediation sanctions. Because this issue was not addressed by the trial court, it having found that Auto Club was entitled to attorney fees under the no-fault act, we remand so that the trial court may address the issue. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.