November 8, 2018, Introduced by Senator SHIRKEY and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
(MCL 600.101 to 600.9947) by adding section 2443.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2443. (1) Except as otherwise provided by law or agreed
to by the parties, in a civil action, the court shall award the
prevailing party attorney fees as calculated under this section.
(2) If a money judgment is entered for a party in a civil
action, the court shall award attorney fees to the party based on
the amount of the judgment, including any prejudgment interest
awarded, as follows:
(a) If the action was contested and a trial was held:
(i) If the amount is $25,000.00 or less, 20% of the amount.
(ii) If the amount is more than $25,000.00, $5,000.00 plus 10%
of the amount that exceeds $25,000.00.
(b) If the action was contested but a trial was not held:
(i) If the amount is $25,000.00 or less, 18% of the amount.
(ii) If the amount is $100,000.00 or less but more than
$25,000.00, $4,500.00 plus 8% of the amount that exceeds
$25,000.00.
(iii) If the amount is $500,000.00 or less but more than
$100,000.00, $10,500.00 plus 6% of the amount that exceeds
$100,000.00.
(iv) If the amount is more than $500,000.00, $34,500.00 plus
2% of the amount that exceeds $500,000.00.
(c) If the action was not contested:
(i) If the amount is $25,000.00 or less, 10% of the amount.
(ii) If the amount is $100,000.00 or less but more than
$25,000.00, $2,500.00 plus 3% of the amount that exceeds
$25,000.00.
(iii) If the amount is $500,000.00 or less but more than
$100,000.00, $4,750.00 plus 2% of the amount that exceeds
$100,000.00.
(iv) If the amount is more than $500,000.00, $12,750.00 plus
1% of the amount that exceeds $500,000.00.
(3) If a money judgment is not entered for the prevailing
party in a civil action, the court shall award the prevailing party
30% of the prevailing party's reasonable actual attorney fees that
were necessarily incurred if a trial was held or 20% of the
prevailing party's actual attorney fees that were necessarily
incurred if a trial was not held. The actual fees must include fees
for legal work customarily performed by an attorney but that was
delegated to and performed by an investigator, paralegal, or law
clerk.
(4) On entry of judgment by default, a plaintiff is entitled
to an attorney fee award calculated under subsection (2) or the
plaintiff's reasonable actual attorney fees that were necessarily
incurred, whichever is less. The actual fees must include fees for
legal work customarily performed by an attorney but that was
delegated to and performed by an investigator, paralegal, or law
clerk.
(5) A court may vary an attorney fee award calculated under
this section if, on consideration of all of the factors listed in
this subsection, the court determines that a variation is
warranted. If the court decides to vary an award, the court shall
state the reasons for the variation on the record or in a written
opinion or order. The factors that the court may consider under
this subsection are the following:
(a) The complexity of the litigation.
(b) The length of trial.
(c) The reasonableness of the hourly rates and the number of
hours expended.
(d) The reasonableness of the number of attorneys used.
(e) The attorney's efforts to minimize fees.
(f) The reasonableness of the claims and defenses pursued by
each side.
(g) Any vexatious or bad-faith conduct.
(h) The relationship between the amount of work performed and
the significance of the matters at stake.
(i) The extent to which a given fee award may be so onerous to
the nonprevailing party that it would deter similarly situated
litigants from the voluntary use of the courts.
(j) The extent to which the fees incurred by the prevailing
party suggest that they were influenced by considerations apart
from the litigation of this action, such as a desire to discourage
claims by others against the prevailing party or its insurer.
(k) Other equitable factors that the court considers relevant.
(6) A motion for an award of attorney fees under this section
must be filed within 10 days after the date the judgment is
entered. Failure to file the motion within 10 days, or within any
additional time allowed by the court, is a waiver of the right to
recover attorney fees under this section. A motion for attorney
fees in a default case must specify the amount of the actual fees
incurred.
(7) If damages in an action are apportioned among the parties
under sections 2925a to 2925d, the attorney fees awarded to a
prevailing party under this section must also be apportioned among
the parties according to their respective pro rata shares of
liability.
(8) The allowance of attorney fees by a court under this
section does not affect the obligation to pay or the right to
collect fees between an attorney and a client.
(9) This section does not apply to an action brought in the
small claims division of the district court, unless the action is
removed from the small claims division.