Preview:

STATE OF MICHIGAN COURT OF APPEALS

JOANN SPARKS, Plaintiff-Appellant, v CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellee.

UNPUBLISHED May 25, 2010

No. 289395 Genesee Circuit Court LC No. 07-087473

Before: METER, P.J., and MURRAY and BECKERING, JJ. PER CURIAM. Plaintiff appeals the trial court's order partially granting defendant's motion for summary disposition with respect to plaintiff's claim for excess work-loss benefits. This Court initially denied plaintiff's interlocutory application for leave to appeal, Sparks v Citizens Ins Co of America, unpublished order of the Court of Appeals, entered May 6, 2009 (Docket No. 289395), but our Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court "for consideration as on leave granted." Sparks v Citizens Ins Co of America, 485 Mich 962; 774 NW2d 688 (2009). Because we conclude that there is a genuine issue of material fact whether plaintiff suffered an actual loss of earnings because of her injury, we reverse the trial court's order in part and remand for further proceedings. We review a trial court's summary disposition decision de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Defendant moved for summary disposition of plaintiff's work-loss claim under both MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (no genuine issue of material fact). Although the trial court did not specify the subrule under which it granted defendant's motion, it accepted defendant's argument, which was based on evidence outside the pleadings. Therefore, the trial court's decision is appropriately reviewed under MCR 2.116(C)(10). Steward v Panek, 251 Mich App 546, 554-555; 652 NW2d 232 (2002). Summary disposition may be granted under MCR 2.116(C)(10) when "there is no genuine issue of material fact and the moving party is entitled to judgment . . . as a matter of law." Id. at 555. Section 3107 of the no-fault act, MCL 500.3107, provides, in relevant part: (1) Except as provided in subsection (2), personal protection insurance benefits are payable for the following:

-1-

*** (b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured. It is well established that a claim for loss of earning capacity is not recoverable under the no-fault act. Ouellette v Kenealy, 424 Mich 83, 87-88; 378 NW2d 470 (1985). Only damages for "actual `loss of income an injured person would have performed' if he had not been injured" are recoverable. Id. at 87. A claim for work-loss benefits is based on a claimant's loss of income from work the claimant would have performed if she had not been injured. MCL 500.3107(1)(b); Marquis v Hartford Accident & Indemity Co (After Remand), 444 Mich 638, 647; 513 NW2d 799 (1994). Contrary to defendant's contention, a person who is unemployed at the time of an accident may be able to prove that she would have earned wages but for the injury. In Marquis, 444 Mich at 645, Ouellette, 424 Mich at 86-87, and MacDonald v State Farm Mut Ins Co, 419 Mich 146, 151; 350 NW2d 233 (1984), our Supreme Court quoted with approval the drafter's comments to the Uniform Motor Vehicle Accident Reparations Act on which this state's no-fault act is modeled. The Supreme Court's comments recognize that work loss "`covers only actual loss of earnings as contrasted to loss of earning capacity.'" Ouellette, 424 Mich at 86-87, quoting Drafters comments to

Download JOANN SPARKS V CITIZENS INSURANCE CO.pdf

Michigan Law