Michigan Court of Appeals; Docket #s 339980; 341473; Unpublished
Judges Swartzle, Markey, and Ronayne Krause; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unpublished majority per curiam decision (Justice Ronayne Krause, concurring) involving a claim for work-loss benefits, the Court of Appeals upheld the trial court’s summary disposition order dismissing the plaintiff’s complaint because the Plaintiff failed to present sufficient evidence that she was employed at the time of her accident, as is required under MCL 500.3101 in order to be eligible for work-loss benefits.
Williams worked for Rainbow International Restoration intermittently in an on-call capacity briefly in 2015 and 2016 She was offered a full-time job, which she verbally accepted, but no formal agreement between Williams and Rainbow was ever reached. Williams “never completed an employment application with rainbow, did not receive paychecks from the company, did not report the cash she received from Rainbow as income, and . . . Rainbow neither withheld taxes from her cash payments nor provided her with any documents relating to taxes.” Moreover:
[Rainbow] characterized plaintiff as a temporary employee whom he paid in cash. He testified that plaintiff did not apply for employment, was never interviewed or put through a background check, did not receive a formal offer of part- or full-time employment, was issued no tax forms, was not in the company’s payroll system, and did not receive a uniform. He further explained that the company kept no personnel file or other record relating to her temporary employment. [Rainbow] noted that the company neither paid unemployment insurance for plaintiff nor withheld taxes from her payments.
In April 2016, Rainbow’s office manager wrote a letter regarding plaintiff’s employment status before her accident, stating as follows:
[Plaintiff] served as a temporary employee for Rainbow International of Brighton from 1/12/16 to 1/15/16. During this time, [plaintiff] worked 35.5 hours at the rate of $12.00 per hour. She was also scheduled to work the following week 1/18-1/22 and was being considered for part-time/as needed employment for future work.
A form attached to the letter indicated, under “employment status,” that plaintiff was “temporarily employed” from January 12, 2016 to January 15, 2016, and indicated “n/a” under official job description.
[Rainbow] additionally testified that, shortly before the auto accident, plaintiff obtained his permission to borrow a company car with a precise understanding of when it would be returned, but that plaintiff failed to return the car when promised. [Rainbow] testified that, because of plaintiff’s failure to return the company car as instructed, he resolved not to hire plaintiff for any further work.
Williams thus filed a lawsuit against the insurer of the vehicle she was traveling in at the time of the accident, as well as the insurer of the vehicles owned by her mother, seeking wage-loss benefits. The trial court dismissed her claim for work-loss benefits, because “the plaintiff failed to offer sufficient evidence to create a genuine issue of material fact whether the injuries resulting from her auto accident caused her to suffer any work loss for purposes of benefits under the no-fault act.”
The Court of Appeals affirmed the trial court’s order dismissing Williams’s claims for work-loss benefits, finding that “the circumstances of plaintiff’s work with Rainbow were not compatible with her having the status of a company employee. Further, the only evidence to counter [Rainbow’s] unequivocal testimony that [it] had firmly decided against engaging platintiff further, for reasons unrelated to the accident, was plaintiff’s own speculative and wishful testimony.”
The Court further stated: Further, to the extent that plaintiff seeks work-loss benefits to cover income she might have earned, from either Rainbow or any other potential employer, had her injuries not prevented her from acting on potential employment opportunities, she is erroneously conflating work loss with loss of earning capacity. In a no-fault case concerned with the proper basis for damages, our Supreme Court took pains to observe the distinction, stating: “[D]amages for work loss consist of wages that a person ‘would’ have earned but for the accident, whereas loss-of-earning- capacity damages are wages a person ‘could’ have earned but for the accident.” Hannay v Dep’t of Transp, 497 Mich 45, 80-81; 860 NW2d 67 (2014). The distinction is an important one because, although the no-fault act does provide remedies for work loss, see MCL 500.3107(1)(b), “damages for loss of earning capacity are not recoverable under the no-fault act.” Ouellette v Kenealy, 141 Mich App 562, 564; 367 NW2d 353 (1984).
Justice Ronayne Krause concurred in result only.
