Michigan Court of Appeals; Docket No. 229404; Published
Judges Owens, Sawyer and Cooper; unanimous
Official Michigan Reporter Citation: 252 Mich. App. 87, Link to Opinion 
STATUTORY INDEXING:
Allowable Expenses for Funeral and Burial Expenses [3107(1)(a)]
Replacement Services Expense Benefits: Nature of the Benefit [3107(1)(c)]
Calculation of Survivor’s Loss Benefits and Maximums [3108(1)]
State Workers Compensation Benefits [3109(1)]
Social Security Disability Benefits [3109(1)]
Social Security Survivor’s Benefits [3109(1)]
Social Security Funeral and Burial Benefits [3109(1)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous published opinion by Judge Sawyer, the Court of Appeals issued two (2) significant holdings regarding the calculation of benefits recoverable in death cases. First, the court held that workers’ compensation and social security benefits, which are permissible governmental benefit setoffs under section 3109(1), may not be offset against that portion of no-fault survivor’s loss benefits which represent replacement services. Therefore, regardless of how large the governmental benefit setoff may be, it can never be applied so as to reduce replacement service expenses below $20 per day, $600 per 30 day period. In this regard, the court stated:
“Plaintiff argues that, because the § 3109 setoff only applies to the economic loss benefit, the setoff should be applied before the calculation of the total survivor’s loss benefit and before applying the ceiling. Thus, plaintiff’s calculation is as follows: because the § 3109 setoff amount of $4,712.14 exceeds the economic loss benefit, the economic loss benefit is reduced to zero. Because the § 3109 setoff does not apply to the replacement services benefit, that benefit is $600.00 (30 days times $20 per day). The total monthly survivor’s loss benefit is therefore $600.00 ($600 in replacement services benefits plus $0.00 in economic loss benefits). Because this is less than the monthly maximum of $3,688, the full $600 monthly benefit is payable. We agree with plaintiff’s approach.”
Second, the court held that the funeral and burial expense benefit contained in section 3107(1)(a) is not considered to be a “personal protection insurance benefit.” Therefore, no amounts received from governmental sources can be setoff against the no-fault funeral and burial expense under the governmental benefit setoff provisions of section 3109(1). The court acknowledged that this interpretation is based upon the precise language contained in section 3107(1)(a) and further noted that this language, which was the result of a legislative amendment, may have unintentionally omitted some language. However, if that is the case, the error must be corrected by the legislature and not the courts.
