Michigan Court of Appeals Docket # 296517 Unpublished
Judges Cavanaugh, Talbot and Stephens; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
The Michigan Supreme Court DENIED Leave to Appeal on 11/23/2011; Link to Order
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Loss of Earning Capacity [§3107(1)(b)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that the plaintiff had failed to provide “specific evidence” to support her claim for excess work loss benefits where an unemployed college student claimed that she would have completed a four year degree and would have secured employment utilizing that degree but for the motor vehicle accident. The Court of Appeals, based upon its determination that the evidence presented was not sufficient, vacated the trial court judgment awarding the plaintiff work loss benefits.
The plaintiff was an unemployed college student at the time of her accident. In support of her claim for work loss benefits, she presented evidence that, but for the accident, she would have successfully completed college, and that, statistically, it is more likely than not, but for the accident, she would have earned income over her lifetime at least in the average range for a female college graduate with an average life expectancy.
The Court of Appeals held that such “general proofs” were not sufficient to support a claim for work loss benefits. Relying on the previous decisions of Swartout v. State Farm Mutual Auto Insurance Company, 156 Mich App 350 (1986) and Gerardi v. Buckeye Union Insurance Company, 89 Mich App 90 (1979), the court stated that it was required that the plaintiff present “concrete evidence” to show that she would have completed a four year degree and evidence of the source of her employment after completing the degree. In Swartout, the plaintiff had submitted evidence of an offer of employment from a specific hospital, including her starting date and salary, thus resulting in the Court of Appeals upholding a claim for work loss benefits. In Gerardi, a nursing student had not presented any proof of a “specific job offer, starting date, or promised salary,” resulting in the Court of Appeals rejecting the plaintiff’s claim for work loss benefits.
The Court of Appeals in the instant case noted the distinction between lost earning capacity which is not recoverable under the No Fault Act, Marquis v. Hartford Accident & Indemnity, 444 Mich 638 (1994) and work loss. Lost earning capacity is what an injured person could have earned but for the accident, whereas work loss is what an injured party would have earned but for the accident. Based upon the rationale in both Swartout and Gerardi, the Court of Appeals held that the plaintiff was required to present specific evidence that she would have completed her degree and evidence of the source of her employment post-graduation, including date of employment and wage. Based upon the failure to present such evidence, the trial court award of work loss was vacated.
