Michigan Court of Appeals; Docket No. 190969; Unpublished
Judges Griffin, Holbrook, Jr., and Neff; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(b)]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unpublished per curiam Opinion of the Michigan Court of Appeals, the court upheld a jury verdict in favor of plaintiff for excess economic loss, finding that the plaintiff was not required to present evidence that her job would still be available to her throughout the time period of her disability in order to be entitled to wage losses in excess of no-fault first party coverage. The Court of Appeals also upheld the trial court's refusal to admit into evidence a written report of a physician who conducted an independent medical examination.
Plaintiff was injured at age 70 which resulted in her becoming disabled from her employment. She brought a third-party liability action against the defendant, seeking excess economic loss as provided under §3135(3)(c) of the No-Fault Act. The defendant claimed that the plaintiff was required to present evidence that her job would still be available to her throughout the time period of her disability, arguing that plaintiff’s job may not have been open to her due to her advanced age. However, the Court of Appeals rejected this argument and stated that, "the statute requires no more proof than that the work was lost as a direct consequence of the injury." The plaintiff testified that she had planned on working until age 75, and in light of the evidence presented, the court found it reasonable for the jury to conclude that, but for the accident, plaintiff would have worked at her job for five more years, but was disabled from doing so because of her automobile accident injuries.
The Court of Appeals also upheld the trial court's refusal to admit a written report of a physician hired to perform an independent medical examination of plaintiff. The defendant sought to introduce the report under MRE 803(6) which pertains to the records of regularly conducted activity. The court noted that, "a distinction is made between reports that are made in the regular course of treatment and relied upon during treatment, and those that are prepared with respect to a particular person for purposes of litigation." Noting the inherent lack of trustworthiness of a report that was prepared in anticipation of litigation, the Court of Appeals found no abuse of discretion by the trial court in excluding the admission of the independent medical examination report.
