Michigan Court of Appeals; Docket Nos. 144041,145527 and 147226; Unpublished
Judges Sawyer, Hood, and Weaver; Unanimous; 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:
Evidentiary Issues
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals affirmed summary disposition of the trial court on plaintiffs claim for wage loss benefits, based upon a lack of evidence produced by the plaintiff that he had actually incurred loss of income. The court also reversed the trial court's refusal to award attorney fees under the offer of judgment rule and remanded for determination of the attorney fee issue.
Plaintiff received very serious injuries when he fell while exiting his vehicle. He claimed no-fault benefits from Farm Bureau for services, mileage, medical care and wage loss. Farm Bureau sought summary disposition on plaintiffs wage loss claim, alleging that for many years prior to the accident, plaintiff had been receiving Social Security total disability benefits. The trial court granted defendant's motion, ruling that because plaintiff was receiving total disability benefits from Social Security, he was incapable of work and therefore ineligible for no-fault work loss benefits. On appeal, the Court of Appeals affirmed the grant of summary disposition, noting that the court reached the right result for the wrong reason. The court held that despite documents submitted by plaintiff which plaintiff claimed showed that he was engaging in work, such as cleaning barns, fixing fences, etc., prior to his injury, the Court of Appeals held that plaintiff never produced any evidence showing that he was required to hire replacement labor to perform these tasks after the accident The court held that a party seeking work loss benefits must demonstrate actual loss; a mere loss of earning capacity is insufficient.
On a related discovery issue, the Court of Appeals affirmed the trial court and held that it was not an abuse of discretion for the court to disallow discovery of certain portions of the contents of plaintiff’s personal injury protection file. The trial court had ordered defendant to produce certain documents while ruling that others constituted work product and need not be produced. The Court of Appeals held that its review of the sealed material convinced it that this material constituted defendant's work product and need not be disclosed.
Finally, the Court of Appeals reversed the trial court's decision to invoke the "interest of judgment" provision of MCR 2.405(D)(3) and not award attorney fees to the defendant in spite of plaintiff s failure to obtain a verdict in excess of the average offer in connection with offers of judgments submitted prior to trial. The Court of Appeals noted that a trial court may properly consider the good faith or reasonable conduct of the parties in resolving whether attorney fees are appropriate, but the Court of Appeals held that a trial court may not deny attorney fees based solely upon an offeree's "good faith rejection" of an offer of judgment The matter was reversed and remanded to the trial court for purposes of determination of reasonable attorney fees.
