Michigan Court of Appeals; Docket No. 307616; Published
Judge’s Hoekstra K.F. Kelly and Beckering; Unanimous; Per Curiam
Official Michigan Reporter Citation: 299 Mich App 261; Link to Opinion 
STATUTORY INDEXING:
Objective Manifestation Element of Serious Impairment (McCormick Era: 2010 - Present) [§3135(7)]
Important Body Function Element of Serious Impairment (McCormick era: 2010 – present) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment (McCormick Era: 2010 – present) [§3135(7)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(c)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous published per curiam Opinion regarding plaintiff’s claims for noneconomic loss and plaintiff’s claims for excess economic loss, the Court of Appeals affirmed trial court’s award of non-economic loss damages and excess-economic loss, because both award amounts were proper under the MCL 500.3135 of the No-Fault Act.
The plaintiff in this case was struck by a State-owned salt truck. During the accident, she suffered injuries, which the court described as:
“injuries to her right shoulder and underwent four surgeries; a fifth surgery had been recommended . . . . Plaintiff suffers from chronic pain that causes fatigue, anxiety, and mood disorder, and she also requires assistance with normal daily activities.”
At the time of the accident, she was employed as a dental assistant, and alleged that but for the accident, she would have “been accepted into LCC's dental hygienist program, would have graduated, and would have been employed at least 60 percent of the time by a specific dental office at a rate of $28 an hour.” She brought this action against the Department of Transportation under the motor-vehicle exception of the GTLA seeking to recover noneconomic loss under 3135(1) and excess economic work-loss under 3135(3).
Following a bench trial, the Court of Claims found that the Plaintiff suffered a serious impairment of body function and awarded the Plaintiff $474,904 in noneconomic damages and “$767,076 in work-loss benefits and $153,872 in allowable expenses for ordinary and necessary services.”
This appeal followed, and Court of Appeals affirmed trial court’s award of non-economic damages and its award for excess work-loss benefits. The court did not address whether the additional amount awarded for allowable expenses was proper.
In affirming the trial court’s award of non-economic damages, the court of Appeals reasoned:
Plaintiff argued that the evidence demonstrated that she suffered a serious impairment of bodily function. Plaintiff reviewed the testimony of the numerous medical professionals who testified during the trial. Plaintiff also made arguments regarding the extent of damages, noting all the limitations that plaintiff faces as a result of the accident. In its closing, defendant did not contest its liability; however, it did not concede that plaintiff suffered a serious impairment of bodily function or the amount of damages. On November 18, 2011, the trial court issued its opinion. First, the trial court concluded that the proofs demonstrated that plaintiff suffered a serious impairment of bodily function and that, accordingly, plaintiff was entitled to noneconomic damages. The trial court balanced plaintiff's age and vibrancy with the fact that she will likely always have limited use of her shoulder and arm and suffer from chronic pain to conclude that plaintiff was entitled to a total award of $474,904 in noneconomic damages.
In affirming the trial court’s award of excess economic work-loss benefits was also proper, the court first noted that “[a]t issue in this case are damages for lost wages in excess of the daily, monthly, and 3-year limitations contained in MCL 500.3107 to MCL 500.3110. These damages are governed by MCL 500.3135(3)(c), which provides that tort liability arising from the ownership, maintenance, or use of a motor vehicle remains in regard to '[d]amages for allowable expenses, work loss, and survivor's loss' as defined in sections 3107 to 3110.” The court then relied on the case of Swartout v State Farm Mut Auto Ins Co, 156 Mich App 350 (1986). In Swartout, it was held that a nursing student was entitled to excess economic recovery after specifically alleging “facts demonstrating where she would have been employed, the date her employment would have begun, and the wages she would have received but for the accident.” Based on Swartout, the court determined that the trial court’s award of excess economic work-loss benefits was proper. In this regard, the court reasoned:
“Similarly, in this case, plaintiff provided testimony to support a finding that, had she graduated from the dental hygienist program, she would have been employed by a specific dental office three days a week at the rate of $25 an hour. The dentist who employed plaintiff testified that he pays his dental hygienists $28 to $31 an hour. An expert on financial modeling testified that the national average for a dental hygienist is $28 an hour. The trial court found that, but for the accident, plaintiff would have been accepted into LCC's dental hygienist program, would have graduated, and would have been employed at least 60 percent of the time by a specific dental office at a rate of $28 an hour. The trial court's findings were supported by the testimony of plaintiff, the dentist who owned the dental office, an expert on financial modeling, and a dental hygienist employed at the dental office, as well as evidence regarding plaintiff's qualifications and LCC's admission standards. Under these circumstances, we cannot conclude that the trial court's damages award was purely speculative.”
The Court therefore upheld the trial court's award for excess work-loss benefits.
