Michigan Court of Appeals; Docket No. 97629; Published
Judges MacKenzie, Danhoff, and Beasley; Unanimous; (Opinion by Judge MacKenzie)
Official Michigan Reporter Citation: 180 Mich App 347; Link to Opinion 
STATUTORY INDEXING:
Workers Comp Liens Regarding Auto Tort Claims [§3116]
TOPICAL INDEXING:
Workers Disability Compensation Act (MCL 418.1, et seq.)
CASE SUMMARY:
In this unanimous Opinion by Judge MacKenzie, the Court of Appeals ruled that a workers' compensation insurer is entitled to reimbursement and a future credit out of plaintiff’s automobile accident wrongful death recovery for any workers' compensation benefits paid to plaintiff in excess of no-fault survivor's loss benefits. The court also held that the trial court's apportionment of the recovery between economic and non-economic loss and loss of consortium did not diminish the workers' compensation carrier's lien rights. The court relied upon the Supreme Court's decision in Great American v Queen (Item No. 376). Under the Great American rule, the workers' compensation carrier would not be entitled to reimbursement for any workers' compensation benefits paid during the first three years following the accident in question. However, where the compensation carrier pays disability benefits beyond the three year period (such as in this case where workers’ compensation survivor's benefits are payable for 500 weeks), the workers' compensation carrier is entitled to treat the entire automobile accident tort recovery as being subject to its statutory right to reimbursement/future credit.
The court further held that even if a portion of the wrongful death recovery was allocated for the widow's loss of consortium, this would not affect the workers' compensation carrier's lien rights. The court acknowledged that there are cases which hold that the workers' compensation lien only extends to that portion of a tort recovery that is not allocated to loss of consortium. However, all of these cases deal with non-fatal injuries where the workers' compensation benefits are payable exclusively to the injured person and the consortium claimant does not receive direct benefits. This is not the situation in a wrongful death case where the workers' compensation benefits are payable directly to the surviving spouse who has the consortium claim. Therefore, an allocation of a portion of the recovery to loss of consortium will not affect the compensation lien. The court concluded by saying:
"We therefore conclude that the workers' compensation carrier is entitled to reimbursement and/or a future credit out of the entire settlement, including any portion thereof which may have been allocated to the widow's claim of loss of consortium. We find that the trial court clearly erred in extinguishing Travelers right to reimbursement and/or future credit. We reverse and remand with instructions to the trial court that the entire judgment entered herein in favor of plaintiff is subject to Travelers lien governed by MCLA 418.827(5) after deduction of expenses. Reimbursement and future credit should be calculated according to the formula set forth in Franges v General Motors, 404 Mich 590 (1979)."
