Michigan Court of Appeals; Docket No. 68210; Published
Judges Allen, Hood, and White; Unanimous; Per Curiam
Official Michigan Reporter Citation: 137 Mich App 603; Link to Opinion 
STATUTORY INDEXING:
Wage Loss for Temporarily Unemployed Persons / Qualifications [§3107a]
Calculation of Wage Loss for Temporarily Unemployed Persons [§3107a]
Nature of Survivor’s Loss Benefits [§3108(1)]
Standards For Deductibility of State and Federal Governmental Benefits [§3109(1)]
Social Security Survivor’s Benefits [§3109(1)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§3148(1)]
Conduct Establishing Unreasonable Delay or Denial [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion regarding a jury verdict in favor of plaintiff for survivor's loss benefits and replacement service expenses under §3108 of the Act, the Court held:
1. The "temporarily unemployed" provisions of §3107a do not apply to survivor's loss claims under §3108. Claims made under the latter section require proof that the dependents "would have received" support if the decedent had not suffered the accidental bodily injury causing death. Therefore, it was improper to base an award of survivor's loss benefits on the fact that plaintiff’s decedent was temporarily unemployed at the time of her death. However, survivor's loss benefits were properly awarded beginning with the date that the jury found plaintiff’s decedent would have returned to work. The jury made this determination in a special verdict form.
2. The jury could properly base its conclusion that plaintiff’s decedent intended to return to work as of a particular date on the testimony of four witnesses who were close friends and acquaintances of plaintiff s decedent. The relationship of the witnesses to plaintiff’s decedent may have affected the weight of the evidence but not its admissibility.
3. The trial court's decision to exclude evidence that plaintiff’s decedent was receiving workers' compensation benefits at the time of her death was proper.
4. The trial court's award of attorney fees was "quite appropriate in this case" and thus affirmed. In so holding, the appellate court held that it was not necessary to make an allocation of attorney time between those legal services rendered in connection with obtaining payment of benefits which had been unreasonably denied and those services rendered in pursuit of claims which were reasonably in dispute. The Court stated, "defendant does not cite any case which requires allocation of attorney fees where a defendant has unreasonably refused to pay certain benefits even where its refusal to pay other benefits was found not to be unreasonable. We find the trial court's refusal to allocate proper under the facts of this case." In addition, the Court noted that "the fact that a portion of the amount due was in dispute did not justify withholding the entire amount due."
5. Based upon the previous Court of Appeals holding in Swanson v Citizens Insurance Company (item number 340 — reversed on other grounds item number 453), the Court held that social security survivor's loss benefits received by dependents of the decedent could not be setoff against no-fault replacement service benefits available under the survivor's loss provisions of §3108. The two benefits are not like-kind benefits.
