Michigan Court of Appeals; Docket No. 63718; Published
Judges Kelly, Allen, and Hoffius; Per Curiam
Official Michigan Reporter Citation: 139 Mich App 768; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Work Loss Benefits: Loss of Earning Capacity [§3107(1)(b)]
Nature of Survivor’s Loss Benefits [§3108(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 per curiam Opinion, the Court of Appeals overruled a bench trial verdict in favor of plaintiff which had awarded her survivor's loss benefits as a result of the motor vehicle accident death of her student husband Plaintiff’s husband was a full-time forestry student at Michigan State University. He was killed on the last day of his last exam in his senior, year. At the time of his death, it was his plan to pursue a career in forestry on the west coast. Prior to his death, he filed an application with the US Forestry Service on the civil service register. As of the date of his death, plaintiff’s husband had not received any formal offers of employment However, six months after his death, plaintiff received a letter addressed to her husband from the Civil Service Commission which contained a form entitled "Inquiry of Availability," inquiring whether plaintiff’s husband was still available for work. At trial, a forestry service staff specialist testified that had plaintiff’s husband replied to the inquiry that he was available, "it was likely" that he would have been offered a position. Based upon this record, the trial court found that plaintiff was entitled to survivor's loss benefits under §3108 of the statute on the basis that plaintiff would have secured full-time employment and based the benefit level on what plaintiff’s husband would have earned working for the forestry service.
The court reversed the trial court and held that the trial judge's finding that plaintiff’s husband would have been employed by the forestry service was clearly erroneous. The court noted that the "Inquiry of Availability" was not an offer of employment. Furthermore, this "inquiry" occurred six months after the death of plaintiff s husband and was the only evidence of even a possibility of employment.
The court held that in order to obtain survivor's loss benefits under §3108, a dependent must show that he or she "would have received" support from the decedent. In the case of a spouse, §3110(1) conclusively preserves dependency. Thus, the surviving spouse need not show what he or she would have actually received for their own individual support Furthermore, the "would have received" standard should be interpreted in the manner similar to §3107(b) providing for work loss benefits. However, the provisions of §3107a which provide work loss benefits for "temporarily unemployed" persons should not be used for survivor's loss claims. In light of the fact that the appropriate inquiry under §3108 is to determine what the dependents "would have received" for their support had the decedent not died in an accident, the trial judge was correct in considering the testimony of the forestry service staff specialist However, that evidence alone was not sufficient to justify an award of survivor's loss benefits in this particular case.
Judge Kelly dissented. He did not agree that the trial court was clearly erroneous in its conclusion that plaintiff’s decedent would have been employed by the forestry service had he survived the accident Therefore, Judge Kelly would affirm.
