Michigan Court of Appeals; Docket No. 67668; Unpublished
Judges Wahls, Holbrook, and Robinson; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; 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)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(b)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals held that a plaintiff is not entitled to recover loss of earning capacity in a tort action under §3135 of the Act Section 3135(2)(c) provides that a plaintiff may recover damages for work loss as defined in §3107 and §3110 in excess of daily, monthly and three-year limitations contained in those sections. Previous decisions of the Court of Appeals and the Supreme Court have established that "work loss," as defined in those sections, excludes loss of earning capacity. Work loss is a loss of income from work an injured person would have performed, whereas loss of earning capacity is what an injured person could have earned but for an injury. There is nothing in §3135 that preserves a tort cause of action for loss of earning capacity.
This panel specifically disagreed with another panel's decision in Argenta v Shahan (Item No. 727), which came to exactly the opposite conclusion. Therefore, there is a split of authority on this issue in the Court of Appeals.
[Author's Comment: The Michigan Supreme Court granted leave in both Argenta v Shahan and Ouellette v Kenealy on February 11, 1985 to specifically decide the question of whether damages for loss of earning capacity are recoverable under the no-fault act Oral argument was held on both of those cases on June 25, 1985.]
