Michigan Court of Appeals; Docket No. 51752; Published
Judges Kaufman, Brennan, and Cynar, Per Curiam
Official Michigan Reporter Citation: 116 Mich App 116; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Extra Contractual / Mental Anguish Damages
CASE SUMMARY:
In this 2-1 per curiam Opinion, the Court of Appeals affirmed prior holdings and held that damages for mental and emotional distress are not recoverable in actions for breach of no-fault insurance contracts. The Court stated that no-fault contracts are "pecuniary contracts," the breach of which do not give rise to these kinds of damages.
The Court also reversed a jury verdict in favor of plaintiff for replacement service expenses incurred by plaintiff widower as a result of the automobile accident, death of his wife. The basis for the reversal was that plaintiff had not proved that these expenses have been "incurred" under §3108 under the test established in Adkins v Auto-Owners (item number 339). In Adkins, the Court held that incurred means "amounts expended or for which the survivor has become liable." In the case at bar, the plaintiff testified that family members performed various household tasks for him after his wife died. However, in ruling that plaintiff had not sustained his burden of proof on the question of whether these expenses had been incurred, the Court noted, "he was unable to state with certainty how much time the relatives had spent on his behalf. In addition, he stated that he had agreed to compensate them if he prevailed in his lawsuit, but he was unable to state how much he agreed to pay them. Finally, on cross-examination, plaintiff testified that although defendant had paid plaintiff $7,200 for replacement services prior to trial, plaintiff had not paid any of that money to the relatives who had performed the replacement services."
The Court also held that it was not error for plaintiff’s counsel to testify during the trial as to certain things he did on plaintiff’s behalf regarding the processing of this claim and the defendant's unreasonable conduct. After this testimony, an associate of plaintiff s counsel finished the trial. The Court of Appeals held it was not error to permit this attorney testimony where the trial court ordered the testifying attorney to not participate further in the trial except to allow him to sit at counsel table.
Judge Kaufman filed a partial dissent regarding the issue of replacement service expenses. He would affirm the jury verdict for these benefits on the basis that plaintiff had offered sufficient testimony that he had agreed with his relatives to pay them for their services depending on his settlement with defendant Judge Kaufman stated, "Plaintiff had quite plainly agreed to reimburse his relatives for their services. I do not believe that his liability to them should be viewed as any less real merely because he was waiting for an insurance award prior to payment"
