Michigan Court of Appeals; Docket No. 56665; Published
Judges Branson, Maher, and Ernst; Unanimous; Per Curiam
Official Michigan Reporter Citation: 116 Mich App 552; Link to Opinion 
STATUTORY INDEXING:
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
Social Security Retirement Benefits [§3109(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
The Court unanimously reversed the trial court's grant of summary judgment in favor of plaintiff (item number 406) which held that defendant insurance company could not legally offset social security retirement benefits from no-fault wage loss benefits pursuant to the setoff provisions of §3109(1) of the Act The Court held that on the sparse facts presented, it could not resolve the question of whether or not such a setoff of social security retirement benefits against wage loss benefits is permissible. The Court noted, "Indeed, we cannot even determine if appellant is liable to appellee for wage loss benefits.'' In the particular case, the plaintiff last worked on December 24, 1978, and sustained disabling injuries on March 25, 1979. At the time of the accident, plaintiff was 65 years-old and was collecting retirement benefits. The Court stated that if the three month period between the last day worked and the accident could be deemed "a term of temporary unemployment pursuant to §3107a, then appellant would be liable for wage loss benefits. However, if appellee was fully retired as of December 24, 1978, appellant is not liable to her for wage loss benefits." The Court stated that assuming appellee was not fully retired at the time of the accident, a setoff of social security retirement benefits might be permissible under the holding in Jarosz v DAIIE (item number 441) to the extent that the social security retirement benefits would have been reduced had the insured continued to work and earn income. Thus, the matter was remanded to establish additional facts regarding this issue.
The Court also held that the insurance company was not waived or estopped from asserting any defenses relating to the computation and proof of wage loss merely because it had paid the wage loss claims minus the social security setoff. The Court stated that an insurance company might rationally conclude that it should pay something on a suspect claim rather than start litigation but to also take the position that if it gets sued by its insured, it can take the position that no liability exists. However, the Court permitted the plaintiff to supplement the record on remand regarding these theories of waiver and estoppel.
