Michigan Court of Appeals; Docket No. 45860 and 45974; Published
Judges R. B. Burns, Gillis, and Riley; Unanimous
Official Michigan Reporter Citation: 99 Mich App 52; Link to Opinion 
STATUTORY INDEXING:
Nature of Survivor’s Loss Benefits [§3108(1)]
Calculation of Survivor’s Loss Benefits And Maximums [§3108(1)]
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
Social Security Survivor’s Benefits [§3109(1)]
PIP Benefits Payable as Loss Accrues [§3142(1)]
Reasonable Proof Standard [§3142(1)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In a unanimous Opinion by Judge Gillis, the Court of Appeals made several significant holdings regarding survivors' loss benefits:
1. The Court held that in determining the amount of "tangible things of economic value" that a dependent is entitled to receive as survivors' loss benefits under §3108 of the statute, the decedent's gross wages must be reduced by an amount fairly representing the decedent's personal consumption and also by the amount which the decedent would have paid in taxes.
2. Under §3109 of the Act, a setoff of social security benefits is proper only against no-fault survivors' loss benefits which represent the loss of contributions of tangible things of economic value. No Social Security setoff is permitted against no-fault replacement service expenses, In so holding the Court held that §3109 was designed to require setoffs only of duplicative governmental benefits. Social Security benefits are intended to provide dependent persons with income protection occasioned by the loss of a wage earner s support. Social Security benefits are not paid for loss of services. Thus, a setoff does not apply to replacement service expenses.
3. In order for a plaintiff to recover interest on overdue survivors' loss benefits pursuant to §3142 of the Act, the plaintiff must offer proof of the decedent's personal consumption and potential tax expenses so that the insurer can calculate the tangible things of economic value that dependents have lost as a result of decedent's death. Where the dependents do not provide this setoff information, the survivors' loss benefits never become overdue.
4. Where both a husband and wife are separately insured under different policies and where both are killed in an automobile accident, the effect of §3114(1) is that neither of the decedents would be able to recover under the other's policy. Therefore, the survivor similarly could not recover under both policies.
5. When a husband and wife are both killed in an auto accident and each has a separate no-fault policy, the $20 per day replacement service limitation contained in §3108 of the Act applies separately to each policy. Therefore, dependents are entitled to recover up to $20 per day in replacement service expenses from each of the no-fault policies for a total of $40 per day. In so holding, the Court noted that had each of the parents survived, each would have been entitled to recover replacement service expenses up to $20 per day pursuant to §3107(b). In light of the fact that their dependents' rights are derivative, the dependents can claim replacement service expenses under both policies.
6. The Court held consistent with Moshier v Financial Indemnity (item number 235), the term "survivors' loss" encompasses replacement service expenses and a loss of contributions of tangible things of economic value, and as such, is subject to the single thirty day limitation.
