Michigan Court of Appeals; Docket No. 78-828; Published
Judges Brennan, Cavanagh, and Hoehn; Unanimous; Opinion by Judge Brennan
Official Michigan Reporter Citation: 89 Mich App 387; Link to Opinion 
STATUTORY INDEXING:
Nature of Survivor’s Loss Benefits [§3108(1)]
Calculation of Survivor’s Loss Benefits and Maximums [§3108(1)]
Dependents [§3108(1)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In a significant case of first impression, the Court of Appeals, in a unanimous opinion by Judge Brennan, held that a father's remarriage after the auto accident death of his wife, does not affect the need of a child from the former marriage for ordinary and necessary services that the deceased mother once provided. Accordingly, under §3108 of the statute, plaintiff husband was entitled to recover $20 per day in replacement service expenses pursuant to an agreement that he had with his new wife to pay her $20 per day for the care of his daughter.
In so holding, the Court of Appeals reversed the trial court's conclusion that plaintiff's remarriage reestablished a family unit and ended the need for plaintiff to incur expenses for ordinary and necessary services for the minor daughter in lieu of those provided by the daughter's dead mother. In its decision, the Court of Appeals noted that "nowhere in the no-fault statute is there language that disqualifies relatives from performing services." The Court noted that the workers' compensation statute has a provision similar to §3108 of the no-fault law wherein an employer is obligated to furnish services to an injured employee. The Court of Appeals relied heavily on the case of Kushay v Sexton Dairy Company, 394 Mich 69 (1975), which dealt with this provision of the workers' compensation statute. In the Kushay case, the Supreme Court held that a disabled employee may recover benefits for services rendered to him by his wife and that an insurer should not reap a windfall because ordinary necessary services are performed by a wife instead of a housekeeper or a nursemaid.
The Court further noted that the plaintiff’s new wife does not legally replace the daughter's dead mother nor does the stepmother save the same duties and obligations as the dead parent. Accordingly, it was error to conclude that the husband's remarriage terminated the daughter's eligibility to receive replacement loss benefits under §3108 of the statute.
It is also quite significant to note that even though the Court of Appeals referred to this case as a "case of first impression,'' the defendant insurance company was ordered to pay costs and reasonable attorney fees. This is a departure from some previous Court of Appeals cases which have tended to avoid assessing costs and reasonable attorney fees where a case presented serious questions of statutory interpretation.
[Author's Comment: This decision reverses the Circuit Court opinion in item number 84.]
