United States District Court, Eastern District of Michigan; Case #13-cv-15287
Hon. Judith E. Levy
Official Michigan Reporter Citation: Not Applicable; Opinion Not Available 
STATUTORY INDEXING:
Replacement Service Expense Benefits: Nature of the Benefit [§3107(1)(c)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [§3135(3)(c)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this Federal written Opinion, Judge Judith E. Levy granted defendant’s motion for partial summary judgment and dismissed plaintiff’s claim for replacement services because, pursuant to Michigan law, third parties are only permitted to seek benefits for allowable expenses under the No-Fault Act.
Plaintiff filed this action for damages after plaintiff’s decedent struck defendant’s vehicle. Plaintiff’s complaint included a claim for “loss of services” under MCL 500.3107(1)(c). Defendant moved for summary judgment, asserting the Michigan Supreme Court in Johnson v Recca, 492 Mich 169 (2012), held that third parties cannot bring claims for “replacement services” (which Michigan courts have said are “loss of services”) under the No-Fault Act. Plaintiff responded that her claim was either properly brought under the Wrongful Death Act, MCL 600.2922, or should be construed as being for survivor’s loss benefits and not replacement services.
Judge Levy held that plaintiff’s claim had to be brought under the No-Fault Act. The judge said:
“Because plaintiff's tort claim for loss of services arises from the use of a motor vehicle by both plaintiff and defendants, her claim must arise under the No-Fault Act, as all other tort claims outside of the No-Fault Act are abolished.”
Judge Levy further held that, pursuant to Johnson v Recca, claims for loss of services may not be brought as survivor’s loss claims under Michigan law. According to the judge:
“A survivor's loss in Michigan ‘consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased's death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death.’ … A survivor's loss under Michigan law cannot include a claim for services. The Michigan Supreme Court held in Recca that, ‘in a third-party tort action, damages for replacement services are not recoverable pursuant to MCL 500.3135(3)(c)[.]’ … This is the result because, under the No-Fault Act, a plaintiff may only seek ‘[d]amages for allowable expenses, work loss, and survivor’s loss as defined in [MCL 500.3107 to MCL 500.3110] in excess of the daily, monthly, and 3-year limitations contained in those sections.’ … Because third parties are expressly permitted to seek only allowable expenses, work loss, and survivor’s loss damages under the No-Fault Act, third parties are prohibited from seeking damages related to replacement services, which were excluded from section 500.3135(3)(c).”
In conclusion, Judge Levy granted defendant’s motion for partial summary judgment and dismissed plaintiff’s claim for loss of services under the No-Fault Act.
