Michigan Court of Appeals; Docket #256261; Unpublished
Judges Donofrio, Borrello, and Davis; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Applicability of Comparative Fault to Noneconomic Loss Claims [3135(2)]
Liability for Excess Economic Loss Caused by Insured Tortfeasors [3135(3)(b)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals held that where a bicyclist was going the wrong way when he was hit by defendant Lahuis, and the police report indicated defendant could not have avoided the accident, the trial court properly granted defendants’ motion for summary disposition on plaintiffs’ claim for non-economic losses, because plaintiff Angel Mercado was more than 50% at fault. However, the Court of Appeals further held that defendants were improperly granted summary disposition on plaintiffs’ claim for economic losses, because the comparative negligence bar under MCL 500.3135(2)(b) only applies to claims for non-economic losses.
The plaintiff in this case was injured when he was hit while riding his bike in the wrong direction in a restaurant parking lot. The police report indicated the driver of the car would not have been able to avoid the accident, because she would not have been able to see plaintiff until the last minute.
The Court of Appeals first ruled the trial court properly decided the issue of comparative fault on summary disposition. The Court of Appeals based its holding on Huggins v Scripter, 469 Mich 898 (2003), where the Michigan Supreme Court held that although comparative negligence is usually a question for the jury, it may be decided on a motion for summary disposition where no reasonable juror could find defendant was more at fault than the plaintiff. In this regard, the court stated:
“Comparative negligence is usually a question for the trier of fact. . . . However, comparative negligence may be decided on a motion for summary disposition where ‘no reasonable juror could find that defendant was more at fault than the decedent in the accident as required by MCL 500.3135(2)(b).’ . . . When reasonable minds cannot differ whether one party was substantially more at fault than the other, summary disposition is appropriate.”
The court then held that even if plaintiff was more than 50% at fault, this does not bar his claim for economic damages. In this regard, the court declared:
“The comparative negligence bar of MCL 500.3135(2)(b) applies only to ‘action[s] for damages pursuant to subsection (1),’ which addresses noneconomic damages only. . . . By its own terms, the comparative negligence provision does not apply to claims for economic damages brought under subsection (3). Therefore, despite the trial court’s finding that Angel was more than fifty percent at fault, plaintiffs’ claim for economic damages under MCL 500.3135(3)(c) was not subject to the comparative negligence bar. Plaintiffs’ claim for medical expenses and lost earnings should have been allowed to proceed.”
