Michigan Court of Appeals; Docket Nos. 103878 and 103495; Unpublished
Judges Maher, Cynar, and Griffin; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
Wage Loss for Temporarily Unemployed Persons / Qualifications [§3107a]
Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]
Canadian Governmental Benefits [§3109(1)]
12% Interest Penalty on Overdue Benefits – Nature and Scope [§3142(2), (3)]
Obligations of Admitted Insurers to Pay PIP Benefits on Behalf of Nonresidents Injured in Michigan [§3163(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous per curiam Opinion, the Court of Appeals reversed in part and affirmed in part a case involving a claimed set off for governmental health insurance benefits payable by a Canadian public health insurance program.
In this case, plaintiff was injured while occupying a van parked in the front lawn of a Detroit residence. The van was rented in Ontario, Canada and insured by defendant General Accident Assurance Company of Canada. In the first appeal, the trial court had granted summary disposition in favor of defendant on the basis that the van was not being used as motor vehicle at the time of the accident. On appeal, the Court of Appeals in a 2-1 decision affirmed. However, the Supreme Court of Michigan reversed and adopted the dissenting opinion from the Court of Appeals which would find plaintiff entitled to no-fault benefits because the striking vehicle which collided with the van was being used as a motor vehicle. On remand, judgment was entered in favor of plaintiff for $390,739 worth of no-fault benefits.
On appeal for the second time, defendant argued that the trial court erred in refusing to grant it a set off of certain benefits plaintiff received from the Ontario health insurance plan, a Canadian public health insurance program. The Court of Appeals, in construing the language of §3109(1), held that it did not apply to benefits received from a "foreign government." The language of §3109(1) clearly refers to benefits provided under the laws of any "state or the federal government." Since the Legislature makes reference in several other sections of the No-Fault Act to Canada, the court held that by not mentioning benefits received from the Canadian government in the setoff scheme of §3109(1), it could only assume the omission constituted a legislatively created distinction so as to preclude such a setoff.
The Court of Appeals also rejected defendant's assertion that §3109(1) applies to Canadian governmental benefits received by plaintiff because the defendant had filed a "certificate of compliance" in accordance with MCLA 500.3163(1), thereby entitling defendant to the same rights and immunities as a Michigan based insurer. In rejecting this argument, the Court of Appeals stated that "not even a Michigan-based insurer would be entitled to a setoff of benefits received from the Canadian government."
The court also rejected defendant's argument that the certification of compliance expressly permitted the setoff. The court held that the certification of compliance does not, by its terms, purport to authorize the setoff of Canadian benefits payable outside the policy, and therefore, defendant was not entitled to a setoff.
An additional issue on appeal concerned whether plaintiff had proved that she was "temporarily unemployed" on the date of the accident, thus entitling her to work loss benefits. In reversing the trial court decision in plaintiffs favor on this issue, the court held that to be temporarily unemployed for purposes of §3107(b) and §3107a, the insured must show that he or she is unemployed on the date of the accident, and that he or she would have been, but for the accident, actively seeking employment and there is evidence showing the unemployed status would not have been permanent if the injury had not occurred. The court held that a "bare assertion of intent to secure employment, absent independent corroboration of such intent or actions taken to obtain employment during the period of unemployment" is insufficient to render the injured person "temporarily unemployed."
Finally, the Court of Appeals affirmed an award of "penalty interest" under §3142 and rejected defendant's argument that interest did not begin until after the Supreme Court rendered its decision in the first appeal. A "reasonable refusal to pay" does not toll the accrual of penalty interest.
