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Pellerito v State Farm Mutual Automobile Insurance Company; (COA-UNP, 3/29/1988; RB # 1125)


Michigan Court of Appeals; Docket No. 92413 and 93707; Unpublished  
Judges MacKenzie, Doctoroff, and Clulo; Unanimous; Per Curiam  
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   

Standards for Deductibility of State and Federal Governmental Benefits [§3109(1)]  
State Workers Compensation Benefits [§3109(1)]  
Reasonable Proof Standard [§3142(1)]  
12% Interest Penalty on Overdue Benefits – Nature and Scope [§3142(2), (3)]  
General / Miscellaneous [§3148]

Evidentiary Issues
Extra Contractual / Mental Anguish Damages
Workers Disability Compensation Act (MCL 418.1, et seq.)    

This unanimous per curiam Opinion deals with several issues regarding a jury verdict in favor of plaintiff for wage loss benefits and compensatory damages for intentional infliction of emotional distress. Among other things, the court ruled:

1.     Plaintiff's receipt of workers' compensation benefits as a result of a non-motor vehicle injury and plaintiff’s subsequent redemption of that workers' compensation claim, does not, as a matter of law, disqualify plaintiff from receiving no-fault work loss benefits for the same injury. The court rejected defendant's argument that, because plaintiff accepted these workers' compensation benefits, he is conclusively presumed to have been solely disabled from an injury in the course of employment rather than an automobile accident, and therefore, is not entitled to no-fault wage loss benefits. In the case at bar, plaintiff was not insured in the course of a sole incident. He was involved in two separate events approximately one year apart. One was an automobile accident, the other was an injury at work. It was reasonable that a jury could reach the conclusion that the automobile accident was the cause of plaintiff s disability as opposed to the work incident.

2.     There was no error in the court's refusal to deviate from the standard jury instruction regarding setoffs. A no-fault insurer is not automatically entitled to a setoff for governmental benefits. According to the test in Jarosz v DAIIE, 418 Mich 565 (1984), a no-fault insurer is entitled to a setoff for governmental benefits only if the benefit serves the same purpose as the no-fault benefit and is provided or required to be provided as a result of the same accident.

3.      The plaintiff was not entitled to take his case to the jury on the claim of intentional infliction of emotional distress. Plaintiff’s evidence with respect to this claim was inadequate as a matter of law. In Roberts v Auto-Owners, 422 Mich 594 (1985), the Supreme Court discussed the parameters of this tort and indicated that the conduct required must be extreme and outrageous. In the case at bar, the Court of Appeals, applying Roberts, held, in a contractual setting such as the present case, a tort action must rest on a breach of duty distinct from the contract. Neither the mere failure to pay a contractual obligation, nor a request for a verification of claims absent harassment or similarly egregious conduct, nor dilatory handling of a party's claim, constitutes outrageous conduct for purposes of the tort of intentional infliction of emotional distress.

4.      It was not error to admit into evidence a letter from plaintiff’s treating physician where the letter was being admitted to prove defendant's notice of the expert's opinion regarding plaintiff’s disability.

5.      A plaintiff is entitled to interest under §3142 of the statute wherever a benefit is "overdue." A benefit becomes overdue when it is not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of the loss. This is a fact question. Plaintiff need not show bad faith or any other improper conduct in order to receive no-fault interest. Because the trial court failed to make a finding as to when reasonable proof of the loss was presented to the insurance company, the case is remanded to the trial court in order to make that determination and assess interest at the rate of 12% under §3142 30 days from that notice date.

6.      The trial court's award of attorney fees under §3148 would not be disturbed on appeal because there was no showing that the award was "clearly erroneous."

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