Michigan Court of Appeals; Docket No. 49723; Published
Judges T. M. Burns, Allen, and Walsh; 2-1 (With J. Burns)
Official Michigan Reporter Citation: 105 Mich App 202; Link to Opinion
In a 2-1 Opinion by Judge Walsh, the Court held that the governmental setoff provisions of §3109(1) of the no-fault statute permitted a no-fault carrier to reduce no-fault benefits by the amount an injured person would have received in workers' compensation benefits even though the injured person's employer failed to carry workers' compensation insurance as required by law and as a result no comp benefits were received by the insured person. The Court held that §3109(1) is clear and unambiguous and mandates a setoff of workers' comp benefits which are "provided or required to be provided" under Michigan law. Because the workers' compensation statute requires workers' comp coverage, these benefits are "required to be provided" and thus the no-fault carrier is entitled to claim an offset for the amount that would have been paid to the injured person had workers' comp coverage been in effect. The majority acknowledged that the literal application of the statute in this case "leads to consequences which are tragically unfortunate for the plaintiffs because their employer failed to provide required workers' disability benefits." However, the Court commented that if the statute is unfair or unreasonable the remedy "lies with the legislature."
Judge T. M. Burns dissented. He argued that an earlier Opinion by the Michigan Supreme Court in Mays v Insurance Company of North America, 407 Mich 165 (1919), applied to this case thereby permitting a setoff of workers' comp benefits only to the extent they are "actually received."