Marquis v. Hartford Accident & Indemnity

Griffin, J.

(dissenting). I respectfully dissent. It is well settled that "work loss” as provided by the no-fault act refers to loss of actual income and not to loss of earning capacity. Ouellette v Kenealy, 424 Mich 83; 378 NW2d 470 (1985). The no-fault act defines work-loss personal protection insurance as follows:

Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured .... [MCL 500.3107(b); MSA 24.13107(b). Emphasis added.]

In the present case, the majority has confused loss of earning capacity and loss of actual earnings. In Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135, 141-142; 268 NW2d 317 (1978), Judge (now Chief Justice) Michael F. Cavanagh noted that the distinction between the loss of earning capacity and the loss of actual income is the difference between what a claimant "could have” earned and "would have” earned. Further, the no-fault act provides recovery for only the latter:

First, we note that the cases which discuss earning capacity damages stress repeatedly that plaintiffs right is to recover not what he would have earned but what he could have earned. Prince v Lott, supra, 369 Mich at 610; 120 NW2d at 782, Lorenz v Sowle, supra, 360 Mich at 555; 104 NW2d *292at 349-350, Coger v Mackinaw Products Co, 48 Mich App 113, 125; 210 NW2d 124, 130 (1973). This contrasts sharply with the language of the statute before us: "benefits are payable for . . . loss of income from work an injured person would have performed . . . .” Giving this language the plain meaning which we must, it seems evident to us that the statute is not an enactment of the common-law rule. [Emphasis in original. 83 Mich App 141-142.]

The circuit court ruled below that after plaintiff chose to become voluntarily unemployed,1 her work-loss claim was for loss of earning capacity rather than for loss of actual earnings. I agree and would hold that once plaintiff removed herself from the work force, the only damages she suffered were for loss of earning capacity. Consequently, because the no-fault act does not allow recovery of such damages, I would hold that a claimant is not entitled to no-fault work-loss benefits during time periods that the claimant voluntarily chooses not to work.

Our decisions have repeatedly held that work-loss benefits are payable only for loss of actual income caused by an automobile accident injury. Subsequent events that are independent and intervening may break the necessary chain of causation. In MacDonald v State Farm Mutual Ins Co, 419 Mich 146; 350 NW2d 233 (1984), our Supreme Court held that a claimant’s unrelated heart attack was a subsequent and intervening event that terminated the no-fault carrier’s liability for work-loss benefits. The Supreme Court has summarized its holding in MacDonald as follows:

*293In MacDonald v State Farm Mutual Ins Co, 419 Mich 146; 350 NW2d 233 (1984), this Court held that where a person suffers an unrelated injury, a heart attack, after an automobile accident and is rendered unable to work, eligibility for work-loss benefits ceases because no income would have been earned even if the accident had not occurred. [Ouellette, supra at 86. Emphasis added.]

Further, the incarceration of a claimant following a criminal conviction is also an independent and intervening event that breaks the causal connection necessary for the payment of no-fault work-loss benefits. Smith v League General Ins Co, 143 Mich App 112; 371 NW2d 491 (1985), rev’d 424 Mich 893 (1986); Luberda v Farm Bureau General Ins Co, 163 Mich App 457; 154 NW2d 245 (1987). Under such circumstances, the no-fault carrier is not responsible for work-loss benefits during the period of incarceration because an event unrelated to the automobile accident removed the claimant from the work force.

In this case, like in Coates v Michigan Mutual Ins Co, 105 Mich App 290; 306 NW2d 484 (1981), a decision by the plaintiff, not the automobile accident, controls plaintiff’s income level. Plaintiff’s decision not to work is a cause independent and intervening from the accident. Under such circumstances, "[plaintiff’s] eligibility for work-loss benefits ceases because no income would have been earned even if the accident had not occurred.” Ouellette, supra at 86.

Finally, I note that such a construction of the no-fault statute is consistent with the judicially created favored-work doctrine that we have repeatedly applied in the context of the Workers’ Disability Compensation Act. In a factually similar case, Coon v Rycenga Homes, 146 Mich App 262; 379 NW2d 480 (1985), we held that a workers’ compen*294sation carrier is not liable for a wage differential during the time that a partially disabled employee unreasonably refuses favored work. In Coon, we rejected the petitioner’s argument that a carrier is responsible for the differential between the wage of his former employment and that of his favored work. Rather, we held that when favored work is unreasonably refused, "plaintiff has forfeited his entitlement to all workers’ compensation benefits.” Id. at 267. (Emphasis added.)

For these reasons, I respectfully dissent and would affirm.

Plaintiffs brief contains the following admission:

Plaintiff-appellant’s subsequent employment was for a period of approximately six weeks, when she voluntarily quit. Plaintiff-appellant admits that since she voluntarily quit her employment, she has failed to mitigate her damages.