Krawczyk v. Detroit Automobile Inter-Insurance Exchange

Per Curiam.

Plaintiff brought this action in district court to recover no-fault personal protection benefits under MCL 500.3107; MSA 24.13107. Plaintiff was involved in an automobile accident on February 17, 1978. As a result of injuries sustained therein, she had to miss work. At the time of the collision, defendant insured plaintiffs automobile. Immediately following the accident, defendant made some payments to plaintiff, however, a dispute developed later from which this appeal arises.

The trial court, sitting without a jury, found that defendant was liable to plaintiff in the following amounts:_

*158"A. 85% of regular wages of $8,237.00 from October 17, 1978, to September 30, 1979. $ 7,001.00
"B. 85% of profit-sharing of $4,784.00 from date of injury on February 20, 1978, to September 30, 1979. 4.066.00
"C. 85% of pension of $600.00 from date of injury on February 20, 1978, to September 30, 1979. 510.00
"D. Interest on $7,001.00 at 12% per annum from October 17, 1978 to December 5, 1979. 950.60
"E. Interest on a late payment of adjusted wages of $3,310.00 at 12% per annum for 3 months. 100.00
"F. Pro-rated health insurance premiums for 5 months. 390.00
"G. Medical, bills. 745.00
"H. Attorney fee pursuant to MCL 500.3148; MSA 24.13148. 2.437.00
$17,199.60
"I. Costs. 202,35
$17,401.95”

Defendant appealed this judgment to the circuit court, claiming that the district court improperly included the retirement contribution and replacement health insurance payments as part of plaintiffs damages and that the district court erred in rendering a decision in excess of its statutory jurisdictional limit of $10,000. In a well-written opinion, Lapeer County Cricuit Court Judge Martin E. Clements affirmed the district court.

Defendant asks this Court to determine whether fringe benefits, such as profit-sharing payments, pension contributions, and employer health insurance payments, are considered recoverable "work loss” within the meaning of the no-fault act provi*159sion MCL 500.3107(b); MSA 24.13107(b). That section provides:

"Personal protection insurance benefits are payable for * * *.

"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 and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.” (Emphasis added.)

Plaintiff successfully argued to the trial court that since work loss consisted of lost income, which is not defined by the Legislature, recovery is not limited to wages and, therefore, the specified fringe benefits are recoverable. The trial court ruled that profit-sharing and retirement contributions were recoverable under the work-loss statute, *160but the health insurance benefits were not recoverable because they are not considered taxable income by the government. However, the court awarded the cost of acquiring substitute health insurance as a recoverable expense under the act. The circuit court ruled that substitute health insurance was a type of recoverable work loss and not recoverable as a replacement service.

Defendant failed to raise, in circuit court, the issue of whether profit-sharing should be included in work-loss benefits. Nevertheless, as both parties have briefed this issue, this item will be considered along with pension and health insurance contributions to foster a final and just decision.

Section 3107(b) of the no-fault act was patterned after § 1(a)(5)(h) of the Uniform Motor Vehicle Accident Reparations Act (UMVARA), 14 ULA (Master ed) 50. Pries v Travelers Ins Co, 86 Mich App 221, 223-224; 272 NW2d 247 (1978), aff’d 408 Mich 870; 289 NW2d 717 (1980). The UMVARA defines work loss as loss of income from work which the injured person would have performed if he had not been injured. The commissioner’s comments appended to that section state:

I. " 'Work loss’, * * * is restricted to accrued loss, and thus covers only actual loss of earnings as contrasted to loss of earning capacity.”
II. "Work loss is not restricted to the injured person’s wage level at the time of injury.”
III. "Work loss includes not only lost wages, but lost profit which is attributable to personal effort in self-employment (as distinguished from profit attributable in investment) or the cost of hiring a substitute to perform self-employment services.” 14 ULA (Master ed) 54.

*161The UMVARA considers lost earnings, lost wages and certain lost profits as "work loss”. The act specifically recognizes that a person’s wage level could conceivably rise after the injury but does not so recognize fringe benefits. The language indicates work loss includes not only lost wages but also certain lost profits and infers that fringe benefits are not recoverable work losses.

This interpretation of the Legislature’s intent is bolstered by Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538; 302 NW2d 537 (1981). The Court in Miller had two issues before it: whether survivors’ benefits payable under § 3108 of the no-fault insurance act should be computed on the basis of gross pay or take-home pay reduced by the amount of expenses avoided by reason of the decedent’s death and whether remarriage of a widow reduces the amount of survivor benefits due under that section. Section 3108 defines the survivors’ benefits as calculated from the "contributions of tangible things of economic value” by the deceased. Justice Ryan’s opinion looked to the Legislature’s intent and the UMVARA in answering the first question. In part IIIA of Justice Ryan’s opinion, which all the Justices concurred with, he interpreted § 3108, survivors’ benefits, by comparing it to § 3107(b), work-loss benefits. The definition of work-loss benefits was not an issue on appeal. However, the Court plainly put its judicial mind to the definition of that phrase when it stated: "work loss benefits are limited, by definition, to the loss of wage or salary income”. Miller, supra, 563.