Swartout v. State Farm Mutual Automobile Insurance

J. H. Gillis, J.

(dissenting). Although the majority has cited the appropriate statute and case law, I disagree with the result it has reached.11 believe that the facts in this case are similar to those in Gerardi v Buckeye Union Ins Co, 89 Mich App 90; 279 NW2d 588 (1979). In that case, the plaintiff, a full-time nursing student, was injured in an automobile accident. The injuries suffered by the Gerardi plaintiff caused her to delay her studies by one year. She sued the defendant no-fault insurer *356for the income lost as a result of this delay. 89 Mich App 92.

In rejecting the plaintiffs position, this Court noted that in amending the work-loss provision to provide a method by which benefits could be computed for workers unemployed at the time of their injury, MCL 500.3107a; MSA 24.13107(1), the Legislature "emphasized that the thrust of the work-loss provision in all cases was to calculate loss based on actual earnings, not future possibilities.” 89 Mich App 94. The Court concluded:

A fair reading of the complaint reveals that the plaintiff is in fact alleging a loss of wages she could have earned in the future as a registered nurse, but for the delay in her studies. As pointed out in Nawrocki [v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978)], such an allegation states a claim for recovery of loss of earning capacity, a tort recovery eliminated by the no-fault act. [89 Mich App 95.]

Plaintiff here distinguishes Gerardi, supra, on two grounds. First, plaintiff claims the Gerardi plaintiff had one additional year of studies beyond the academic year, during which the accident occurred, before graduation. Second, unlike the claimant in Gerardi, plaintiff claims she has established that she would have received income working as a nurse for the period for which she argues that she is entitled to work-loss benefits. I agree that these facts prevent reliance upon Gerardi without further analysis; however, I believe the result reached by the majority is not mandated by these factual distinctions.

In this case, defendant argues that plaintiff cannot obtain work-loss benefits until she has actually engaged in employment and has received wages for which she now claims a loss. An expec*357tation of employment, defendant argues, no matter how seemingly certain, is still nothing more than one’s future earning capacity. I note that to construe § 3107(b) as suggested by defendant ensures that benefits will be paid only for that period of time during which a claimant is incapacitated by his or her injuries. For example, if plaintiff had been employed as a nurse at the time of her accident and, assuming her injuries would have required two months of recuperation, plaintiff would receive work loss benefits for only two months (i.e., the time which had lapsed before she regained her ability to earn wages).

However, a different result follows in the present case if plaintiff’s analysis is used. Assuming again a two-month period of recovery, plaintiff would be physically capable of working in June, 1981. But, because she had dropped out of school, she would not be able to obtain employment as a nurse until she received her degree. If the academic calendar requires her to wait until spring to take the necessary classes, plaintiff’s receipt of her nursing degree is delayed almost one year. Thus, under plaintiff’s proposed resolution of this issue, the defendant is required to pay work-loss benefits for approximately one year when in fact the injury itself prevented plaintiff from working for only two months. Further, despite identical injuries and identical recuperation periods in the two hypotheticals, the benefits payable are dramatically different. The reason for this difference is that the claimant in the second hypothetical sought benefits not for a period during which her injury caused a direct loss of income from work, but rather for a period during which her ability to obtain nursing employment was delayed.

This distinction leads me to conclude that what plaintiff seeks to recover is not benefits for "ac*358tual” loss of income from work she would have performed had she not been injured, Ouellette v Kenealy, 424 Mich 83, 87; 378 NW2d 470 (1985), but rather for a "loss of wages she could have earned in the future” as a licensed practical nurse but for the delay in obtaining a degree necessitated by the injuries. Gerardi, supra p 95. Therefore, I conclude that plaintiffs claim is properly characterized as an attempt to recover for loss of future earning capacity, and on that basis I would affirm the decision of the trial court.