Miller v. State Farm Mutual Automobile Insurance

Levin, J.

(concurring in part, dissenting in part). I concur with Part IIIA of the opinion of the Court, requiring an adjustment for taxes in calculating survivors’ loss benefits under § 3108, and with Part IV, requiring a recomputation of survivors’ benefits upon remarriage of a surviving spouse. I dissent, however, from the conclusion in Part IIIB that no adjustment for the personal expenditures of the decedent need be made. Also, I would not reach the question of what, other than contributions of wages, constitutes "contributions of tangible things of economic value” to survivors under § 3108. The plaintiffs have not alleged or offered evidence of contributions from sources other than wages, and therefore the question is not before us.

The no-fault motor vehicle liability act provides for reimbursement of income lost by the injured person or his family as a result of injury. If the injured person survives the accident, the act provides for reimbursement of his own income loss, measured by the amount of wages he loses while he is disabled ("work loss”). If he does not survive the accident, the act provides for reimbursement of the income lost by his family, measured by the amount they would have received from him for their support.

The Legislature thus used two different measures for two different situations, work loss consist*575ing of income from work the injured person is unable to perform because of his injury where he survives his injury, and lost contributions to the family’s support where he dies. The primary difference between the two is that wages committed exclusively to the personal expenditures of the injured person are part of work loss but are not part of the amount that would have been contributed for the support of the family. What the injured person would have spent on himself could not have been contributed to his family’s support.

The opinion of the Court concludes that these personal expenditures need not be subtracted from total wages in calculating the amount that the injured person who dies would have contributed to his family’s support. Since this subtraction is typically, and in this case, the only difference between the two measures, the Court effectively erases the distinction drawn by the statute and makes lost wages the measure of income loss in both situations.

I dissent because I can see no basis for construing out of the statute a distinction that is clearly there. Had the Legislature intended that lost wages be the measure in both situations, it would not have used two different measures for the two different situations. The rationales advanced by the Court for construing this distinction out of the statute are not persuasive. An analysis of the purposes and antecedents of the survivors’ loss provision indicates that the Legislature intended that the different language result in a different measure.

The first rationale advanced by the Court is based on the legislative history of the act, namely the adoption of the Senate version of the act rather than the substitute offered by the House. *576Both bills defined survivors’ loss as the loss of "contributions” that the deceased would have made to his family, with the House substitute adding the clause "less expenses of the survivors avoided by reason of decedent’s death”. The Court concludes that in adopting the version without a subtraction for expenses of the survivors avoided by the death, the Legislature indicated that no subtraction should be made for the personal expenditures of the deceased in computing survivors’ loss.

The Court acknowledges that we have no evidence of the legislative give and take that led to adoption of the Senate bill rather than that of the House, or of whether this particular difference between the two bills was a factor in that choice, or, if this difference was a factor, what the Legislature intended to accomplish by not including the clause. With so much in doubt, I question whether the mere choice of one bill over another is an adequate basis for negating a distinction clearly present in the language of the act.

Moreover, the language of the "deleted” clause must be strained to make it mean what the Court asserts. Only by straining can the personal expenditures of the deceased be considered "expenses of the survivors avoided by reason of decedent’s death”.

The correct meaning of the clause, one which indicates that it was not intended to refer to the deceased’s personal expenditures, is revealed in the comments to the model act from which the clause was drawn. The example there given is that the clause would require the subtraction from a deceased child’s financial contributions to the family of the family’s expenses in rearing the child.

The Court recognizes that the measure of survi*577vors’ loss under the no-fault act was patterned after the measure of survivors’ loss under wrongful death acts. Under wrongful death acts compensating survivors’ loss, however, the measure of recovery is not total earnings. A reduction must be made for the personal expenditures of the deceased.

Further, the comments to both model acts on which the no-fault act was based state that recovery was intended to be more rigorously confined to actual pecuniary loss than under most wrongful death acts. Failing to subtract the amount of wages the deceased would have spent exclusively on himself, rather than contributed to his family for their support, defeats this intent by allowing recovery of an amount not actually lost.

The second rationale offered by the Court is that the difficulty and disproportionate expense of calculating the reduction for the decedent’s personal expenditures is inconsistent with the legislative purpose of expeditious settlement of claims without complex, time-consuming factual controversies. The use of such a purpose to negate a distinction clearly drawn in the statute establishes a troublesome precedent. Is this Court to review all factual determinations arguably called for under the áct on the basis of their cost effectiveness? That is clearly not the Court’s role.

Moreover, I have difficulty understanding how the Court can reject this calculation as inconsistent with the act’s purpose, when the Court concludes that the act requires a virtually identical calculation when a surviving spouse loses her dependency status upon remarriage. In the latter situation, the Court concludes that the act requires a reduction of survivors’ loss payments by the amount of contributions that the deceased "would *578have made solely for the benefit of the disqualified dependent”. This calculation is analogous to the calculation of the amount that would have been spent solely for the benefit of the deceased, and surely will be no less difficult or time-consuming.

We all agree that the act requires such a calculation as to the disqualified dependent. Such a calculation as to the deceased cannot, consistent with that conclusion, be rejected as contrary to the purposes of the act.

I

A detailed analysis of the Court’s legislative history argument illustrates its weaknesses. The language of the Senate bill was substantially the same as the language enacted: "contributions * * * that * * * dependents of the deceased * * * would have received for support”.1 The House substitute bill provided, in part: "contributions * * * that his survivors would have received from the decedent * * *, less expenses of the survivors avoided by reason of decedent’s death”.2 The Court imputes significance to the adoption of the Senate bill rather, than the House substitute, which had the effect of failing to enact the clause "less expenses of the survivors avoided by reason of decedent’s death”.

A court is on insecure ground when it attempts to derive legislative intent from the enactment, without explanation, of one bill rather than another.3 A court is on somewhat firmer, although *579not solid, ground when it reasons from the express defeat of a bill or amendment.4 Here, however, we do not have an express rejection of the alternative by vote. Nor do we have any evidence that the attention of the Legislature was focused upon this particular difference between the two bills, much less evidence of why the Legislature deleted the clause if indeed the deletion was intentional.

The Court recognizes the lack of explicative floor debate and committee reports, and states:

"The myriad activities that attend the legislative process having run their course, 1972 PA 294 was enacted containing language consistent with that of Senate Bill No. 782 and without the clause * * * which appeared in the House substitute bill.”

As the United States Supreme Court has observed, "[t]he interpretation of statutes cannot safely be made to rest upon mute intermediate legislative maneuvers”.5

Assuming that some legislative intent can be gleaned from the choice of the Senate bill rather than the House substitute, the construction adopted by the Court is not persuasive. First, it requires a strained construction of the clause the Court concludes was purposely deleted. That clause would have required a reduction for "expenses of the survivors avoided by reason of the decedent’s death”. To conclude that, by deleting this clause, the Legislature intended to preclude a reduction for the wages spent on decedent’s personal expenses requires concluding that the Legislature considered the decedent’s personal expenses *580to be "expenses of the survivors”. This is an unwarranted construction, particularly in light of the more reasonable construction, expressly confirmed by the commentary to the model act from which the clause was apparently drawn,6 that "expenses of the survivors” was intended to refer to such things as a parent’s cost in raising a child, which is generally subtracted from the parent’s recovery for lost contributions upon the wrongful death of his or her child.

Second, both bills defined survivors’ loss as the loss of "contributions” that the decedent would have made to his dependents. It is this part of the definition that is critical to the question of whether a subtraction for the decedent’s personal expenditures is required. When consideration of the "less expenses” clause drops out as being irrelevant to this question, the two bills must be seen as virtually identical in their critical language.

Where the decedent had lived apart from his dependents and had made contributions to their support in the form, for example, of monthly checks, the amount of his earnings devoted to his own expenses could not have been a part of his *581contributions. The application of the statutory language in such a situation is clear — the survivors are entitled only to what would actually have been contributed. The Court concludes, however, that when the decedent had been sharing a household with his dependents, the statutory language is to have a different meaning. In such a case, the survivors are entitled not only to what would have been contributed, but also to what would have been devoted to the decedent’s own personal expenses. The statute does not provide for such differential treatment according to whether the decedent had been- living with his dependents.

Third, construing the act to compensate survivors for contributions they would not actually have received is inconsistent with the intent of the act, as evidenced by its antecedents, to rigorously confine the measure of loss to actual pecuniary loss.

The drafters of the Motor Vehicle Basic Protection Insurance Act (MVBPIA)7 and the Uniform Motor Vehicle Accident Reparations Act (UMVARA),8 the two model acts relied upon by the Legislature in drafting the Michigan act, had similar goals in defining "survivors’ loss”. The authors’ comments on § 1.9(e) of the MVBPIA state:

" '[S]urvivors’ loss’ is defined in a way somewhat similar to standards for damages under death acts, but with a more rigorous adherence to genuine economic loss than under most death acts.” (Emphasis supplied.)9

The Commissioners’ Comments to §§ 1(a)(5)(iv) and 1(a)(5)(v) of the UMVARA state:_

*582" 'Survivor’s economic loss’ and 'survivor’s replacement services loss’ are defined in a way analogous to standards for damages for wrongful death except that, as is the case for 'work loss’ and 'replacement services loss,’ allowable items are more rigorously limited to genuine economic loss.” (Emphasis supplied.)10

Fourth, although the Court acknowledges that the Legislature’s reliance on the model acts, as explained by the authors’ comments quoted above, indicates "an intent that survivors’ loss benefits should at least roughly correspond to economic loss damages recoverable under our wrongful death act”, the Court’s construction is clearly at odds with the measure of survivor’s loss under the wrongful death act.

To clarify this point, it is useful to contrast the historical differences between recovery under the survival act and recovery under the wrongful death act.11 Under the survival act, the plaintiff claimed as the representative of the deceased. Since the plaintiff was entitled to recover what the deceased would have received had death not occurred, no reduction for the personal consumption of the deceased was required.12

Under the wrongful death act, the focus shifted to the loss suffered by the survivors by reason of the decedent’s death. This focus on the survivors’ loss is replicated in § 3108. When determining the survivors’ loss, it has long been the law in Michigan, and elsewhere, that the personal expenditures of the decedent must be subtracted. As was explained in Sipes v Michigan CR Co:13_

*583"This is not a suit to recover the loss to decedent’s estate of his prospective earnings, but only to recover the pecuniary loss sustained by his widow and child. Such loss, in no event, could approximate his earnings, for the expense of his own needs would have to be met along with the needs of his family.”

The plain language of the act indicates that a survivor cannot recover what would have been spent on the decedent’s personal expenditures, since such amount could not be contributed to dependents for their support. I would not depart from the most plausible reading of the language in favor of an alternative reading based on "mute intermediate legislative maneuvers”, especially where an analysis of the model act antecedents of § 3108 indicates that the clause at issue had nothing to do with a reduction for the personal expenditures of the decedent.

The Court’s reading of the legislative history requires concluding that the Legislature intended to define survivor’s loss in a manner inconsistent with the standard of damages under wrongful death actions, in spite of the Court’s recognition that the act was patterned after such standards. The most plausible reading of the statutory language, as requiring a reduction for the decedent’s personal expenditures, is consistent with those standards and with the goal, expressed in the commentary to both model acts, to more rigorously confine recovery to genuine economic loss._

*584II

The second reason offered by the Court for its conclusion that the Legislature did not intend a reduction for the decedent’s personal expenditures is the general goal of the no-fault act to provide for the expeditious settlement of claims without complex factual controversies.

I am in full sympathy with the Court’s recognition of the difficulties inherent in such calculation, and of the disproportionate cost of the calculation in light of the small amounts that will normally be subtracted. Since I do not consider the use of statistical evidence of average personal consumption of family members to be consistent with the act’s requirement that the genuine economic loss of individual survivors be determined, I must recognize that the construction of § 3108 which I think correct will often necessitate a time-consuming and difficult factual inquiry.

Expeditious reparation is indeed one of the general purposes of the act. Such general purposes, however, much less our assessment of the wisdom or cost-effectiveness of the Legislature’s choice, cannot justify our reading out of the act a factual determination required by it.

Further, while the Court cites as examples several provisions designed to expedite resolution of claims, it also recognizes that a factual determination of precisely the same character as is involved in determining the amount of income allocable to the decedent’s personal expenditures is required by the act when a spouse loses his or her dependency status upon remarriage:

"[T]he aggregate of survivors’ loss benefits being paid for the benefit of all the decedent’s survivors prior to the disqualification of one of them should be reduced *585only by the amount equal to the contributions of tangible things of economic value that the deceased would have made solely for the benefit of the disqualified dependent.”

The factual determination required by such a reduction is equivalent to that required in calculating the personal expenditures of the deceased, with the personal expenditures of the disqualified dependent substituted for those of the deceased. One cannot, therefore, properly conclude that such a factual determination is necessarily inconsistent with the act’s general purpose of expediting the settlement of claims.

I am persuaded that the Legislature intended that income that would have been committed to the personal expenditures of the decedent should not be considered as an economic loss of the survivors. Indeed, the Court does not argue that the loss of wages that would have been spent on the decedent is actually an economic loss of the survivors. Obviously, the survivors cannot be considered to have lost what they never would have received. To construe § 3108 otherwise defeats the general goal of reducing the cost of no-fault insurance through rigorously confining damages to genuine economic loss.

Where the injured person survives the automobile accident, the Legislature expressly provided for full recovery of lost wages.14 Where the injured person dies, the Legislature did not use lost wages as the measure of damages but, rather, shifted to the survivors’ loss of contributions to their support. The Court in effect rewrites the statute in those cases where the decedent had lived with the dependents to shift the measure back to lost *586wages. This is simply not what the Legislature has provided.

I would hold that survivors’ loss under § 3108 does not include income spent on personal expenditures of the decedent and remand to the trial court for further proceedings consistent with this opinion.

Coleman, C.J., and Kavanagh, J., concurred with Levin, J.

The pertinent section of the Senate bill is quoted in full in fn 5 of the Court’s opinion.

The pertinent section of the House substitute is quoted in full in fn 6 of the Court’s opinion.

Jefferson v United States, 178 F2d 518, 520 (CA 4, 1949), aff'd sub nom Feres v United States, 340 US 135; 71 S Ct 153; 95 L Ed 152 (1950).

Liquor Control Comm v Fraternal Order of Eagles, Aerie No 629, 286 Mich 32, 43-44; 281 NW 427 (1938).

Trailmobile Co v Whirls, 331 US 40, 61; 67 S Ct 982; 91 L Ed 1328 (1947).

The official comments to UMVARA §§ 1(a)(5)(iv) and 1(a)(5)(v), which define "survivor’s economic loss” and "survivor’s replacement services loss” and which use the clause "less expenses of the survivors avoided by reason of decedent’s death”, state:

"It is also necessary to subtract expenses which the survivors avoided by reason of the decedent’s death, although the same avoided expenses cannot be subtracted twice from both survivor’s economic loss and survivor’s replacement services loss. For example, in the case of death of a child who had regularly contributed small personal earnings to his family and performed services in the home, there might be no survivor’s economic loss or survivor’s replacement services loss after the expenses avoided by reason of his death were subtracted from the value of the earnings and the cost of replacement services he would have contributed to the family.” 14 ULA, Civil Procedural and Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, p 55.

See fn 7 of the Court’s opinion.

See fn 8 of the Court’s opinion.

Keeton & O’Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (Little, Brown & Co, 1965), p 400.

See fn 6, supra.

The two actions were combined in 1937, so that both must now be brought under the current wrongful death act. MCL 600.2922; MSA 27A.2922.

Olivier v Houghton County Street-Railway Co, 138 Mich 242; 101 NW 530 (1904).

Sipes v Michigan C R Co, 231 Mich 404, 407-408; 204 NW 84 *583(1925), partially overruled on another issue, Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965). See also 25A CJS, Death, § 101, pp 920-921:

“The amount recoverable is not the loss of the entire earnings, but rather the loss of that portion of the earnings which the beneficiary would have received. Moreover, only net earnings, not gross earnings, are to be considered, that is, the total of the earnings less expenses necessary in the creation of such earnings or income, and less living and other incidental expenses.” (Emphasis supplied.)

MCL 500.3107(b); MSA 24.13107(b).