Introductory Directions to the Court
Instructions
M Civ JI 36.01 No-Fault Auto Negligence: Serious Impairment (To Be Used in Cases in Which 1995 PA 222 Does Not Apply)
M Civ JI 36.01A No-Fault Auto Negligence: Noneconomic Loss Damages for Non-Continuing Serious Impairment Threshold Injury
M Civ JI 36.02 No-Fault Auto Negligence: Mental or Emotional Injury
M Civ JI 36.03 No-Fault Auto Negligence: Permanent Serious Disfigurement
M Civ JI 36.04 No-Fault Auto Negligence: Elements of Proof—Explanation of Noneconomic-Economic Distinction
M Civ JI 36.05 No-Fault Auto Negligence: Burden of Proof—Noneconomic Loss (To Be Used in Cases in Which 1995 PA 222 Does Not Apply)
M Civ JI 36.06 No-Fault Auto Negligence: Burden of Proof—Economic Loss
M Civ JI 36.11 No-Fault Auto Negligence: Serious Impairment of Body Function—Definition (To Be Used in Cases in Which 1995 PA 222 Applies)
M Civ JI 36.15 No-Fault Auto Negligence: Burden of Proof—Economic and/or Noneconomic Loss (To Be Used in Cases in Which 1995 PA 222 Applies)
The instructions in Chapter 36 should be used with applicable instructions in the Negligence section (Section 2), e.g., M Civ JI 10.02 Negligence of Adult—Definition and 15.01 Definition of Proximate Cause, and with M Civ JI 8.01 Meaning of Burden of Proof in the General Instructions section (Section 1).
The tort liability limited by the no-fault law is only such liability as arises out of the defendant’s ownership, operation, maintenance or use of a motor vehicle, not liability that arises out of other conduct. Citizens Insurance Co of America v Tuttle, 411 Mich 536; 309 NW2d 174 (1981) (negligent keeping of cow). See also Schwark v Lilly, 91 Mich App 189; 283 NW2d 684 (1979) (dram shop action); Auto-Owners Insurance Co v Employers Insurance of Wausau, 103 Mich App 682; 303 NW2d 867 (1981) (products liability action); Pustay v Gentelia, 104 Mich App 250; 304 NW2d 539 (1981) (negligent maintenance of parking lot); State Farm Mutual Automobile Insurance Co v Soo Line R Co, 106 Mich App 138; 307 NW2d 434 (1981) (railroad accident). In such cases, the instructions in Chapter 36 are not applicable to a nonmotorist tortfeasor defendant.
Where a tortfeasor’s liability is not limited by the no-fault act, the common-law collateral-source rule has full application. Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984). But see the modifications to the collateral-source rule in 1986 PA 178.
A question currently exists as to whether certain portions of 1986 PA 178 are applicable to third-party tort cases filed under the no-fault statute after October 1, 1986. Because of that uncertainty, the Committee has not drafted any changes to the no-fault instructions dealing with third-party tort cases. The Committee did change the no-fault verdict form to enable the jury to allocate fault among parties, but the Committee has taken no position as to the ramifications of that allocation. One Michigan Court of Appeals panel has agreed there seems to be some question about the applicability of certain provisions of 1986 PA 178 to no-fault third-party tort cases. However, because the panel saw no prejudice to the plaintiff in the verdict form and judgment containing the specific breakdown of past and future damages pursuant to MCL 600.6305, .6306, as amended by 1986 PA 178, the panel declined to consider the question. Miller v Ochampaugh, 191 Mich App 48; 477 NW2d 105 (1991).
A question also currently exists whether certain portions of 1995 PA 161 and 249 are applicable to third-party tort cases filed under the no-fault statute. Public Acts 161 and 249 were enacted during the same session the legislature enacted 1995 PA 222, which redefines the no-fault threshold. Neither 1995 PA 161 nor 1995 PA 249 makes any reference to 1995 PA 222 or to the no-fault statute, and, similarly, 1995 PA 222 makes no reference to the other two public acts. Moreover, in enacting MCL 500.3135(3), amended by 1995 PA 222, the legislature retained in the tort abrogation portion of that section prefatory language identical to that in the original no-fault statute that makes limitations on tort recovery stated in the no-fault statute applicable “[n]otwithstanding any other provision of law.” For these reasons, the Committee has not drafted any changes to the no-fault instructions or verdict forms in response to 1995 PA 161 or 249.
Effective March 28, 1996, a tortfeasor is liable for damages up to $500 to motor vehicles to the extent the damages are not covered by insurance. MCL 500.3135(3)(d). (Before March 28, 1996, the limitation was $400.) The tortfeasor is also liable for intentionally caused harm to persons or property. MCL 500.3135(3)(a).
1995 PA 222 introduced two limitations on the recovery of damages for noneconomic loss. First, a plaintiff who is more than 50 percent at fault may not recover noneconomic loss damages. MCL 500.3135(2)(b). Second, a plaintiff operating his or her own vehicle at the time of injury who does not have in effect for that vehicle no-fault insurance required by statute is precluded from recovering noneconomic loss damages. MCL 500.3135(2)(c). Neither of these provisions bar a plaintiff’s claim for excess economic loss damages.
The no-fault threshold of serious impairment is applicable in a suit against a governmental agency pursuant to the motor vehicle exception to the governmental immunity act. Hardy v County of Oakland, 461 Mich 561; 607 NW2d 718 (2000). TOP
The law in Michigan provides that plaintiff may recover *(noneconomic loss) damages in this case if [he / she] suffered serious impairment of a body function. Based upon the evidence in this case, you must decide:
- whether the injuries sustained by plaintiff in the accident impaired one or more body functions, and
- whether that impairment of a body function was serious.
In determining whether the impairment of a body function was serious, you should consider such factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.
An impairment need not be permanent to be serious.
The terms “serious,” “impairment,” and “body function” have no special or technical meaning in the law and should be considered by you in the ordinary sense of their common usage.
Note on Use
This instruction should be used only for cases in which the 1995 amendments to the no-fault statute do not apply. See 1995 PA 222. For cases in which 1995 PA 222 applies, M Civ JI 36.11 should be used. 1995 PA 222 added a new definition of serious impairment of body function and makes the issue of serious impairment a question of law in certain circumstances. For a discussion of these changes, see the use note and comment accompanying M Civ JI 36.11.
For cases in which 1995 PA 222 does not apply, the issue of serious impairment is a jury question whenever evidence would cause reasonable minds to differ, even though there is no material factual dispute as to the nature and extent of the plaintiff’s injuries. DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986).
*The parenthetical phrase “noneconomic loss” should be included in the instruction if plaintiff claims economic loss in addition to noneconomic loss. Under MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)), serious impairment need not be proven to recover economic loss damages in excess of no-fault benefits. Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982). Damages for loss of earning capacity are not recoverable in tort under the no-fault act. Loss of earnings, however, is an economic loss damage, and as such is recoverable in tort if it is in excess of no-fault benefits received for “work loss” as that term is defined in MCL 500.3107–.3110. Work loss as defined in those sections does not include loss of earning capacity. Argenta v Shahan (and Ouellette v Kenealy) 424 Mich 83; 378 NW2d 470 (1985)
If mental or emotional injury is at issue, M Civ JI 36.02 should be given in addition to this instruction.
Comment
Before the passage of 1995 PA 222, the phrase “serious impairment of body function” did not require impairment of an important body function. DiFranco. The new legislation defines serious impairment to require impairment of an important body function. MCL 500.3135(7).
An impairment need not be permanent to be serious. DiFranco.
It is error to instruct the jury that “serious impairment means impairment of more than ordinary severity.” Karas v White, 101 Mich App 208; 300 NW2d 320 (1980); Smith v Sutherland, 93 Mich App 24; 285 NW2d 784 (1979).
It is also error to instruct the jury regarding death and permanent serious disfigurement if the only issue is whether the plaintiff suffered a serious impairment. Karas; Argenta v Shahan, 135 Mich App 477; 354 NW2d 796 (1984), rev’d on other grounds, 424 Mich 83; 378 NW2d 470 (1985).
The Michigan Supreme Court has made it clear that the threshold of serious impairment is not a limitation that precludes recovery of damages for noneconomic loss where a plaintiff ceases to suffer from a serious impairment. Incarnati v Savage (and Byer v Smith), 419 Mich 541; 357 NW2d 644 (1984). See M Civ JI 36.01A.
History
M Civ JI 36.01 was added November 1980.
Amended January 1984, October 1987. TOP
If you find plaintiff suffered serious impairment of *[a body function 1 / body function 2], but [his / her] injury has ceased, or may in the future cease to be a serious impairment of *[a body function 1 / body function 2], that fact will not relieve defendant from liability for any of the noneconomic loss damages suffered by plaintiff as a proximate result of defendant’s negligence.
Note on Use
*Use bracketed phrase number 2 for cases controlled by 1995 PA 222 and bracketed phrase number 1 for cases not controlled by this statute. The definition of serious impairment in 1995 PA 222 applies to cases filed on or after March 28, 1996. May v Sommerfield, 239 Mich App 197; 607 NW2d 422 (1999).
Comment
Incarnati v Savage (and Byer v Smith), 419 Mich 541; 357 NW2d 644 (1984); DiFranco v Picard, 427 Mich 32, 42 n6; 398 NW2d 896, 902 n6 (1986).
History
M Civ JI 36.01A was added September 1988.
Amended February 2001. TOP
The operation of the mind and of the nervous system are body functions. Mental or emotional injury which is caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of *[a body function 1 / body function 2].
Note on Use
*Use bracketed phrase number 2 for cases controlled by 1995 PA 222 and bracketed phrase number 1 for cases not controlled by this statute. The definition of serious impairment in 1995 PA 222 applies to cases filed on or after March 28, 1996. May v Sommerfield, 239 Mich App 197; 607 NW2d 422 (1999).
Comment
See Luce v Gerow, 89 Mich App 546; 280 NW2d 592 (1979).
History
M Civ JI 36.02 was added November 1980.
Amended February 2001. TOP
The law in Michigan provides that plaintiff may recover *(noneconomic loss) damages in this case if [he / she] suffered permanent serious disfigurement. The term “permanent serious disfigurement” should be considered to have its ordinary meaning as those words are commonly used. Based upon the evidence in this case, you must decide whether plaintiff suffered disfigurement and, if so, whether that disfigurement is both serious and permanent.
Note on Use
*The parenthetical phrase “noneconomic loss” should be included in the instruction if plaintiff claims economic loss in addition to noneconomic loss. Under MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)), the plaintiff need not prove permanent serious disfigurement to recover economic loss damages in excess of no-fault benefits.
1995 PA 222 amended the no-fault statute to provide that the issue of permanent serious disfigurement is a question of law if the trial judge finds either that (1) there is no factual dispute concerning the nature and extent of the person’s injuries, or (2) there is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination of whether the person has suffered permanent serious disfigurement. MCL 500.3135(2)(a). (This provision applies to cases filed on or after July 26, 1996.) If 1995 PA 222 applies to the case, but the case does not fall into either of these categories, then permanent serious disfigurement is a jury question and this instruction should be given.
For cases in which 1995 PA 222 does not apply, the issue of permanent serious disfigurement is a jury question whenever evidence would cause reasonable minds to differ, even though there is no material factual dispute as to the nature and extent of the plaintiff’s injuries. Morse v Loomis, 158 Mich App 519; 405 NW2d 404 (1987); Owens v Detroit, 163 Mich App 134; 413 NW2d 679 (1987). See also Earls v Herrick, 107 Mich App 657; 309 NW2d 694 (1981).
History
M Civ JI 36.03 was added November 1980. TOP
The plaintiff claims two different types or classes of damages in this case. The elements which the plaintiff has the burden of proving with respect to each type of damages are somewhat different. The first type or class of damages is generally referred to as “noneconomic” loss damages and consists of such things as [Insert those applicable noneconomic loss damages for which the plaintiff seeks recovery in this case].
The second type or class of damages sought by plaintiff is generally referred to as “economic” loss damages and consists of [For insured defendants. insert those applicable economic loss damages suffered by the plaintiff in excess of compensable no-fault benefits for which plaintiff seeks recovery—e.g., work loss during the first three years in excess of no-fault benefits, all work loss beyond three years, excess replacement service expenses, etc. For uninsured defendants, insert any economic loss damages.].
As I indicated, what the plaintiff must prove differs somewhat depending on which type of damages claim is being considered—economic or noneconomic loss damages. I will now instruct you regarding the elements which the plaintiff must prove.
Note on Use
Both insured and uninsured motorist tortfeasors have immunity from tort liability for noneconomic loss damages, except where the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement. Auto Club Insurance Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). However, the uninsured motorist tortfeasor (unlike the insured motorist tortfeasor) has no tort immunity for economic loss damages. Hill.
Under MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)), serious impairment need not be proven to recover economic loss damages in excess of no-fault benefits. Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982); Cochran v Myers, 146 Mich App 729; 381 NW2d 800 (1985); lv denied, 426 Mich 867; 387 NW2d 387 (1986). Damages for loss of earning capacity are not recoverable in tort under the no-fault act. Loss of earnings, however, is an economic loss damage, and as such is recoverable in tort if it is in excess of no-fault benefits received for “work loss” as that term is defined in MCL 500.3107–.3110. “Work loss” as defined in those sections does not include loss of earning capacity. Argenta v Shahan (and Ouellette v Kenealy), 424 Mich 83; 378 NW2d 470 (1985).
This instruction should be given in those cases where the plaintiff is seeking to recover for both economic and noneconomic losses. It should be read immediately before the burden of proof instructions with regard to noneconomic and economic loss damages.
History
M Civ JI 36.04 was added November 1980.
Amended September 1989. TOP
*(As to plaintiff’s claim for noneconomic loss damages,) the plaintiff has the burden of proof on each of the following:
- that the defendant was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions;
- that the plaintiff was injured;
- that the negligence of the defendant was a proximate cause of plaintiff’s injury;
- that plaintiff’s injury resulted in [death / serious impairment of a body function / or / permanent serious disfigurement].
†(The defendant has the burden of proof on [his / her] claim that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions, and that such negligence was a proximate cause of plaintiff’s [injury / death].)
‡(Your verdict will be for the plaintiff if defendant was negligent, and plaintiff was injured, and defendant’s negligence was a proximate cause of plaintiff’s injury, and plaintiff’s injury resulted in [death / serious impairment of a body function / or / permanent serious disfigurement].)
‡(Your verdict will be for the defendant if defendant was not negligent, or, if negligent, plaintiff was not injured, or if defendant’s negligence was not a proximate cause of plaintiff’s injury, or if plaintiff’s injury did not result in [death / serious impairment of a body function / or / permanent serious disfigurement].)
†(If you find that both parties were negligent, and that plaintiff was injured and that the negligence of both parties was a proximate cause of plaintiff’s injury, and that plaintiff’s injury resulted in [death / serious impairment of a body function / or / permanent serious disfigurement], then you must determine the degree of such negligence, expressed as a percentage, attributable to the plaintiff. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.)
The Court will furnish you with a Special Verdict Form that will list the questions you must answer. Your answers to the questions in the Special Verdict Form will constitute your verdict.
Note on Use
This instruction should only be used for cases in which the 1995 amendments to the no-fault statute do not apply. See M Civ JI 36.15 for a discussion as to when 1995 PA applies.
If the injury resulted in death, the words “plaintiff’s decedent” should be substituted where appropriate.
Both insured and uninsured motorist tortfeasors have immunity from tort liability for noneconomic loss damages, except where the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. Auto Club Insurance Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). However, the uninsured motorist tortfeasor (unlike the insured motorist tortfeasor) has no tort immunity for economic loss damages. Hill.
*The phrase in parentheses should only be given if the case includes both economic and noneconomic loss damages.
†If comparative negligence is not an issue in the case, the paragraph concerning defendant’s burden of proof and the next-to-last paragraph of this instruction should not be read to the jury.
‡The two parenthetical paragraphs beginning with the words “Your verdict” are not necessary if a special verdict form is used.
Comment
The no-fault law has not abolished the common law action for loss of consortium by the spouse of a person who receives above-threshold injuries. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309 NW2d 163 (1981).
History
M Civ JI 36.05 was added November 1980.
Amended January 1984, November 1995. TOP
*(As to plaintiff’s claim for economic loss damages,) the plaintiff has the burden of proof on each of the following:
- that the defendant was negligent in one or more of the ways claimed by the plaintiff as stated to you in these instructions
- that the plaintiff sustained damages consisting of [For insured defendants, insert those applicable economic loss damages suffered by the plaintiff in excess of compensable no-fault benefits for which plaintiff seeks recovery—e.g., work loss during the first three years in excess of no-fault benefits, all work loss beyond three years, excess replacement service expenses, etc. For uninsured defendants, insert any economic loss damages.]
- that the negligence of the defendant was a proximate cause of plaintiff’s damages
†(The defendant has the burden of proof on [his / her] claim that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions, and that such negligence was a proximate contributing cause of plaintiff’s damages.)
‡(Your verdict will be for the plaintiff if [he / she] sustained damages consisting of [description of allowable economic losses sought by plaintiff] and defendant was negligent, and such negligence was a proximate cause of plaintiff’s damages.)
‡(Your verdict will be for the defendant if plaintiff did not sustain damages consisting of [description of allowable economic losses sought by plaintiff], or if the defendant was not negligent, or, if negligent, such negligence was not a proximate cause of plaintiff’s damages.)
†(If you find that each party was negligent and that the negligence of each party was a proximate cause of plaintiff’s damages, then you must determine the degree of such negligence, expressed as a percentage, attributable to the plaintiff. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.)
The Court will furnish you with a Special Verdict Form that will list the questions you must answer. Your answers to the questions will constitute your verdict.
Note on Use
If the injury resulted in death, the words, “plaintiff’s decedent” should be substituted where appropriate.
Both insured and uninsured motorist tortfeasors have immunity from tort liability for noneconomic loss damages, except where the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. Auto Club Insurance Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). However, the uninsured motorist tortfeasor (unlike the insured motorist tortfeasor) has no tort immunity for economic loss damages. Hill.
*The phrase in parentheses should only be given if the case includes both economic and noneconomic loss damages.
See MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)) for allowable economic loss damages.
†If comparative negligence is not an issue in the case, the paragraph concerning defendant’s burden of proof and the next-to-last paragraph of this instruction should not be read to the jury.
‡The two parenthetical paragraphs beginning with the words “Your verdict” are not necessary if a special verdict form is used.
History
M Civ JI 36.06 was added November 1980.
Amended September 1989, November 1995. TOP
One of the elements plaintiff must prove in order to recover noneconomic loss damages in this case is that [he / she] sustained a serious impairment of body function.
Serious impairment of body function means an objectively manifested impairment of an important body function that affects the plaintiff’s general ability to lead [his / her] normal life. An impairment does not have to be permanent in order to be a serious impairment of body function.
In order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis.
Note on Use
1995 PA 222 amended the no-fault statute to provide that the issue of serious impairment of body function is a question of law if the trial judge finds either that (1) there is no factual dispute concerning the nature and extent of the person’s injuries, or (2) there is a factual dispute concerning the nature and extent of the person’s injuries, but the dispute is not material to the determination of whether the person suffered serious impairment of body function. MCL 500.3135(2)(a). In cases which do not fall into either of these categories, serious impairment of body function is a jury question and this instruction should be given. The amended statute specifically provides that for a closed-head injury, a question of fact is created if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury. MCL 500.3135(2).
*The definition of serious impairment in 1995 PA 222 applies to cases filed on or after July 26, 1996. MCL 500.3135(2).
If the claim involves economic and noneconomic damages, M Civ JI 36.04 No-Fault Auto Negligence: Elements of Proof—Explanation of Noneconomic-Economic Distinction should be given before this instruction.
If the trial courts makes any preliminary rulings as a matter of law, e.g., that a body function is "important," this instruction must be modified accordingly.
If mental or emotional injury is an issue, M Civ JI 36.02 should be given in addition to this instruction.
Comment
MCL 500.3135(7); Kreiner v Fischer, 471 Mich 109 (2004). In Jackson v Nelson, 252 Mich App 643, ___ NW2d ___ (2002), the Michigan Court of Appeals reversed the trial court for failure to give SJI2d 36.11, which contained the same definition of "objectively manifested" as M Civ JI 36.11 contains, and specifically approved that definition.
1995 PA 222 added a new definition of serious impairment of body function in the no-fault statute. The statute as amended defines serious impairment of body function as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” MCL 500.3135(7). The statutory definition sets forth three requirements. First, there must be an "objectively manifested impairment." Second, the impairment must be "of an important body function." Third, the impairment must be one that "affects the person's general ability to lead his or her normal life." See Kreiner, supra.
Kern v Blethen-Coluni, 240 Mich App 333; 612 NW2d 838 (2000), criticized the final paragraph of the predecessor version of M Civ JI 36.11 which stated that “[t]he phrase important body function has no special or technical meaning in the law and should be considered by you in the ordinary sense of its common usage.” The no-fault statute does not define the phrase “important body function,” and the case law has not offered an all-encompassing definition. However, in deciding whether a body function is “important” as a matter of law, the court should consider the following cases: walking, Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982); LaHousse v Hess, 125 Mich App 14; 336 NW2d 219 (1983); Kern; movement of the back, Harris v Lemicex, 152 Mich App 149; 393 NW2d 559 (1986); Sherrell v Bugaski, 140 Mich App 708; 364 NW2d 684 (1984); movement of the neck and hand, Meklir v Bigham, 147 Mich App 716; 338 NW2d 95 (1985); heart function, Kanaziz v Rounds, 153 Mich App 180; 395 NW2d 278 (1986); breathing and respiration, Range v Gorosh (After Remand), 140 Mich App 712; 364 NW2d 686 (1984).
It is error to instruct the jury that “serious impairment means impairment of more than ordinary severity.” Karas v White, 101 Mich App 208; 300 NW2d 320 (1980); Smith v Sutherland, 93 Mich App 24; 285 NW2d 784 (1979).
It is also error to instruct the jury regarding death and permanent serious disfigurement if the only issue is whether the plaintiff suffered a serious impairment. Karas; Argenta v Shahan, 135 Mich App 477; 354 NW2d 796 (1984), rev’d on other grounds, 424 Mich 83; 378 NW2d 470 (1985).
The Michigan Supreme Court has made it clear that the threshold of serious impairment is not a limitation that precludes recovery of damages for noneconomic loss where a plaintiff ceases to suffer from a serious impairment. Incarnati v Savage(and Byer v Smith), 419 Mich 541; 357 NW2d 644 (1984). See M Civ JI 36.01A.
History
M Civ JI 36.11 was added June 1997.
Amended December 1999, February 2001. TOP
In order to recover damages for either economic or noneconomic loss, plaintiff has the burden of proof on each of the following three elements:
- that the defendant was negligent;
- that the plaintiff was injured;
- that the negligence of the defendant was a proximate cause of injury to the plaintiff.
|
ECONOMIC LOSS |
If you decide that all of these have been proved, then (subject to the rule of comparative negligence, which I will explain) plaintiff is entitled to recover damages for economic loss resulting from that injury, including: [For insured defendants, insert those applicable economic loss damages suffered by the plaintiff in excess of compensable no-fault benefits for which plaintiff seeks recovery—e.g., work loss during the first three years in excess of no-fault benefits, all work loss beyond three years, excess replacement service expenses, etc. For uninsured defendants, insert any economic loss damages.], that you determine the plaintiff has incurred.
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NONECONOMIC LOSS |
As to plaintiff’s claim for damages for noneconomic loss, plaintiff has the burden of proving a fourth element:
d. that plaintiff’s injury resulted in [death / serious impairment of body function / or / permanent serious disfigurement].
If you decide that all four elements have been proved, then (subject to the rule of comparative negligence, which I will explain) plaintiff is entitled to recover damages for noneconomic loss that you determine the plaintiff has sustained as a result of that [death / injury].
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COMPARATIVE NEGLIGENCE |
The defendant has the burden of proof on [his / her] claim that the plaintiff was negligent and that such negligence was a proximate cause of plaintiff’s [injury / death].
If your verdict is for the plaintiff and you find that the negligence of both parties was a proximate cause of plaintiff’s [injury / death], then you must determine the degree of such negligence, expressed as a percentage, attributable to each party.
Negligence on the part of the plaintiff does not bar recovery by plaintiff against the defendant for damages for economic loss. However, the percentage of negligence attributable to the plaintiff will be used by the court to reduce the amount of damages for economic loss that you find were sustained by plaintiff.
Negligence on the part of the plaintiff does not bar recovery by plaintiff against the defendant for damages for noneconomic loss unless plaintiff’s negligence is more than 50 percent. If the plaintiff’s negligence is more than 50 percent, your verdict will be for the defendant as to plaintiff’s claim for damages for noneconomic loss. Where the plaintiff’s negligence is 50 percent or less, the percentage of negligence attributable to plaintiff will be used by the court to reduce the amount of damages for noneconomic loss that you find were sustained by the plaintiff.
The Court will furnish a Special Verdict Form that will list the questions you must answer. Your answers to the questions in the verdict form will constitute your verdict.
Note on Use
*1995 PA 222 contains a definition of “serious impairment of body function” that applies to all cases filed on or after March 28, 1996. See May v Sommerfield, 239 Mich App 197; 607 NW2d 422 (1999). 1995 PA 222 also bars recovery of damages for noneconomic loss if (1) a plaintiff is more than 50 percent at fault or (2) a plaintiff is uninsured and is operating his or her own vehicle at the time of the injury. MCL 500.3135(2)(b), (c). These two provisions are effective for cases filed on or after July 26, 1996, but they do not affect a plaintiff’s right to recover excess economic loss damages.
This instruction applies to a case that includes claims for damages for both economic and noneconomic loss. If the case involves only one of these types of damages, this instruction must be modified. For example, if only noneconomic loss damages are claimed, the trial judge should read the four elements a.–d. together; delete the section titled “Economic Loss”; and delete the third-from-last paragraph of this instruction. This instruction should also be modified by deleting the first four paragraphs under the section titled “Comparative Negligence” if plaintiff’s negligence is not an issue in the case.
An uninsured plaintiff operating his or her own vehicle at the time of the injury is not entitled to noneconomic loss damages, but may recover excess economic loss damages. See MCL 500.3135(2)(c), added by 1995 PA 222.
Both insured and uninsured motorist tortfeasors have immunity from tort liability for noneconomic loss damages, except where the injured person has suffered death, serious impairment of a body function, or permanent serious disfigurement. Auto Club Insurance Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). However, the uninsured motorist tortfeasor (unlike the insured motorist tortfeasor) has no tort immunity for economic loss damages. Hill.
See MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)) for allowable economic loss damages.
Comment
The no-fault law has not abolished the common law action for loss of consortium by the spouse of a person who receives above-threshold injuries. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309 NW2d 163 (1981).
A plaintiff who is more than 50 percent at fault is not entitled to noneconomic loss damages. MCL 500.3135(2)(b), added by 1995 PA 222.
History
M Civ JI 36.15 was added June 1997.
Amended December 1999. TOP