Instructions
M Civ JI 53.01 Statutory Mortality Table—Injury Case [Instruction Deleted]
M Civ JI 53.02 Statutory Mortality Table—Death Case [Instruction Deleted]
M Civ JI 53.03 Future Damages (Non-personal Injury Action)—Reduction to Present Cash Value
M Civ JI 53.03A Future Damages (Personal Injury Action)— Reduction to Present Cash Value
M Civ JI 53.04 Interest—As Part of Damages
M Civ JI 53.05 Mitigation of Damages—Failure to Exercise Ordinary Care
M Civ JI 53.06 Effect of Inflation on Future Damages
Comment
The mortality table that was part of MCL 500.834 was deleted by 1994 PA 226.
In the absence of a stipulation as to the mortality table to be used, testimony may be necessary.
Tables of life expectancy for Michigan residents are available from the Michigan Department of Community Health, Division for Vital Records and Health Statistics. The tables may be accessed electronically at http://www.michigan.gov/mdch.
Life expectancy tables for the United States and individual states are available from the United States Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics. The tables may be accessed electronically at http://www.cdc.gov/nchs/. The United States Department of Health and Human Services also publishes U.S. Decennial Life Tables containing information for the various states. Life expectancy tables can also be found in the Statistical Abstract of the United States published by the United States Department of Commerce.
There may be other sources of mortality tables.
History
M Civ JI 53.01 was SJI 34.01.
Amended January 1992.
Deleted October 1999. TOP
Comment
The mortality table that was part of MCL 500.834 was deleted by 1994 PA 226.
In the absence of a stipulation as to the mortality table to be used, testimony may be necessary.
Tables of life expectancy for Michigan residents are available from the Michigan Department of Community Health, Division for Vital Records and Health Statistics. The tables may be accessed electronically at http://www.michigan.gov/mdch.
Life expectancy tables for the United States and individual states are available from the United States Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics. The tables may be accessed electronically at http://www.cdc.gov/nchs/. The United States Department of Health and Human Services also publishes U.S. Decennial Life Tables containing information for the various states. Life expectancy tables can also be found in the Statistical Abstract of the United States published by the United States Department of Commerce.
There may be other sources of mortality tables.
History
M Civ JI 53.02 was SJI 34.02.
Amended March 1991, January 1992.
Deleted October 1999. TOP
If you decide plaintiff will sustain damages in the future, you must reduce that amount to its present cash value. The amount of damages you determine [he / she] will sustain the first year is to be divided by 1.05. The amount of damages you determine [he / she] will sustain the second year is to be divided by 1.10. The amount [he / she] will sustain the third year is to be divided by 1.15. You then continue to use a similar procedure for each additional year you determine [he / she] will sustain damages. The total of your yearly computations is the present cash value of plaintiff's future damages.
Note on Use
This instruction is not for use in personal injury actions filed on or after October 1, 1986. MCL 600.6306; 1986 PA 178, §3. In personal injury actions, MCivJI 53.03A should be given.
The jury should be instructed to reduce future damages to present cash value in cases other than personal injury actions. Nation v WDE Electric Co, 454 Mich 489; 563 NW2d 233 (1997). In the absence of a stipulation to the contrary, the trial court is required to instruct the jury to reduce future damages to present cash value. Freeman v Lanning Corp, 61 Mich App 527 (1975); Goins v Ford Motor Co, 131 Mich App 185; 347 NW2d 184 (1983); Lagalo v Allied Corporation (On Remand), 233 Mich App 514; 592 NW2d 786 (1999).
The reduction to present value called for by this instruction is based on a 5 percent simple interest calculation. This rate has been approved in numerous cases. See cases collected in Pontiac School District v Miller, Canfield, Paddock & Stone, 221 Mich App 602; 563 NW2d 693 (1997). In cases in which the court determines that a 5 percent simple interest rate is not appropriate, this instruction should be revised. See Pontiac School District.
Comment
The obligation to reduce future damages to present cash value in cases other than personal injury actions filed on or after October 1, 1986 remains with the jury. Nation. Non-personal injury action cases have approved the 5 percent rate in this instruction. See, e.g., Goins; Foehr v Republic Automotive Parts, 212 Mich App 663; 538 NW2d 420 (1995). But see, Pontiac School District.
History
M Civ JI 53.03 was SJI 34.03.
Amended April 1, 2004. TOP
If you decide that plaintiff is entitled to an award of future damages, you should award the full value of future damages as you determine them. You should not reduce any award of future damages to present cash value.
Note on Use
This instruction is for use in personal injury actions. MCL 600.6306; 1986 PA 178, § 3. In personal injury actions, the trial judge, rather than the jury, is required to calculate the reduction of future damages to present cash value using the statutory rate of 5 percent per year for each year in which those damages accrue. MCL 600.6306(2). The calculation must be made using simple interest. Nation v WDE Electric Co, 454 Mich 489; 563 NW2d 233 (1997); Lagalo v Allied Corporation (On Remand), 233 Mich App 514; 592 NW2d 786 (1999). Pursuant to MCL 600.6311, future damages awarded to a plaintiff who is 60 years of age or older at the time of judgment are not reduced to present value.
History
This instruction was added April 1, 2004. TOP
If you decide plaintiff has suffered damages, you should determine when those damages began, and add interest from then to [date complaint filed] [at a rate of [insert rate] percent per year/ at a rate per year that you decide is appropriate].
Note on Use
This instruction does not include a rate of interest, which may differ depending on the type of action. If an issue about rate of interest is raised, the judge will have to decide whether the law requires the judge to give the jury a stated interest rate, or whether it should be left to the jury to determine a reasonable interest rate. See the comment below.
In non-personal injury actions, plaintiffs' attorneys commonly agree that the trial judge not give this instruction in exchange for defense attorneys' agreement that the judge not give MCivJI 53.03 Future Damages-Reduction to Present Cash Value, sometimes with the further agreement that the judge will make these computations after the jury returns its verdict. If the trial judge is to make these computations, the jury will still have to determine when the pre-complaint damages accrued and when the future damages will be sustained. (Note that in personal injury actions, MCivJI 53.03 is not given to the jury because the trial judge reduces future damages to present cash value. See comment to MCivJI 53.03.)
Comment
In Currie v Fiting, 375 Mich 440, 454-455; 134 NW2d 611, 616 (1965) (a wrongful death action), the Michigan Supreme Court held that in tort actions where a claim accrues as of a certain date and can be ascertained or computed as of that date, interest is properly awarded as a part of damages from that date to the date of verdict. While the Currie case was not tried to a jury, the Court went on to comment that in a jury trial, the jury should be instructed to ascertain the date damages accrued and add interest from that date to the date of its verdict. When Currie was decided, the judgment interest statute (MCL 600.6013) made a defendant liable for interest from the date of judgment forward-to the date judgment is satisfied. Shortly after Currie was decided, the statute was amended to prescribe interest from the date of filing of the complaint. Cases decided subsequent to the statutory amendment allow interest as part of damages only to the date the complaint is filed. Vannoy v City of Warren, 26 Mich App 283, 288-289; 182 NW2d 65, 68-69 (1970), aff'd on other grounds, 386 Mich 686; 194 NW2d 304 (1972).
The common law rule that interest may be awarded as an element of damages to compensate for lost use of funds has early origins in Michigan jurisprudence. Snow v Nowlin, 43 Mich 383; 5 NW 443 (1880). While MCivJI 53.04 was adopted with personal injury/wrongful death cases in mind, juries have been instructed to include pre-complaint (formerly pre-judgment) interest in other tort cases. Snow (misrepresentation); Capital Mortgage Corp v Coopers & Lybrand, 142 Mich App 531; 369 NW2d 922 (1985) (accountant negligence; but plaintiff failed to show when the loss accrued); Coan v Brownstown Township, 126 Mich 626; 86 NW130 (1901) (negligence-property damage).
In Vannoy (a wrongful death action),the court instructed the jury to add interest as part of damages at the rate of 5 percent per year from the date each type of damages was incurred. The 5 percent rate was not in dispute, but the appellate court did comment that the judgment interest statute, MCL 600.6013 (statutory rate was then 5% for judgments not on written instruments), and interest as part of damages serve the same function to compensate for loss of use of funds. Vannoy, 26 Mich App 283, 288. (Interest rates in the present version of MCL 600.6013 vary depending on the nature of the action and the date the complaint was filed, and are affected by offers of settlement.) An analogy to the reduction of future damages to present worth was noted in Currie, but there was no indication of the rate of interest used by the trial court in awarding interest as part of damages and the Supreme Court did not discuss rate of interest. As the comment to MCivJI 53.03 Future Damages -- Reduction to Present Cash Value indicates, many decisions have approved a rate of 5 percent in reducing future damages to present worth. (Under present law, in personal injury actions, the judge, not the jury reduces future damages to present worth using a 5 percent rate. MCL 600.6306(2). In Baxter v Woodward, 191 Mich 379; 158 NW 137 (1916) (a conversion case), the Court approved the trial court's instruction to the jury to award the market value of the item at the date of conversion plus interest at 5 percent, but did not specifically discuss the rate used.
Pre-complaint interest in certain contract cases is covered by statute (MCL 438.7) but that does not preclude common law interest as part of damages in cases in which MCL 438.7 is not applicable. Gordon Sel-Way, Inc v Spence Brothers, Inc, 438 Mich 488, 499 n 9; 475 NW2d 704 (1991). The 5 percent legal rate under MCL 438.31 must be used when awarding interest under MCL 438.7. Gordon, 438 Mich 488, 505. But there is no indication that the 5 percent rate is mandatory in contract cases in which common law interest as part of damages is awarded. See the discussion of pre-complaint statutory and common law interest including rates in Manley, Bennett, McDonald & Co v St Paul Fire & Marine Ins Co, 821 F Supp 1225 (ED Mich 1993), aff'd 33 F3d 55 (6th Cir 1994). If the trial judge neglects to instruct a jury on pre-complaint interest, interest may be added after the jury returns its verdict. Gottesman v Fay-Bea Construction Co, 355 Mich 6; 94 NW2d 81 (1959).For an extensive discussion of Michigan cases and statutes relating to pre-judgment interest, see Michigan Law of Damages and Other Remedies, Ch 28 (Barbara A. Patek et al, eds) (ICLE, 3rd ed 2002). TOP
A person has a duty to use ordinary care to minimize his or her damages after [he or she / his or her property] has been [injured / damaged]. It is for you to decide whether plaintiff failed to use such ordinary care and, if so, whether any damage resulted from such failure. You must not compensate the plaintiff for any portion of [his / her] damages which resulted from [his / her] failure to use such care.
Note on Use
This instruction should not be given unless there is evidence creating an issue as to whether plaintiff failed to use ordinary care to minimize his or her injury or damage.
Comment
Michigan law recognizes there is a duty of ordinary care to mitigate either personal or property damage. See Zibbell v Grand Rapids, 129 Mich 659, 661; 89 NW 563, 564 (1902) (personal injury); Sullivan v Pittsburgh Steamship Co, 230 Mich 414, 422; 203 NW 126, 128 (1925) (property damage).
The duty to minimize damages may include a duty to seek and follow medical treatment, including surgery, which does not involve danger to life or extraordinary suffering. Poikanen v Thomas Furnace Co, 226 Mich 614; 198 NW 252 (1924); Beauerle v Michigan Central R Co, 152 Mich 345; 116 NW 424 (1908); Kolbas v American Boston Mining Co, 275 Mich 616; 267 NW 751 (1936); Anno: Duty of injured person to minimize tort damages by medical or surgical treatment, 48 ALR2d 346.
History
M Civ JI 53.05 was SJI 35.01. TOP
If you decide that the plaintiff will sustain damages in the future, you may consider the effect of inflation in determining the damages to be awarded for future losses.
Comment
Kovacs v Chesapeake & Ohio Railway Co, 426 Mich 647; 397 NW2d 169 (1986). The plaintiff is not required to introduce evidence regarding inflation, because there is no expert consensus on the rate of inflation and it would unnecessarily and unduly prolong trials. Kovacs.
In Bosak v Hutchinson, 422 Mich 712; 375 NW2d 333 (1985), the Michigan Supreme Court upheld the trial court’s refusal to give an instruction stating a 13 percent rate of inflation based on a rise in the Consumer Price Index.
History
M Civ JI 53.06 was added October 1987. TOP