M Civ JI 35.03 No-Fault: Benefits from First-Party Actions

If you decide no-fault benefits are owed to the plaintiff, you are instructed to award benefits *(that have not already been paid by the defendant) as follows:

(a) **†† (allowable expenses consisting of reasonable charges incurred for reasonably necessary products, services and accommodations for the plaintiff’s care, recovery or rehabilitation arising out of the accident in question)

(b) **(work loss benefits consisting of †(85 percent) of the loss of income from work that the plaintiff would have performed during the first three years after the date of the accident if [ he / she ] had not been injured. Total work loss benefits for any thirty-day period cannot exceed $ [ applicable monthly maximum ])

(c) **(replacement service expenses not exceeding $20 per day reasonably incurred by plaintiff in obtaining ordinary and necessary services in place of those that, if the plaintiff had not been injured, [ he / she ] would have performed during the first three years after the date of the accident, not for income but for the benefit of [ himself / herself ] or of [ his / her ] dependents)

(d) **(survivors’ loss benefits consisting of tangible things of economic value, not including services, that dependents of [ name of decedent ] at the time of [ his / her ] death would have received for support during their dependency from [ name of decedent ] if [ he / she ] had not suffered the accidental bodily injury causing death)

(e) **(replacement service expenses consisting of expenses not exceeding $20 per day reasonably incurred by these dependents during their dependency and after the date on which [ name of decedent ] died in obtaining ordinary and necessary services in place of those that [ name of decedent ] would have performed for their benefit if [ he / she ] had not suffered the injury causing death) **(You are reminded, however, that the total survivors’ loss benefits for any thirty-day period, that is, the combination of loss of support and replacement services, may not exceed $ [ applicable monthly maximum ] and are not payable beyond three years from the date of the accident.)

(f) **(funeral and burial expenses not exceeding *** $ [ policy maximum ])

Note on Use

*The phrase in parentheses should be used if some benefits have already been paid by the defendant.

**Delete if not an issue.

***See MCL 500.3107(1)(a) for the statutory minimum and maximum for funeral and burial expenses.

For applicable monthly maximum, see Note on Use to M Civ JI 35.01.

†This standard statutory percentage must be modified if plaintiff’s income tax consequences are less than 15 percent. See MCL 500.3107(1)(b).

†† The Court and parties should consider the amendments in 2019 PA 22, including those to MCL 500.3157(10), which include limitations on certain attendant care benefits, when crafting an appropriate instruction for each specific case.

The Court may wish to give additional instruction on the meaning of work loss where plaintiff’s disability ceases but plaintiff claims a loss of income from work as a consequence of the injury. See Comment below.

Comment

“An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.” MCL 500.3148(1). The attorney fee thus is a question not for the jury but for the Court. 2019 PA 22 amended MCL 500.3148 to include additional conditions on the awarding of an attorney fee.

Factors to be considered in determining reasonableness of attorney fees are discussed in Wood v Detroit Automobile Inter-Insurance Exchange, 413 Mich 573; 321 NW2d 653 (1982).

Note that work loss and survivors’ loss damages are given in the alternative. There are cases, however, where both will be applicable, such as where an injured party dies sometime subsequent to the accident.

Work loss benefits are available only for actual lost income and not for loss of earning capacity. See, e.g., Nawrocki v Hawkeye Security Insurance Co, 83 Mich App 135; 268 NW2d 317 (1978). If the disability ends but the income is lost as a direct consequence of the injury, plaintiff may still recover. Id. (Plaintiff was replaced during his disability and therefore could not return to his job after the disability ended.)

Similarly, where plaintiff’s disability ceases and he is able to return to work with pain medication, but the employer’s rules prohibit it, plaintiff’s work loss is a consequence of the injury and work loss benefits are recoverable. Lenart v Detroit Automobile Inter-Insurance Exchange, 156 Mich App 669; 401 NW2d 900 (1986); lv denied, 428 Mich 917 (1987); reconsideration denied, 430 Mich 860 (1988).

While fringe benefits are not ordinarily recoverable work loss, where profit-sharing payments were considered part of an employee’s wages, they are recoverable as a work loss benefit. Krawczyk v Detroit Automobile Inter-Insurance Exchange, 418 Mich 231; 341 NW2d 110 (1983).

A person receiving work loss benefits is not entitled to continue to receive those benefits after suffering a subsequent unrelated disability which independently renders him or her physically unable to work. MacDonald v State Farm Mutual Insurance Co, 419 Mich 146; 350 NW2d 233 (1984).

Work loss benefits can be recovered by those temporarily unemployed at the time of the accident or during the period of disability. For factors determining “temporarily unemployed” and the computation of wage loss for such periods, see Oikarinen v Farm Bureau Mutual Insurance Co of Michigan, 101 Mich App 436; 300 NW2d 589 (1980); Lewis v Detroit Automobile Inter-Insurance Exchange, 90 Mich App 251; 282 NW2d 794 (1979); Lowman v Reliance Insurance Co, 413 Mich 945 (1982); Kennedy v Auto-Owners Insurance Co, 87 Mich App 93; 273 NW2d 599 (1978); Szabo v Detroit Automobile Inter-Insurance Exchange, 136 Mich App 9; 355 NW2d 619 (1983).

Tangible things of economic value that dependents of a decedent would have received are not limited to wages; they include “hospital and medical insurance benefits, disability coverage, pensions, investment income, annuity income and other benefits.” Miller v State Farm Mutual Automobile Insurance Co, 410 Mich 538, 557; 302 NW2d 537, 541 (1981). The computation of things of economic value requires an adjustment for income taxes that decedent would have paid on the portion that was taxable, but does not require an adjustment for personal consumption. Miller. If one of the survivors ceases to be a dependent, an adjustment to benefits due to the remaining survivor or survivors may be required. Miller.

Surviving dependents of a decedent who was unemployed at the time of death are entitled to survivors’ loss benefits if they can show that the decedent would have been employed had he survived the accident. Gobler v Auto-Owners Insurance Co, 428 Mich 51; 404 NW2d 199 (1987).

2019 PA 22 amended the Michigan No-Fault Insurance Act (MCL 500.3101 et seq) and introduced, among other reforms, new PIP choice options that apply to allowable expense benefits payable pursuant to MCL 500.3107(1)(a). By way of example, the reforms made by 2019 PA 22 include potential caps on allowable expense coverage, allowable expense fee schedules, the potential for managed care policies and limitations on certain attendant care benefits. Many of these issues will be matters of law for the Court to decide, absent stipulation by the parties. It is strongly recommended that the Court and parties consider the ramifications of 2019 PA 22 on certain aspects of cases when fashioning jury instructions and verdict forms and endeavor to resolve any legal issues that are not stipulated to by the parties prior to jury selection. The allowable expense fee schedules do not apply when the accident took place prior to June 11, 2019. Andary v USAA Cas Ins Co, 512 Mich 207, 216; 1 NW3d 186 (2023).

History

M Civ JI 35.03 was added November 1980. Amended May 1998, October 2022, September 2025.