M Civ JI 36.04 No-Fault Auto Negligence: Elements of Proof - Explanation of Noneconomic-Economic Distinction for Michigan Resident Plaintiff

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: for the first three years, amounts in excess of no-fault benefits for work loss and survivors’ loss, and, for the period after three years, all work loss and survivors’ loss. For uninsured defendants, insert any economic loss damages. With regard to allowable expenses, they consist of all allowable expenses, including all future allowable expenses, if plaintiff is excluded from, or has opted out of, allowable expense coverage. If plaintiff is not excluded from, or has not opted out of, allowable expense coverage, then allowable expenses will consist of those allowable expenses, including all future allowable expenses, in excess of no-fault benefits payable under the no-fault coverage available to the plaintiff.].

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

2019 PA 21 and 22 amended the Michigan No-Fault Insurance Act to differentiate between Michigan residents and out-of-state residents for purposes of tort liability for economic damages. MCL 500.3135(2)(b) & (3)(d).

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, 425 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).

MCL 500.3135(3)(c) provides that the defendant remains liable for “Damages for allowable expenses, work loss, and survivor's loss as defined in sections 3107 to 3110, including all future allowable expenses and work loss, in excess of any applicable limit under section 3107c or the daily, monthly, and 3-year limitations contained in those sections, or without limit for allowable expenses if an election to not maintain that coverage was made under section 3107d or if an exclusion under section 3109a(2) applies. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.”

MCL 500.3135(3) abolishes tort liability of drivers and owners of insured vehicles with exceptions listed in that subsection. MCL 500.3135(3)(c) identifies recoverable economic damages but does not include replacement services. Johnson v Recca, 492 Mich 169, 821 NW2d 520 (2012).

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, October 2013, October 2022.