Introductory Directions to the Court

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 Court and parties should note that 2019 PA 21 and 22 amended the Michigan No-Fault Insurance Act (MCL 500.3101 et seq) and introduced, among other reforms, different legal standards applicable to Michigan residents and out-of-state residents. 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 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 June 11, 2019, a tortfeasor is liable for damages up to $3,000 to motor vehicles to the extent the damages are not covered by insurance. MCL 500.3135(3)(e). (Before June 11, 2019, the limitation was $1,000.) 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 Michigan resident plaintiff’s claim for excess economic loss damages. However, all damages of out-of-state residents will be barred if they are proven to be more than 50% at fault or fail to prove a threshold injury. See MCL 500.3135(2); MCL 500.3135(3)(d). In other words, in order to recover any damages, whether economic or noneconomic in nature, the out-of-state resident must be 50% or less at fault, and his/her injuries must constitute death, serious impairment of body function or permanent serious disfigurement.

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).

Based on the needs and issues of a particular case, the Court and parties may consider re-ordering the instructions in this Chapter for additional clarity or consistency.