M Civ JI 36.06A No-Fault Auto Negligence: Burden of Proof - Economic and Non-Economic Loss of Out-of-State Resident Plaintiff

In order to recover damages for either economic or noneconomic loss, plaintiff has the burden of proving:

(a) that the defendant was negligent;

(b) that the plaintiff was injured;

(c) that the negligence of the defendant was a proximate cause of injury to the plaintiff.

(d) that plaintiff’s injury resulted in [ death / serious impairment of body function / or / permanent serious disfigurement ].

ECONOMIC LOSS

If the plaintiff has proved all of those elements, then (subject to the rule of comparative negligence, which I will explain) the plaintiff is entitled to recover damages for economic loss resulting from that injury, including: [ insert those economic loss damages for which the plaintiff seeks recovery in this case ], that you determine the plaintiff has incurred or will incur in the future.

[ Read only if applicable ] If you find that plaintiff is entitled to recover for work loss beyond what is recoverable in no-fault benefits, you must reduce that by the taxes that would have been payable on account of income plaintiff would have received if he or she had not been injured.

NONECONOMIC LOSS

If the plaintiff has proved all of those elements, 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 or will sustain in the future as a result of that [ death / injury ].

†COMPARATIVE NEGLIGENCE

The defendant has the burden of proving 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 and 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 economic and 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 economic and noneconomic loss that you find were sustained by the plaintiff.

The Court will furnish you with a Verdict Form that will list the questions you must answer. Your answers to the questions will constitute your verdict.

Note on Use

2019 PA 21-22 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).

MCL 500.3135(3) abolishes tort liability of drivers and owners of insured vehicles with exceptions listed in that subsection.

This instruction is based on MCL 500.3135(3)(d) which sets forth the rights of non-resident plaintiffs in automobile negligence cases following the amendments of 2019 PA 21-22.

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.

†If comparative negligence is not an issue in the case, this section should not be read to the jury.

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.

History

M Civ JI 36.06A was added October 2022.