M Civ JI 36.06 No-Fault Auto Negligence: Burden of Proof - Economic and/or Noneconomic Loss for Michigan 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.

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: [ 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. 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. For uninsured defendants, insert any economic loss damages. ], 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

As to plaintiff’s claim for damages for noneconomic loss, plaintiff has the burden of proving a fourth element:

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

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 loss. However, the percentage of negligence attributable to the plaintiff will be used by the court to reduce the amount of damages for economic loss that you find were sustained by plaintiff.

Negligence on the part of the plaintiff does not bar recovery by plaintiff against the defendant for damages for 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 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 noneconomic loss that you find were sustained by the plaintiff.

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

Note on Use

1995 PA 222 contains a definition of “serious impairment of body function” that applies to all cases filed on or after March 28, 1996. See May v Sommerfield, 239 Mich App 197; 607 NW2d 422 (1999). 1995 PA 222 also bars recovery of damages for noneconomic loss if (1) a plaintiff is more than 50 percent at fault or (2) a plaintiff is uninsured and is operating his or her own vehicle at the time of the injury. MCL 500.3135(2)(b),(c). These two provisions are effective for cases filed on or after July 26, 1996, but they do not affect a plaintiff’s right to recover excess economic loss damages.

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. For example, if only noneconomic loss damages are claimed, the trial judge should read the four elements (a)–(d) together; delete the section titled “Economic Loss”; and delete the third-from-last paragraph of this instruction. This instruction should also be modified by deleting the first four paragraphs under the section titled “Comparative Negligence” if plaintiff’s negligence is not an issue in the case.

An uninsured plaintiff operating his or her own vehicle at the time of the injury is not entitled to noneconomic loss damages, but may recover excess economic loss damages. See MCL 500.3135(2)(c), added by 1995 PA 222.

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. Hill.

See MCL 500.3135(3)(c) (formerly MCL 500.3135(2)(c)) for allowable economic loss damages. 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).

In suits against an insured defendant, MCL 500.3135(3)(c) requires a reduction for the tax liability the injured person would have otherwise incurred. The “tax reduction” instruction should only be included if there is evidence to support it.

2019 PA 22 amended the Michigan No-Fault Insurance Act (MCL 500.3101 et seq.) and in essence codified the holding of McCormick v Carrier, 487 Mich 180 (2010). In addition, MCL 500.3135(3)(c) provides that tort liability remains for damages for allowable expenses, work loss, and survivor’s loss, including all future allowable expenses and wage loss, in excess of any applicable limit under MCL 500.3107c and MCL 500.3107d. MCL 500.3107c is the provision permitting insureds to select lesser amounts of first-party benefits, and MCL 500.3107d permits qualified persons to opt out of allowable expense benefits, and MCL 500.3109a(2) permits qualified persons to exclude coverage for allowable expense benefits.

Comment

The no-fault law has not abolished the common law action for loss of consortium by the spouse of a person who receives above-threshold injuries. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309 NW2d 163 (1981).

A plaintiff who is more than 50 percent at fault is not entitled to noneconomic loss damages. MCL 500.3135(2)(b), added by 1995 PA 222.

History

M Civ JI 36.06 was added November 1980. Amended September 1989, November 1995, October 2013, January 2020, October 2022.