Lead Opinion
Plaintiff, asserting the right to three full years of no-fault work-loss benefits, MCL 500.3107(b); MSA 24.13107(b), sued defendant insurer for breach of contract. Shortly before trial, plaintiff moved in limine to bar defendant from proving as a defense her failure to mitigate damages, i.e., to seek other employment. Plaintiff appeals by leave granted the circuit court’s denial of her motion in limine to bar a defense of mitigation of damages. We affirm the circuit court’s ruling.
Plaintiff has neither worked full-time nor sought employment since the accident. She has, however, worked part-time as an administrator at her fiance’s medical clinic and returned to college. She satisfied all requirements for a b.s. degree in nursing in August 1988.
Defendant no-fault insurer paid plaintiffs work-loss benefits pursuant to MCL 500.3107(b); MSA 24.13107(b) until May 1988, when a medical examination at defendant’s request found plaintiff no longer disabled. Section 3107(b) provides that a no-fault insurer must pay benefits for:
Work loss consisting of loss of income from work an injured person would have performed during the first three years after the date of the accident if he had not been injured.
In a breach of contract action, the availability of a defense is a question of law. Sharp v Preferred Risk Mut Ins Co,
Plaintiff contends that because she could not return to her former job, her right to work-loss benefits for three years became irrevocable and
Marquis v Hartford Accident & Indemnity (On Remand),
The question here is not whether plaintiff should have the same work-loss benefits after she voluntarily quit her new job as she received before she began it. She should not [Emphasis supplied. Id. at 289.]
Our decision in this case, to continue benefits based on the pay differential does not reward*734 plaintiff for quitting; it also does not reward defendant for the happenstance that plaintiffs new job did not work out. [Emphasis supplied. Id. at 290.]
Although the Marquis Court did not explicitly discuss mitigation of damages,
Kirksey v Manitoba Public Ins Corp,
If the injured person is able to show convincingly that he would have changed jobs and earned a higher income, then he should be entitled to increased work-loss benefits. [Id. at 16.]
If a plaintiff can show entitlement to greater work-loss benefits because he would have increased his earnings by his own initiative, a defendant should be allowed to prove that plaintiff could have increased her income had she tried.
In Coates v Michigan Mut Ins Co,
Plaintiff relies primarily on Lenart v DAIIE,
Like the plaintiff in Lenart, the plaintiff in Nawrocki could not return to his original job. His position had been filled and he could not find other work. However, the plaintiff had attempted to find other work.
In both contract and tort actions, an injured party must make every reasonable effort to minimize damages. Williams v American Title Ins Co,
The Michigan no-fault act is based upon the Uniform Motor Vehicle Accident Reparations Act (umvara), 14 ULA, Civil Procedural & Remedial Laws, pp 35-124. Nawrocki, supra at 143. The Legislature agreed with the policies that underlie the model act’s language. Miller v State Farm Mut Auto Ins Co,
"Work loss” means loss of income from work the injured person would have performed if he had not been injured, and expenses reasonably incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income he would have earned in available appropriate*737 substitute work he was capable of performing but unreasonably failed to undertake.
The umvara’s definition is more generous than § 3107(b) in allowing compensation for expenses "reasonably incurred ... in obtaining services in lieu of those [the injured person] would have performed for income” (compare Kerby v Auto-Owners Ins Co,
We do not share defendant’s view that Michigan courts, by favorably citing the drafters’ commentary, somehow impliedly have engrafted the avoidable consequences language on our statute. Conversely, given the mixed features of the umvara’s definition of work loss, the Legislature’s failure to adopt it in toto does not command the conclusion that the Legislature has abrogated the common-law duty to mitigate. To draw that conclusion would be an unnatural reading. Cf. Spencer v Hartford Accident & Indemnity Co,
The enactment of the no-fault act did not extinguish common-law doctrines predating that legisla
The question is how to interpret the statute’s provision that work-loss benefits are payable "for work the injured person would have performed.” MCL 500.3107(b); MSA 24.13107(b) (emphasis supplied). The teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., provides a similar problem of interpretation. Under that statute, if a. suspended teacher is reinstated after an appeal to the tenure commission, "the teacher shall be entitled to all salary lost as a result of such suspension.” MCL 38.103; MSA 15.2003 (emphasis supplied). In Shiffer v Gibralter School Dist Bd of Ed,
Statutes must be interpreted as a whole. Whenever possible, one section of a statute should be read in harmony with the remainder. Michigan Millers Mut Ins Co v West Detroit Building Co, Inc,
Reasonableness of mitigation is a question of fact. Snell v UACC Midwest, Inc,
Affirmed._
Notes
The parties did not consider mitigation an issue. The plaintiff "admitted] that since she voluntarily quit her employment, she has failed to mitigate her damages.”
Lenart's holding that the defendant could not contest the reasonableness of the medical treatment that prevented the plaintiff from returning to work does not appear to survive in light of Nasser v Auto Club Ins Ass’n,
We emphasize that we are not holding, contrary to the suggestion in footnote 2 of the dissent, that as a matter of law plaintiff was necessarily obliged to take any employment offered to her. Whether her decision not to seek alternative employment was a reasonable one will be for the jury to determine.
Concurrence Opinion
(concurring). I concur with Judge Corrigan’s opinion, but write separately to explicate my position on the issue presented in light of my concurring vote in Marquis v Hartford Accident & Indemnity (On Remand),
In Marquis, the plaintiff was disabled from her employment because of an automobile injury. When she was medically able to return to work, she could not return to her employer because a permanent replacement had filled her position. The defendant no-fault insurer initially paid her work-loss benefits. The plaintiff then began working for a new employer. Her new job paid less than her preinjury position, and she voluntary resigned within two months. The issue presented to this Court in Marquis was whether the plaintiff was entitled to eighty-five percent of the difference in the compensation levels of her two jobs. This Court held that the defendant was responsible for eighty-five percent of the wage differential for the time after the plaintiff returned to work and after she quit her subsequent employment. Id.
I concurred with Judge Kelly’s opinion in Marquis .that the plaintiff was entitled to eighty-five percent of the difference in the compensation levels of her two jobs even for the time after she quit her second job, primarily for two reasons. First, the plaintiff had made a good-faith effort in finding another job. Second, the plaintiff in Marquis did not ask to be rewarded for quitting by seeking the difference between her preinjury wage and zero. Judge Kelly’s opinion stated that the plaintiff should not have the same work-loss benefits after she voluntarily quit her new job. However, the issue of mitigation of damages was not presented to this Court in Marquis. I believe that § 3107(b), MCL 500.3107(b); MSA 24.13107(b), requires the
In the present case, I concur with Judge Corrigan’s opinion because I believe that an employee losing a job under these circumstances has the duty to mitigate by seeking other employment. Although I agree with Judge Corrigan that reasonableness of mitigation is a question of fact, I would welcome standards (preferably from the Legislature) that might quell the onslaught of litigation regarding the "reasonableness” of mitigation our holding is bound to initiate.
Dissenting Opinion
(dissenting). We are asked to determine whether plaintiff, who is not disabled in the sense of being unable to perform any work, is entitled to work-loss benefits because she was initially unable to return to her job on account of her injuries and her job has since been filled. Specifically, the inquiry is whether a plaintiff has a duty to mitigate damages by seeking alternative employment that the disability does not prohibit. I do not believe that MCL 500.3107(b); MSA 24.13107(b) imposes such a duty and, therefore, I would reverse the trial court’s denial of plaintiff’s motion in limine to bar a mitigation of damages defense.
Section 3107(b) provides that a no-fault insurer must pay benefits for:
Work loss consisting of loss of income from work*742 an injured person would have performed during the first three years after the date of the accident if he had not been injured.
In Ouellette v Kenealy,
Section 1(a)(5)(h) of the umvara
"Work loss” means loss of income from work the injured person would have performed if he had not been injured . . . reduced by any income from substitute work actually performed by him or by income he would have earned in available appropriate substitute work he was capable of performing but reasonably failed to undertake.
The drafter’s comments to this subsection provide in part:
Finally, the definition contains an explicit reference to the doctrine of avoidable consequences— work loss is computed by subtracting not only income from work which the injured person undertook in lieu of that which his injury prevented him from performing but also income which he might have earned in available appropriate substitute work. As under the common law doctrine of avoid*743 able consequences, the issue is whether claimed work loss is justly attributable to the injury. Subtraction of potential income from alternate work which the injured person declines is proper only where, under all the circumstances, the alternate work is "appropriate” and the injured person’s refusal to undertake the work is "unreasonable. ”[2 ]
Under the reasoning of this Court’s decision in Spencer, the Legislature’s failure to adopt the avoidable consequences language contained in the umvara creates a presumption that it was considered but rejected. Section 3107(b) requires defendant to pay plaintiff for work she "would have performed” in the three years after the accident.
See 14 ULA, Civil Procedural & Remedial Laws, p 43.
14 ULA, p 46.
Here, plaintiff would have continued in her employment as head operating room nurse at South Macomb Hospital. To accept the majority’s position is to generally construe § 3107(b) to require an injured plaintiff to accept any employment, regardless of the plaintiff’s level of training or skill.
I agree with the majority’s conclusion that when a person receiving work-loss benefits has earned income from another job, the no-fault benefits are correspondingly reduced during the period of employment.