Gobler v. Auto-Owners Insurance

51 Gobler v Auto-Owners GOBLER v AUTO-OWNERSINSURANCE COMPANY (Calendar 13). Argued 8, Docket No. 76011. October No. Decided 20, April 1987. brought Ingham Linda K. an action in the Circuit Court against Company, seeking Auto-Owners Insurance to recover no-fault survivors’ benefits as a result of the accidental death of husband, death, her Steven. At the time of his Steven was an unemployed student, completed requirements full-time who had degree degree forestry. posthumously. for a The was awarded death, applied Prior to his Steven had to the United States eligible employ- Service which had certified him forestry ment. Six months after Steven’s service inquiry court, availability. him forwarded to an The James J., Giddings, sought R. found that Steven would have and forestry service, secured full-time with the awarded benefits on the he basis the amount earned, attorney accruing in addition to fees and interest trial, granted partial commencement of and accelerated judgment plaintiff’s for the defendant claim for survi- Appeals, vors’ The Hoffius, benefits. Court of JJ. Allen (M. Kelly, P.J., concurring part dissenting part), J. opinion curiam, per holding reversed in an the trial court’s finding employed by deceased would have been 63718). (Docket clearly service erroneous No. plaintiff appeals. opinion joined by In Archer, Justice Levin, Justices Supreme Brickley, Cavanagh, Court held: act, Under the no-fault survivors of decedents are entitled to benefits for loss income. Entitlement References 2d, Am Jur Automobile Insurance 363. §§ 2d, seq. Am Jur Insurance 1771 et §§ part rendering What constitutes faith on bad insurer it liable for statutory penalty imposed pay, delay for bad faith in failure or paying, insured’s claim. 33 ALR4th 579. child, spouse, parent, person Entitlement or other to survivor’s loss benefit under no-fault insurance acts. ALR4th 975. Validity plans. and construction of "no-fault” automobile insurance 42 ALR3d 229. 428 Mich 51 employed upon proof dependent that the decedent rather, causing death; injury if the the accidental date of accident, unemployed at the time of the but deceased was employment subsequent date received an offer of substantiate, surviving dependent can the which the accident employ- salary the would have earned from that the deceased applied be the offer should considered ment to which at of benefits. Such benefits accrue calculation survivors’-loss the time the loss occurs. provides payment of no-fault act for of 1. Section 3108 the personal protection a survivor’s loss of contribu- benefits for things dependent tangible value that a of a

tions of of economic support not have received for had the deceased deceased would bodily injury the caused death. Such suffered accidental which would have been received in contributions refer to those which dependents by had the deceased not died. The the future the occurs, injury the as the survi- accrue not when but benefits incurred, i.e., subsequent to the occurrence of the vors’ loss is earnings may past injury. be used a decedent’s as fatal While benefits, computing of survivors’-loss calculation of one method past not limited to the decedent’s income. such benefits is case, application completed 2. the decedent had an to In prior Service within twelve months the United States inquiry forestry an to his and the service had forwarded availability Absent to the decedent six months after he died. of circumstances, forwarding inquiry special of an the mere such However, employment. on the basis of the is an offer of agent regarding unique testimony forestry service’s the hiring unavailability procedure of and the of certain the service position, the the trial court con- of other candidates the forestry position to cluded that the service had offered the by he have been hired the service had decedent showing lead to he survived. No was made which would findings the trial court was mistaken in its of conviction that fact. plaintiff by penalty the trial 3. The interest awarded 1, 1979, begin upon January but at court did not accrue actually time the defendant learned that the deceased received service, job forestry a offer from the when what amounted to service recruiter testified. Attorney may 4. under the no-fault act fees awarded payment unreasonably delays or on a where an insurer refuses delay A or will not be found be unreasonable claim. refusal legitimate question statutory product is of a where it law, or fide factual uncer- construction or constitutional a bona v Auto-Owners case, tainty. required In this remand the Court thorough disposition for a more defendant’s substantive arguments regarding good its faith. Reversed and remanded. Boyle, concurring part dissenting part, Justice

agreed that relief under the no-fault act was not intended to be solely unemployed a denied because decedent was at the time computa- and that of death 3107a was not intended to control tion of under 3108 a survivors’ benefits where decedent was case, however, unemployed at the time of death. In this employed did not establish that the at decedent was "Inquiry Availability” the time of his death. The from the potential employer spouse was received the decedent’s six after months his death and thus cannot award survivors’ under benefits 3108. The case should be remanded for a determination survivors’ the basis may analogous, be calculated method to, addition, specified but not limited the method In § 3107a. initially may because there is evidence that the defendant have justified denying plaintiff’s claim, been the award attorney interest and fees should be and the vacated case proceedings regarding remanded to the trial court for further question. Riley, writing separately, Chief Justice stated that cases temporarily unemployed a which decedent was at the time of survivors’-loss benefits for the loss of income wages should be calculated reference the decedent’s income, analogous wage-loss to the calculation of employment clearly under 3107a. Where future can be estab- lished, may survivors’ benefits calculated basis of the wages amount of income from the decedent would have earned following temporary case, unemployment. In this the record clearly does not establish that the decedent would have been employed by Thus, the United States Service. the judgment part of the Court of should be affirmed in part, and reversed in and the case should be remanded to the trial court a for recalculation of survivors’-loss benefits and judgment. reinstatement of the remainder of its part

Justice Griffin took no in the decision of this case. (1984) 768; App 139 Mich NW2d reversed. — — — 1. Insurance No-Fault Survivors’ Benefits Offers Employment. Survivors of are decedents not entitled to benefits for loss proved employed if it can be that the decedent was 428 Mich Opinion of the Court death; rather, causing injury if accidental the date accident, unemployed the but at the time of deceased was subsequent to the date received an offer of substantiate, accident, surviving dependent can which the employ- salary from the the deceased would have earned applied offer should be considered ment which the benefits; at such benefits accrue of survivors’-loss calculation (MCL 500.3108; occurs time the work or survivors’ loss 24.13108). MSA Attorney — — 2. Fees. Insurance No-Fault delay by payment personal A an insurer of or refusal or protection property be found to be unreason- benefits will not legitimate question product of a of statu- where it is the able law, tory fide factual constitutional or a bona construction or (MCL 24.13148[1]). 500.3148[1]; uncertainty MSA James G. & Halverson Associates Carruthers (by Halverson) plaintiff. Lucow, Becker,

Garan, Miller, Seward, Cooper & Borin), L. P.C. James for the defendant. (by requires judicial discovery case Archer, J. This Legislature provi- concerning of the intent of the the no-fault automobile insurance act. MCL sion of et seq.; seq. 500.3101 et MSA 24.13101 granted appeal leave to determine We tangi- "contributions meaning expression . . things dependents economic value . ble have received for sup- . . . of the deceased if their from the deceased during dependency port bodily the deceased had not suffered accidental used in 3108 of the act. causing death” as injury 500.3108; quoted MCL MSA 24.13108. We read the light 3108 in the of the no-fault act language of § Legislature as a and conclude that did whole compensated for lost intend that survivors prove if can deceased they bodily of the accidental employed was date was unem- causing death. If deceased injury Gobler v Auto-Owners Opinion Court accident, at the time of the ployed but received of subsequent offer to the date of the surviving dependents accident can sub- stantiate, salary deceased would have the employment earned from to which the offer applied should be considered calculation survivors’-loss benefits under 3108.

i procedural The facts and in this history case are set forth in detail Co, Gobler Auto-Owners Ins (1984). App 768; 362 NW2d 881 Steven Gobler, decedent,1 plaintiff’s was killed in an auto- mobile 16, accident on March 1976. Auto-Owners Insurance Mr. Company was Gobler’s au- no-fault day died, tomobile insurer. On the he com- pleted the requirements last degree for a in for- estry Michigan at State He en- University. rolled aas full-time student and was unemployed at the time of his Michigan demise. State Univer- sity awarded Gobler a bachelor science degree in forestry posthumously. died,

Plaintiff testified that before Gobler he was planning pursue in forestry a career on the west coast. Plaintiff filed an application for survivors’ with Auto-Owners. Auto-Owners paid the ambulance, hospital, and funeral for plain- bills tiff’s decedent. Plaintiff’s claim for survivors’ bene- fits, however, was denied because Gobler was un- employed at time the accidental bodily that caused his injury death.

Steven employed Gobler was last by the United Hoodsport, States Service in Washington. In he worked for service aas fighter fire July November and earned surviving Plaintiff is the widow of Steven Gobler. Plaintiff and Gobler were married in 1971. Mich 51 428 op Opinion the Court job During trial, the service

$4,064.86. his with employment. In Janu- as seasonal described was ary, full-time his studies as a 1976, he resumed Michigan University. From Janu- State at student ary death, he was unem- the date of his until ployed. application filed an

Sometime in Gobler was Service which the United States with Registry. Before a on the Civil Service entered registry qualifies person of for inclusion on requirements eligibles, in the certain educational quali- completed. must be area fied for inclusion registry on the basis of his standing. superior Go- scholastic education registry selected from name was bler’s placed separate eligibles on three certificates eligibility. identical, with the These lists were of exception va- the location of cancy. name on each of name was last Gobler’s upon which Gobler’s the three lists.2 lists preparation appeared an resulted name availability inquiry was forwarded to persons included on the and the other five Gobler lists. The inquiry not forwarded to Gobler was September 14, 1976, some six months after until he had died. responsible

Shelagh specialist staffing Reed,3 for recruiting employees the United For- for States estry Service, she forwarded the on the testified persons inquiry availability to the six open eligibles to fill three effort lists of positions possible. positions All three as soon as on each of the three lists. Gobler’s There were a total of six names the sixth name on each list. name was trial, objection judge Auto-Owners At the the trial sustained separate testimony A record was taken of her of Ms. Reed. testimony testimony that such was irrelevant because the court ruled subsequently reversed itself and The trial court and immaterial. adopted testimony of Ms. Reed. Gobler v Auto-Owners Opinion of the Court were located in the State of posi California. The tions the subject which were inquiry were all GS-7 positions4 which carried a definite salary level, and benefit and commencement date.5 Ms. explained Reed the purpose inquiry as availability follows. The inquiry prepared specific vacancies and was forwarded to all the persons who were listed of eligibles. lists This allowed the forestry service to find out who was available and to fill the vacancies as soon as possible. filled, If there were three vacancies to be for example, top and the three persons included on available, the lists were those persons three were generally positions. If, offered the available how- ever, top three persons available, were not remaining three list would be offered the position if there was no adverse information on their applications. Ms. Reed stated that adverse information included an arrest record and termi- nation prior employment. Ms. Reed further testified that persons none of the on included eligibles list of would be a position offered if there any was adverse information on applications. their The forestry service did not a interview person offering position. before a Persons included on the list eligibles prequalified were for any job which the certificate of eligibility covered. The prequalifi- curriculum, cations included grade point average, and prior employment with the service. forestry The fact that Gobler’s name was on placed lists of eligibles demonstrates that he satisfied the prequalification three criteria._ everyone government general Almost in the federal is under the Only system. schedule. Ms. Reed’s blue collar workers are in another At the time taken, testimony entry forestry positions was level for grade was a entry beginning GS-5. GS-7 was one above the level of a professional. salary $11,046. position The a 1976 for GS-7 was benefits, benefits, Benefits included retirement health care life insur ance, and sick leave. 428 Mich 51 Opinion of the Court response to indicated

Ms. Reed inquiry availability forwarded which was persons was as follows. the other five Gobler and The first and second person person declined, the third person declined, reply, fourth failed availability person indicated his fifth and the person position. Gobler, the sixth offered reply. of Ms. Reed’s list, On the basis failed to the testimony, persons did it is clear that three vacancies; the three to be considered wish availability expressed to fill one a his individual one accepted and offered and was of the vacancies persons, Gobler, position. one of whom was Two reply. Hence, remained. two vacancies failed have court found that Gobler would The trial employment. sought full-time and secured by a had shown also concluded that wages preponderance that Gobler’s of evidence plaintiff’s support and would have contributed initially the award should determined plus $4,064.86, inter- on the annualization based est, employment. from his last full-time that Gobler had earned penalty was also awarded

Plaintiff attorney fees. interest and App Relying 251; DAIIE, Mich on Lewis v (1979), reversed its the trial court 282 NW2d ruling plaintiff survivors’ ben- and awarded earlier Steven Gobler on the basis amount efits working for the United States earned Forestry further awarded Plaintiff was Service. attorney the total fees of one-third of sum began penalty, judgment, and interest which upon the trial. Auto- commencement of accrue judgment granted partial accelerated was Owners on plaintiff’s Plain- claim for survivors’ benefits. statute of limitations tiff’s claim was barred from March day died, 16, 1976, the the deceased through 1976, that 21, on the basis December Co Auto-Owners Ins Opinion op the Court . timely complaint. did not file her plaintiffs trial court limited claim to twenty-seven months.

The Court of held that the trial court’s finding that Steven Gobler would have been em- ployed by the United States Service was erroneous, clearly stating: presented

The evidence at trial showed that on death, the date of Steven Gobler’s he was not employed. was on September It six months death, after Gobler’s when an "Inquiry Availa- wife, bility” was received his possibil- that ity occurred. This not an offer employment, and because of Gobler’s he respond could not to indicate his interest potential positions might which be offered. Since presented at evidence trial did not an award of survivor’s inquiry benefits based on the availability and Steven Gobler was otherwise unemployed, judge improperly the trial awarded App survivor’s benefits. [139 776.] Judge concurring part and dissenting Kelly, in part, would have affirmed the decision of the trial court. agree appropriate I inquiry deter-

mining whether survivor’s benefits should be 500.3108; awarded under MCL MSA 24.13108 is dependent whether would have received the support from the if the decedent decedent had not cannot, however, injury. agree suffered the fatal I clearly trial court in this case erred in finding that Steven Gobler would have been em- ployed by the U. S. if Forestry Service he had survived The majority’s opinion the accident. con- veys the impression finding the trial court’s solely plaintiff’s receipt was based of the In- quiry Availability, admittedly was not However, I employment. offer believe the Mich 51 Opinion op the Court Availability Inquiry the trial in considered court Shelagh testimony of with the conjunction thus with a firm definite Reed. I am not left the by a mistake has been committed

belief that trial finding that Gobler would Steven court U. employed by the S. Service have been as salary level and at commencement date and benefit Precopio testified to Reed. 457, 462; Detroit, 415 Mich NW2d v (1982); Dep’t Highways, 397 Mich Tuttle v of State (1976). 44, 46; App 243 NW2d 244 [139 777.] II provides for Section 3108 of the no-fault act pertinent provisions survivors’-loss benefits. this section are as follows: (2), personal provided in subsection Except as protection payable are for insurance benefits loss, after the survivor’s loss which consists of a date on died, the deceased of contributions which value, tangible things including not of economic services, dependents of the deceased at time death have received of the deceased’s dependency support during their if the deceased had not suffered deceased causing expen- bodily injury accidental death ses, in- exceeding per day, reasonably not $20.00 during depen- their dependents these curred dency and after the date deceased obtaining necessary ordinary services

died in lieu of those that deceased if not performed for their the deceased had benefit causing death. injury suffered [MCL 24.13108(1). 500.3108(1); Emphasis MSA added.] that benefits are provides Section 3108 further years the first three after payable beyond case accident. The trial date plaintiff benefits on the basis initially awarded with previous temporary decedent’s Gobler v Auto-Owners 61 Opinion of the Court the United States Forestry Service. The trial court ruling based this a upon finding that Gobler was temporarily within unemployed meaning act, 500.3107a; 3107a of the no-fault MCL MSA 24.13107(1). Relying on Lewis DAIIEsupra, trial court reversed its decision and considered the Shelagh Reed testimony concerning the inquiry which was availability forwarded Gobler after his death. On the basis of Shelagh Reed’s testi- mony, trial court awarded survivors’ the basis of the amount Gobler would have earned for the working United States For- estry Service as full-time GS-7 employee.

We must determine whether the trial applied the correctly provisions of 3108 in reach- ing result. In making determination, our we language read the 3108 in the light of its legislative history context of the no- Miller v State Farm Mutual fault act as a whole. Co, Ins 538; 410 Mich 302 (1981), NW2d 537 reh (1981). den 411 Mich 1154

A General, In Attorney Shavers v 402 Mich 578-579; (1978), 267 72 NW2d we said: goal system the no-fault insurance was to

provide assured, of motor victims vehicle accidents adequate, prompt reparation for certain eco- nomic losses.

The no-fault insurance is act remedial in nature persons must be construed in liberally favor of thereby. Bierbusse v Farmers intended to benefit (1978). Group, Ins 84 34; Mich 269 297 App NW2d Owendale-Gagetown School Dist v State Bd of In Ed, 1, 8; (1982), 413 Mich 317 529 NW2d we held: Mich 51 62 428 Opinion of the Court statutory construc- Legislative intent controls intent, Legisla- tion, and, ture meaning expressed by When further ascertaining such presumed must have intended it language has chosen. unambiguous, no language clear and necessary. v Mon- interpretation is Dussia County Employees System, Retirement roe 244; (1971); City of Grand 191 NW2d Mich Crocker, 178; 189 NW Rapids v (1922). however, is, this funda- exception There that arises statutory rule of construction mental language of reading statutory when a literal the unjust result and produce "would absurd purposes with the clearly would be inconsistent question.” in Salas v policies and the of the act 103, Clements, 109; 247 399 Mich NW2d (1976).

B Ins, supra, we were In Miller v State Farm expression meaning to determine the the asked tangible things of economic "contributions in The dis- phrase as is used 3108. value” that § the instant case concerns words pute if "would have received ... the deceased had causing bodily injury accidental suffered the Miller, determining in death.” In we stated that the meaning expression the "contributions surviving things of economic value” the tangible the received dependents deceased would have obligation lived "our for had deceased support give Legislature’s effect to is to discover in best we can deter- enacting intention as § 3108 and language employed it from the mine whole, light of such the no-fault act as a 555- legislative history as is available.” 556. v Auto-Owners Opinion of the Court

We analyze must of the language statute itself. concern primary Our focuses on the mean- ing expression "would have received for . . . from if the deceased the deceased had not suffered the accidental bodily injury caus- ing death” as used in 3108. assign

We must to these words their primary meaning. Miller, and generally understood supra, 556. expression We believe that primarily and generally understood to mean contributions tangible things of economic value which would have been received the future depen- dents of the deceased had the deceased not died. 3110(4) Section of the no-fault act provides that "[p]ersonal protection insurance benefits payable for accidental not when the accrue bodily injury injury occurs but as expense, allowable work or loss survivors’ loss is incurred. MCL 500.3110(4); 24.13110(4). added.) MSA (Emphasis Hence, benefits accrue at a time is subsequent the occurrence of fatal injury. language read light the no- whole,

fault act as a convinces us the Court of Appeals correctly concluded Legislature did not intend that compensated survivors be lost if they prove can the de- ceased was employed on the date of his death. There is no such requirement act, contained the and we decline to read such requirement a into provisions of 3108. §

We turn legislative to the history of 3108. In § 1980, a January, bill was introduced in the House Insurance bill Committee.6 The as intro- originally duced would have amended no-fault act so that work-loss temporarily benefits for the unemployed have during been based earnings the last

6HB 5428. 428 Mich 51 Opinion op the Court acci- preceding usual

month of employ- month of full-time of the last dent instead applied been ment. The same standard dependents to the accruing to survivors’ benefits at the unemployed temporarily a who was person A occurred. bodily injury time the fatal accidental the 1979-80 status report the final review of the bill indicates legislative session regular died committee. that work-loss benefits provides 3107a

Section injured for an personal protection insurance under the time of the at person temporarily unemployed shall be period disability or during accident month the income for last on earned based preceding full-time employed injured person no 3107a makes reference the accident. Section incorpo- not 3108 does survivors’-loss benefits and § Hence, of 3107a. provisions rate reference § 3108. 3107a does not control earnings of the dece- believe that We of computing as one method dent be used may However, calculation benefits. survivors’-loss limited to the decedent’s survivors’ benefits past income. legislative history of the as

Our review whole, of the no-fault act as reading well as our did not intend to Legislature convinces us that dependents of a de- relief automatically deny the sole the deceased was ceased on basis bodily accidental in- at the time the unemployed must now deter- causing death occurred. We jury presented in this case the facts mine whether meaning of "contributions come within depen- of economic value” which tangible things "would have received for the deceased dents of "not the acci- the deceased suffered support” had causing death.” bodily injury dental She- reading testimony presented by Our v Auto-Owners Opinion Court lagh Reed convinces us that the United States employment Service made offer of an Gobler six months after he died. It was more than employment. opportunity a mere Ms. As Reed testified, the reason Gobler would not have hired been the service was if he turned the if offer down or "adverse information” about Go- application. bler was contained Gobler had being employed by indicated his interest forestry in completed application service when he prior within months twelve to his death. He also expressed returning an interest in to the west prior coast to work for the service to his earlier, As death. stated all three vacancies were located California.7 The record before us con- tains no adverse information about Gobler. acknowledge response

We the fact that inquiry defense counsel’s statement availability not an was offer Ms. responded, Further, Reed "That’s correct.” we agree forwarding special that, circumstances, absent the mere inquiry availability

anof is not an employment. inquiry However, offer of availability attempt forwarded quickly persons fill three vacancies. The first three eligibles named the the list of either declined to fill vacancy reply inquiry or failed to to the availability. person acknowledged One his availa- bility position. accepted and was offered a He Hence, offer and filled one the three vacancies. remained, two vacancies and Gobler was one of people Thus, two left on the list. on the basis of complete testimony unique Reed, of Ms. hiring procedure forestry service, and the nonavailability persons of three of six list, the trial court it concluded "that was their following The three vacancies existed in the forests located Tahoe, Stanislaus, California: and Mendocino. 428 Mich Opinion op the Court they that offered position forestry service’s]

[the to Mr. Gobler. position” the found as fact that Gobler in turn The trial court the service forestry employed by been re- can Before we he survived the accident. had court, we must of a trial findings the of fact verse has made. that a mistake been firmly convinced court made a the trial We are not convinced Dep’t, v Highway Tuttle factfinding. in its mistake Detroit, supra. Precopio v supra; Ap- the of the Court judgment We reverse concerning plaintiff’s entitle- peals question to benefits. ment survivors’-loss trial interest. The penalty Plaintiff was awarded began interest penalty court concluded that did Penalty 1979. interest accrue on January actually until not accrue Auto-Owners begin to a amounted that Gobler received what learned service. The record job offer that Auto-Owners became aware establishes Shelagh offer Reed testified. job when fees attorney court awarded plaintiff The circuit for it unreasonable defen- on the basis may A court pay to fail to survivors’ benefits. dant refusal or attorney fees for unreasonable award payments in under the making unreasonable delay However, delay pay- a refusal or no-fault act. "unreason- an insurer will be found ments meaning 3148 where able” within legitimate question of a product is delay construction, law, or even constitutional statutory DAIIE, Liddell v uncertainty. a fide factual bona (1981). 636, 650; 302 NW2d App 102 Mich 24.13148(1) 500.3148(1); provides: MSA MCL fee for attorney An is entitled a reasonable action advising representing a claimant property protection insurance bene- personal or Auto-Owners Opinion Boyle, J. fits which The attorney’s are overdue. fee shall be charge against the insurer in addition to the recovered, if the court finds the in- unreasonably surer refused to pay the claim or unreasonably delayed making proper payment. The Court Appeals found that trial court improperly plaintiff. awarded survivors’ benefits to The Court further found that trial awarding clearly erred attorney fees. Plaintiff asks Court to reinstate attorney fees. Defendant contends if plaintiff that even ultimately found be entitled to recover survi- benefits, vors’ an award of attorney fees instant case is not authorized under 3148 be- cause this case presents legitimate both issues statutory construction and bona fide factual ques- It tions. is or unclear whether not the Court of Appeals considered the good-faith defendant’s ar- guments. We therefore remand this case to the Court of for a thorough disposition more of defendant’s substantive arguments regarding its good faith. costs, public

No a question being involved. JJ., Levin, Brickley, Cavanagh, and concurred Archer, J. with (concurring part and

Boyle, J. dissenting part). agree I with majority the Legisla- that the ture did not intend to deny relief under no- fault dependents act to the of a decedent solely because at the time of death the decedent was I unemployed. agree also that the Legislature did not intend that 3107a should control the compu- § tation of survivors’ benefits under 3108 where § the decedent was at unemployed time of death.

Survivors’ benefits under are broader §3108 than the work-loss benefits under Survi- 3107a. § 51 428 Mich Boyle, J. Opinion items tangible value of include the

vors’ benefits to, salary, than, wages addition other wage are limited work-loss benefits while Therefore, language reliance income. salary inappro- is the construction of 3107a Co, Mutual Ins Miller v State Farm priate. (1981). Where 538, 564; 302 NW2d 537 Mich death, at the time of unemployed decedent computa- limited benefits are not survivors’ tion 3107a. under § however, conclu- majority’s

I with the disagree, that in this case established the plaintiff sion employed by would have been decedent the accidental he not suffered forestry service had majority As causing death. bodily injury Appeals panel explained: Court that on presented at trial showed The evidence death, he was not of Steven the date Gobler’s September It six months employed. was "Inquiry Availa- when an after Gobler’s wife, possibil- by his bility” was received offer This wás not an occurred. ity death, he employment, and because of Gobler’s his interest respond indicate could positions might be offered. potential [139 768, 776; (1984).] App 362 NW2d therefore, hold, "Inquiry I an award survi- Availability” cannot 3108 and would remand this under vors’ benefits for of trial a determination to the case past employment based survivors’ analogous by a method may be calculated 3107a specified to that in limited but no-fault act. of disagree

I treatment majority’s also with fee issues. The attorney and penalty interest trial reversing decision Appeals Court of 69 Gobler v Auto-Owners Separate Opinion Riley, C.J. court’s award employment survivors’ benefits based on future denying survivors’ benefits be- unemployed cause Steven Gobler was that is evidence may initially justi- the defendant have been plaintiffs denying Therefore, fied in claim. I would attorney vacate award of interest and fees and question proceed- remand this ings to the trial court for opinion. with consistent {separate opinion). appeal Riley, C.J. This con- problem calculating cerns under MCL survivors’ benefits

500.3108; MSA 24.13108 of the no- fault in in act cases which the survivor’s decedent unemployed

was hold that at the time of his I death. would determining the amount wages from received, the deceased would have purposes calculating 3108,1 benefits under applicable calculating a method similar to that wage-loss amount benefits under MCL may employed. 500.3107; MSA 24.13107 be I conclude, therefore, that survivors’-loss ben- may calculated, efits be in cases in which the temporarily unemployed, deceased was on the ba- sis anof amount determined reference to the past analogous calculating income, deceased’s 24.13107(1). wage 500.3107a; loss under MCL MSA may I would also conclude such benefits calculated on the basis the amount of income wages from his the deceased would have received after temporary unemployment ended, similar conclusion the Court of 3107(b) construing § DAIIE, Lewis App (1979), 251; NW2d but when clearly such future can be estab- was, In event lished. the deceased potential No than evidence other the decedent’s future wages by plaintiff support income from submitted her claim loss, therefore, plaintiffs for survivors’-loss benefits. The extent of wages. limited to the loss of decedent’s income from Mich 51

70 428 by Separate Opinion Riley, C.J. be, a full-time student would have continued past have been future income would whose employ- part-time and seasonal derived reasoning approve ment, I would Kennedy Appeals Ins Auto-Owners Court of Co, (1978). App 93; 273 NW2d present case, I the Court would affirm In the Appeals calculation of the trial court’s reversal plain- salary basis of the benefits on the survivors’ if he would received tiff’s decedent Forestry by employed the United States been have Service. agree Appeals that the I with the Court of presented was insufficient evidence finding plaintiff’s have decedent would factual been disagree, by employed forestry I service. holding that, however, plaintiff’s because with the Court’s unemployed, otherwise decedent was any under not benefits entitled should I hold that survivors’ benefits 3108. would annualizing by plaintiff’s decedent’s calculated originally proposed past the manner income in and, therefore, remand this court,2 would the trial to the trial court for the recalculation case Finally, I of that method. on the basis benefits attorney penalty interest and would address fee which, of the Court of issues because thoroughly disposition case, ad- were dressed. trial, successfully the trial court to limit moved Prior to defendant any to the method

the provided award of survivors’-loss benefits calculation expressly plain Although found 3107a. employment secured with United decedent would have tiffs Service, begun have that that would States court, approximately consistent with six after his months ruling, annualiz were to be calculated its earlier held that benefits employment pursuant ing from his last the decedent’s however, posttrial practice, the court some motion 3107a. After original opinion to be and held benefits were its amended calculated on fringe salary the decedent the basis of the service, during employment with the his would have received unemployment temporary have his ended. after v Auto-Owners Separate Opinion by Riley, C.J.

I Survivors’-loss benefits consist two elements. The first concerns the loss of "contributions tangible things of economic value” that the de- dependents ceased’s would have received for their support during their dependency, and the second concerns expenses in incurred obtaining certain in services lieu of those which the deceased would Miller v State Farm Mutual performed. have Ins Co, 538, (1981). 410 554; Mich 302 NW2d 537 case, Miller, in issue as in concerns only Likewise, first element. the issue in this case con- cerns plaintiff "contributions” would have from income from received her decedent’s wages.3

While tangible loss of "contributions things of economic value” compensable under 3108 differs substantially theory and scope § from the loss of income compensable under § the calculation of benefits under each is section respects.4 similar in some purposes For calculat- ing survivors’-loss benefits under this element of 3108, for example, survivor need not establish § the amount of support financial would she have actually Rather, received from the deceased. once established, dependency is benefits are calculated on the gross basis income the deceased received, adjustment less an for pay- taxes, income without able the deduction of a Miller, Thus, supra. personal consumption factor.5 dependent cases which a survivor claims 3 present solely The survivors’ benefits award in the case was based dependent plaintiffs support loss of from the decedent’s wages. from 4 Co, 231; Casualty Surety See Belcher Aetna & 409 Mich 293 (1980). 594 NW2d 5 language substantially While the nature and of 3108 differs from § 3107a, Miller, supra, our construction of 3108 in renders 428 Separate Opinion Riley, C.J. solely loss the basis of the

benefits under from the received have she would of contributions wage income, calculation of benefits deceased’s upon dependent entirely the amount of paid for cases, benefits "survivors’ In such income. partial regarded may fairly support aas loss of . . . for work-loss substitute person injured paid .” . . . have been Surety Casualty Co, 409 Mich & v Aetna Belcher (1980). 231, 249; 293 NW2d ii present case, claimed survivors’- In the included loss benefits which loss the deceased’s plaintiff’s

wage denied income. Defendant things, among her because, other claim at the a "full time student” was deceased husband "temporar- such, and, as of his death time ily meaning unemployed” no- of the within position Initially, not defendant’s it was fault act. inapplicable; rather, defendant § 3107a was that viewed plaintiff’s of the claim claim derivative as wage-loss benefits would have had for husband her and reasoned that, not have he would because plain- 3107a, to under such benefits been entitled un- benefits not entitled to survivors’-loss tiff was §der 3108. trial, Court of to the commencement

Prior Kennedy, its decision had released expressly rejected supra, defendant’s it qualify could that a full-time student assertion temporarily unemployed. trial, At defendant as plaintiff to to contended, first, was not entitled that had failed because she survivors’-loss dependent’s loss of based on of survivors’ benefits calculation wages virtually identical to from the decedent’s income wage loss. calculation of Co Auto-Owners Ins Separate Opinion Riley, C.J. any support. establish actual loss of financial -De- plaintiffs fendant reasoned because roughly commensurate in amount to the de- they relatively ceased’s, and that both contributed equal plaintiff support, amounts their to collective any would not be able to establish actual loss. plaintiff Second, defendant contended that if were benefits, to entitled survivors’-loss the amount only could be calculated on the basis of the dé- past employment, opposed poten- ceased’s as to his employment, tial future because do so on the basis the latter would be tantamount to calcu- lating earning benefits on the basis future ca- pacity. rejected

The trial court defendant’s first conten- contrary tion as to this Miller, Court’s decision in supra, personal consumption in which the factor expressly Finding plaintiff issue was decided. dependent deceased,6 was a and that she had loss, sustained survivors’ the trial court ruled that was entitled to recover and that the remaining question proper concerned the method computation. partial agreement In with defen- initially, dant, ruled, the court that benefits could not be calculated on the basis of the deceased’s potential future Instead, income. the court ruled proper computation method of require past the annualization of the deceased’s pursuant rejected income defendant’s assertion 3107a. The court pursuant Kennedy,

that, supra, benefits should not be annualized on a full- annualizing basis, time but should be limited part- the deceased’s income on a seasonal or time The court found basis. that the deceased by Appeals, plaintiffs dependency As noted the Court of within meaning undisputed; conclusively pre the act was she was dependent pursuant sumed to be a of the deceased to MCL 24.13110(l)(a). 500.3110(l)(a); MSA 428 Separate Opinion Riley, C.J. employment on the full-time

would have secured past history, he that work of the deceased’s basis completed received and in fact had his studies had posthumously, degree he had no immedi- that his returning plans school, that his for ate pursue found, plans The court his career. were plaintiffs have furthermore, decedent would that employed by Ser- the United States been vice as mately beginning approxi- forester, a full-time though after his even six months could that benefits remained convinced the court not salary properly on the calculated basis be from that

the decedent would have received employment. Thus, court annualized de- employment, past from seasonal income ceased’s on stipulated to an amount basis of parties, in an annual which resulted $9,755.06. amount of plaintiffs ruling in defendant’s favor

After counts, the court decided faith and fraud bad attorney penalty fee interest and issues. penalty interest, limited that award but awarded computed by ruling penalty interest was be only actual on the deceased’s unannualized begun income, and such interest would have decision to accrue after Court penalty Kennedy. interest The court ruled begin January 1979, 1, accrue after would undisputed computed only his last income from amount of the deceased’s employment, to that extent de- because seasonal deny having reasonable received fendant could not proof ruled that The court also of loss. attorney after to recover fees incurred was entitled January that, because 1979. The court reasoned Kennedy, also the defendant defendant was denying plaintiffs expressed claim the reason rejected by expressly present case was Gobler v Auto-Owners by Separate Opinion Riley, C.J. Kennedy Court, that after the of date that decision unreasonably plaintiffs defendant had denied regard calculating claim, at least with benefits undisputed on the basis amount of the deceased’s actual income. ruling, prior entry

After its initial but to the judgment, plaintiff successfully moved original ruling regard amend its with to the proper upon basis which to calculate survivors’- Relying upon supra, Lewis, loss benefits. and the express finding plaintiffs court’s factual dece- employed dent would have been the United Forestry plaintiff argued Service, States that survi- vors’-loss benefits should be calculated on the basis salary fringe and benefits the deceased employment. would have from received that future ruling The trial court amended its earlier accord- ingly, judgment plaintiff, and entered calculat- ing survivors’-loss benefits the basis its ear- finding plaintiffs lier decedent would have salary annually, plus $11,046 $2,000 received a fringe $13,046. benefits for a total

hi I would affirm the Court of reversal of the trial court’s calculation of survivors’-loss bene- salary fringe fits on the basis of the the deceased would have if he

received employed by been the United States Ser- case, vice. The record in this which includes an inquiry availability that was forwarded testimony deceased sometime after his concerning forestry of a recruitment officer service employment policy process, plaintiffs and the testimony regarding aspira- career deceased’s tions, does not establish that the deceased would employed by have been service. When 428 Separate Opinion Riley, C.J. wages deceased would have tempo- employment after his from future received rary employment clearly can would have ended agree established, ben- I would that survivors’-loss appropriately be calculated efits should income. In cases in which that future basis begin at some future contract accepted prior date was concluded—offered — example, accident, for motor vehicle to the fatal properly could be calculated survivors’-loss benefits future income amount. Cir- the basis of that tending that to show cumstantial evidence particular employ- could have secured deceased three-year statutory time ment at some within agree period, however, I with would be insufficient. in this of that the record case the Court only the latter. establishes temporarily In in which the deceased was cases unemployed in the time of his and which at by cannot be established his future convincing degree evidence, of clear and some wage income loss from deceased’s survivors’ the deceased’s calculated on the basis of should be calculating wage analogous loss to underlying light pursuant In to 3107a. objectives purposes §of and the no-fault and whole, it to a would not be reasonable act as conclude Legislature’s probable most in- completely payment any deny tent was dependent in such survivors cases. benefits provi- specifically include a 3108 does not While § 3107a, it it similar to should be noted sion specific any does not include reference also language wages. considering Further, the broad surprising. § 3108, I not find the omission do persuaded applying Rather, a method of I am analogous applies in to that which calculation Ins Auto-Owners Co Separate Opinion Riley, C.J. calculating wage loss in such would cases be con- sistent with the underlying purpose public interpreted of the act as policy through the deci- Miller, sions Court. supra, As stated 568: itself, whole, and the act as a [Section] presumably ture between Legisla- reflect balance struck precision

absolute factual "assured, goal calculation of adequate, reparation prompt for certain eco- nomic losses.” Legislature

Inasmuch as the intended survivors’- loss benefits to possible be calculated as soon as given case, after the fatal accident allowing any the application of a analogous method 3107a in cases in which the deceased temporarily unemployed surely further objective "minimiz[ing] administrative delays and factual disputes that would interfere with achievement the goal expeditious compensation damages suffered motor vehicle accidents.” Id.

Therefore, I would reverse the decision of the Court of Appeals this remanding case for entry action, no cause of and would remand this case the trial the recalculation of benefits pursuant provided 3107a, to the method in § consistent with the ruling court’s initial re- as opinion 8, flected its of December 1981. regard

With to the attorney penalty fee and issues, interest I would conclude that the factual upon findings which the trial judgment court’s was based were not I clearly empha- erroneous. would size that the issues addressed on in the appeal Court of Appeals and in this Court not were directly presented court, in the trial do they nor reflect the reasons expressed by sup- defendant 428 Mich 51 Separate Opinion Riley, C.J. denial continuing complete

port of its initial and claim.7 plaintiff's that defen- premise the trial court’s Accepting having had charged with was to be properly dant decision knowledge of the Court supra, I not convinced Kennedy, am unreasonably con- defendant finding that court’s claim deny plaintiffs to completely tinued was Thus, I deci- clearly erroneous. would reverse Appeals reversing Court of award sion Likewise, fees. I would conclude attorney interest penalty the trial court’s limited award 24.13142(2) 500.3142(2); MCL MSA pursuant had received reason- not erroneous. Defendant was the limited respect of loss with proof able interest was penalty amount upon overdue awarded.

Thus, I remand case for a recalcula- benefits, and in all other of survivors’-loss tion judgment. trial court’s respects would reinstate Griffin, J., took in the of this part no decision case. denial of reflects that the reason for defendant’s record plaintiffs qualify plaintiffs did "tem claim was that decedent not as trial, meaning porarily unemployed” At within the of 3107a. defen § that, plaintiff argued under if were entitled to benefits § dant the calculation of any pro should limited to the method award assert, prior appeal to its

vided in 3107a. Defendant did any recovery Appeals, not entitled Court inapplicable calculating entirely 3107a is whatsoever because 3108. survivors’-loss benefits under

Case Details

Case Name: Gobler v. Auto-Owners Insurance

Court Name: Michigan Supreme Court

Date Published: Apr 20, 1987

Citation: 404 N.W.2d 199

Docket Number: 76011, (Calendar No. 13)

Court Abbreviation: Mich.