JOHNSON V RECCA
Docket No. 143088
Supreme Court of Michigan
July 30, 2012
Argued April 4, 2012 (Calendar No. 3).
492 MICH 169
In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices MARY BETH KELLY and ZAHRA, the Supreme
Because replacement services is not among the benefit categories listed in
- Although the no-fault automobile insurance act,
MCL 500.3101 et seq. , generally abolished tort liability arising from the ownership, maintenance, or use of an automobile,MCL 500.3135 provides several exceptions to the general rule. One exception, set forth inMCL 500.3135(3)(c) , is for damages for allowable expenses, work loss, and survivor‘s loss as defined inMCL 500.3107 toMCL 500.3110 in excess of the daily, monthly, and three-year limitations contained in those sections. BecauseMCL 500.3135(3)(c) does not refer to replacement services, damages for replacement services are not recoverable under the statute. - Replacement services is not a category of allowable expenses. Rather, allowable expenses and replacement services are seрarate and distinct categories of personal protection insurance (PIP) benefits. Although replacement services was a category of work-loss benefits before 1992, each category of PIP benefits—allowable expenses, replacement services, and work loss—is currently described in a separate subdivision of
MCL 500.3107(1) . The separation of replacement services from work-loss benefits did not render replacement services a category of allowable expenses. Rather, the statutory organization clearly indicates that replacement services remain distinct from allowable expenses. MCL 500.3107(1)(a) states that allowable expenses consist of all reasonable charges incurred for reasonably necessary products, services, and accommodations for an injured person‘s care, recovery, or rehabilitation. In Griffith v State Farm Mut Auto Ins Co, 472 Mich 521 (2005), the Supreme Court stated that care may encompass expenses for products, services, and accommodations that are necessary because of the accident but may not restore a person to his or her preinjury state. However, allowable expenses do not include expenses for products or services that are required after the injury in a manner indistinguishable from those required before the injury. Services that were required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself because of the injury, are replacement services.- Other statutes containing general rules regarding the recovery of economic losses do not provide any basis for concluding that replacement services constitutes a category of allowable expenses. It is entirely possible that the Legislature might have intended to
include or exclude replacement services from some categories of no-fault benefits but not others depending on the scope and contours of those benefits, and the interpretation of the statute at issue is thus not absurd.
Judgment of the Court of Appeals reversed in part; circuit court‘s grant of summary disposition in favor of Recca on plaintiff‘s economic damages claim for excess replacement services expenses reinstated; leave to appeal with respect to Recca‘s remaining issue denied.
Justice HATHAWAY, joined by Justice MARILYN KELLY, dissenting, asserted that the Legislature intended to allow recovery of excess expenses for replacement services in third-party tort actions. Before the effective date of 1991 PA 191, expenses for replacement services were recoverable in a third-party tort action because they were a part of work-loss damages. In 1991 PA 191, thе Legislature separated expenses for replacement services from work loss, but there is no indication in the statutory language or the legislative history that the Legislature intended that replacement services be treated differently before and after the amendment. Rather, the amendatory act was only intended to make changes with regard to work-loss benefits for persons over the age of 60. The majority‘s reading of the statutory language failed to consider all the language in
Justice CAVANAGH concurred in the result proposed by Justice HATHAWAY‘s dissenting opinion.
INSURANCE—NO-FAULT—PERSONAL PROTECTION INSURANCE BENEFITS—ALLOWABLE EXPENSES—REPLACEMENT SERVICES.
Damages for replacement services that are in excess of the daily and three-year limitations contained in
Skupin & Lucas, P.C. (by Joseph F. Lucas), for plaintiff.
Garan Lucow Miller, P.C. (by Daniel S. Saylor), for defendant.
Amicus Curiae:
Willingham & Coté, P.C. (by Kimberlee A. Hillock and John A. Yeager), for the Insurance Institute of Michigan.
I. FACTS AND HISTORY
In July 2004, while walking through a gas statiоn parking lot, plaintiff was struck by a motor vehicle driven by defendant, who was insured by Allstate Property and Casualty Insurance Company. At the time, plaintiff lived with Harrietta Johnson, her ex-mother-in-law. Neither woman owned a vehicle, and neither was insured. Plaintiff filed a third-party tort claim against defendant, seeking damages for replacement services pursuant to
II. STANDARD OF REVIEW
We review de novo motions for summary disposition brought under
III. ANALYSIS
At issue is whether, in a third-party tort action, damages for replacement services are recoverable pursuant to
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person‘s care, recovery, or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except if the injured person requires special or intensive care, or for funeral and burial expenses in the amount set forth in the policy which shall not be less than $1,750.00 or more than $5,000.00.
(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his or her claim reasonable proof of a lower valuе of the income tax advantage in his or her case, in which case the lower value shall apply. Beginning March 30, 1973, the benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. Beginning October 1, 1974, the maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner [of the Office of Financial and Insurance Regulation] but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.
(c) [Replacement services] Expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had
not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent. [Emphasis added.]
Although the no-fault act generally abolishes tort liability arising from the ownership, maintenance, or use of a motor vehicle,
Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by [
MCL 500.3101 ] was in effect is abolished except as to:*
*
*
(c) Damages for allowable expenses, work loss, and survivor‘s loss as defined in [
MCL 500.3107 toMCL 500.3110 ] in excess of the daily, monthly, and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured. [Emphasis added.]
“An overarching rule of statutory construction is that this Court must enforce clear and unambiguous statutory provisions as written.” United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass‘n (On Rehearing), 484 Mich 1, 12; 795 NW2d 101 (2009) (USF&G) (quotation marks and citation omitted).
IV. THE COURT OF APPEALS ERRED
Contrary to our present holding, the Court of Appeals held that damages for replacement services are recoverable in a third-party tort action. Johnson, 292 Mich App at 249. Apparently in agreement with our conclusion that only damages for those categories of PIP benefits actually mentioned in
A. STATUTORY ORGANIZATION
The first and most obvious criticism of the Court of Appeals’ conclusion that replacement services constitutes a subcategory of allowable expenses is that this simply overlooks the Legislature‘s own statutory organization, which makes clear that allowable expenses and replacement services constitute separate and distinct categories of PIP benefits. “Allowable expenses”
“We interpret th[e] words in [the statute in] light of their ordinary meaning and their context within the statute and read them harmoniously to give effect to the statute as a whole.” People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011). Statutory interpretation requires courts to consider the placement of the critical language in the statutory scheme. USF&G, 484 Mich at 13. In doing so, courts “must give effect to every word, phrase, and clause in a statute and avoid an interpretation thаt would render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). The Court of Appeals’ interpretation improperly rendered the Legislature‘s organization nugatory by giving no effective meaning to the Legislature‘s compartmentalization of “allowable expenses” and “replacement services.”5
B. GRIFFITH V STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
The Court of Appeals also misread our decision in Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005). In Griffith, the plaintiff was severely injured in a motor vehicle accident. After the plaintiff returned home from a nursing facility, the defendant insurance company denied the plaintiff‘s claim for food costs,6 and the plaintiff brought suit, alleging that food costs constituted allowable expenses. This Court rejected that argument, explaining that in
the statute does not require compensation for any item that is reasonably necessary to a person‘s care in general. Instead, the statute specifically limits compensation to charges for products or services that are reasonably necessary “for an injured person‘s care, recovery, or rehabilitation.” (Emphasis added.) This context suggests that “care” must be related to the insured‘s injuries. [Id. at 534.]
We further clarified:
[I]f Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now. We conclude, therefore, that his food costs are completely unrelated to his “care, recovery, or rehabilitation” and are not “allowable expenses” under
MCL 500.3107(1)(a) . [Id. at 536.]
Citing Griffith, the Court of Appeals reasoned:
Considered within the definition of “care” in
§ 3107(1)(a) provided by the Supreme Court in Griffith, replacement services are services for the “care” of an injured person. Replacement services are those services performed by another that the injured person would have performed for his or her benefit or the benefit of dependents had the person not been injured.MCL 500.3107(1)(c) . Consequently, replacement services are services that are needed as the result of an injury sustained in the motor vehicle accident. See Griffith, 472 Mich at 535. . . . Because replacement services are services for the “care” of an injured person, we conclude that replacement-services expenses are not separate and distinct from allowable expenses; rather, they are merely one category of allowable expenses. [Johnson, 292 Mich App at 246-247.]
The Court of Appeals’ wholesale inclusion of “replacement services” as a subcategory of “allowable expenses” rests on its overly expansive reаding of Griffith. Although it can be fairly said that “replacement services are services that are needed as the result of an injury,” id., at 246, it does not follow that they fall within the definition of “care” set forth in Griffith. Accordingly, it does not follow that replacement services constitutes merely a subcategory of allowable expenses.
As we noted in Griffith, “the statute does not require compensation for any item that is reasonably necessary to a person‘s care in general.” Griffith, 472 Mich at 534 (emphasis added). Rather, such care “must be related to the insured‘s injuries.” Id. In Griffith, the plaintiff‘s
Services that were required both before and after the injury, but after the injury can no longer be provided by the injured person himself or herself because of the injury, are “replacement services,” not “allowable expenses.” They are services “in lieu of those that, if he or she had not been injured, an injured person would have performed . . . for the benefit of himself or herself . . . .”
In support of its interpretation, the Court of Appeals provided the following example:
[P]laintiff claims that before the accident she prepared her own meals, but since the accident and because of the back injury she sustained in the accident, she is no longer able to cook and [her ex-mother-in-law] does so for her. If a person injured in a motor vehicle accident cooked his or her food before being injured, but because of the injury sustained is no longer able to cook, any expense incurred in paying someone to cook for him or her is a replacement-service expense. But the expense is also conceptually an “allowable expense” because the cooking service is “care”
as defined in Griffith; it was necessitated by the injury sustained in the accident. [Johnson, 292 Mich App at 246-247 (emphasis added).]
The Court of Appeals was correct that because someone else must now, because of the injury, cook plaintiff‘s meals, cooking constitutes a replacement service. That is, it is an “ordinary and necessary service[] in lieu of [one] that, if he or she had not been injured, [plaintiff] would have performed” for her own benеfit.
As with the food in Griffith, there is no doubt that cooking is necessary for plaintiff‘s survival. However, cooking is not “care” pursuant to
For these reasons, our definition of “care” in Griffith does not support, but refutes, the Court of Appeals’
C. OTHER NO-FAULT PROVISIONS
The other provisions of the no-fault act cited by the Court of Appeals in support of its interpretation of
First, even if it is true that the foregoing provisions imply that replacement services should be included among the listed economic losses, nothing in them
Personal protection insurance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person‘s care, reсovery, or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except when the injured person requires special or intensive care, or before October 1, 1988 charges for funeral and burial expenses in excess of $1,000.00. Beginning October 1, 1988, benefits for funeral and burial expenses shall be payable in the amount set forth in the policy but shall not be less than $1,750.00 nor more than $5,000.
(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured and [replacement services] expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such lоss of income shall be reduced 15% unless the claimant presents to the insurer in support of his or her claim reasonable proof of a lower value of the income tax advantage in his or her case, in which case the lower value shall apply. Beginning March 30, 1973, the benefits payable
for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. Beginning October 1, 1974, the maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner [of insurance] but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of the change in the maximum. [Emphasis added.]12
The provision governing allowable expenses under the 1988 version of
expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first 3 years after the dаte of the accident, not for income but for the benefit of himself or herself or of his or her dependent. [
MCL 500.3107(b) , as amended by 1988 PA 312.]
Effective in 1992, the Legislature moved that portion of the work loss provision describing replacement services into its own subdivision,
V. RESPONSE TO THE DISSENT
This case is focused on a tension that exists within the no-fault act. On one side, the language of
The dissent, however, elects to ignore this tension and therefore concludes that this is a simple case. It finds little need to engage in statutory analysis, or to assess the implications of the statute‘s organization, but focuses on the exclusion of replacement services from the other no-fault provisions concerning economic losses. Thus, it has minimized exactly those aspects of this case that make it so difficult. By minimizing the obvious tension that defines the relevant provisions of the no-fault act, the dissent transforms a difficult interpretive task into an easy one.
To the extent that the dissent can be said to have actually considered the language and organization of the statute, it does so in the most cursory fashion, largely relying on a house legislative analysis, a staff-prepared summary of the law that this Court has previously described as “entitled to little judicial consideration” in the construction of statutes. In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d 597, 600 (2003). Further, even if in this instance the house legislative analysis did constitute a reliable indicator of the Legislature‘s intent, the specific analysis invoked by the dissent nonetheless fails to support its conclusion that replacement services are reсoverable in a third-party tort action. Rather, the dissent strains to
Where the dissent actually engages with the statutory language itself is almost exclusively in its assertion that the majority‘s interpretation renders “allowable expenses” nugatory in
Moreover, the dissent is internally inconsistent in this regard. On one hand, the dissent asserts that the reference to “allowable expenses” in
Perhaps, or perhaps not, recognizing this inconsistency, the dissent then proceeds to argue that “the more logical interpretation of [
None of these difficulties in giving reasonable and coherent meaning to
Nevertheless, the dissent concludes that our interpretation is “not consistent with the legislative intent,” post at 199, but, rather, constitutes “a systematic dismantling of significant sections of the no-fault act [that] produces absurd results,” post at 200. The dissent premises its conclusions on its idiosyncratic formulation of an “absurd results” doctrine.16 The rationale for the dissent‘s assertion that our analysis produces “absurd results” is entirely grounded in the fact that our interpretation excludes replacement services from not only the residual-tort-liability provision,
The justices in the majority have differences concerning whether the “absurd results” doctrine exists in Michigan.17 See Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 346 n 16; 791 NW2d 897 (2010) (MARKMAN, J., dissenting), overruled by Joseph v Auto Club Ins Ass‘n, 491 Mich 200; 815 NW2d 412 (2012). For those justices who do not believe the doctrine has a place in our jurisprudence, see People v McIntire, 461 Mich 147, 152-160; 599 NW2d 102 (1999), whether the dissent is correct or not that the results here can be characterized as “absurd” is inapposite: the words mean what they say, replacement services are not listed in
can see no logical basis to conclude that the Legislature intended this chaotic and arbitrary approach to the collection of no-fault benefits. . . . The far more reasonable interpretation recognizes that the Legislature intended
MCL 500.3135(3)(c) to allow excess expenses for ordinary and necessary services to be recovered in a third-party tort action. [Post at 206.]
However, the “absurd results” doctrine “must not be invoked whenever a court is merely in disagreement, however strongly felt, with the policy judgments of the Legislature.” Cameron, 476 Mich at 80 (MARKMAN, J., concurring). Still, the dissent fails to grapple with its obligations under the “absurd results” doctrine, preferring instead to summarily impose on the law its own characterization of the statute‘s unstated yet supposedly “obvious intent,” post at 198, which “obvious intent” should be allowed to trump the actual words and statutory organization enacted by the Legislature. As in Cameron, although perhaps the law in question here could have been made more consistent or more complete in some ways, we cannot conclude that it is “quite impossible” that the Legislature could have intended its results. At the very least, it is the burden of plaintiffs, not this Court, to explain why the results reached in this case are “quite impossible.” In the absence of this burden‘s being satisfied, those in the
Although it is not our burden to suggest conceivable explanations that would render the instant statute “not absurd,” one possible explanation for the exclusion of replacement services from
Although it may be that the “better” public policy would be to include replacement services in these other provisions of the no-fault act, this Court is not empowered to act as the people‘s lawmaker-in-chief. Rather, it must be assumed that the language and organization of
VI. CONCLUSION
In a third-party tort action, damages for excess allowable expenses, work loss, and survivor‘s loss are recoverable pursuant to
YOUNG, C.J., and MARY BETH KELLY and ZAHRA, JJ., concurred with MARKMAN, J.
HATHAWAY, J. (dissenting). This Court granted leave to examine whether
The general rule in third-party tort actions is that only noneconomic expenses are recoverable. However, certain statutory exceptions to this general rule exist. The issue before us is whether excess expenses for “ordinary and necessary services,” payable under
(3) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by [
MCL 500.3101 ] was in effect is abolished except as to:* * *
(c) Damages for allowable expenses, work loss, and survivor‘s loss as defined in [
MCL 500.3107 to500.3110 ] in excess of the daily, monthly, and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured. [Emphasis added.]
Under this subdivision, “[d]amages for allowable expenses, work loss, and survivor‘s loss as defined in [
The most important task in interpreting a statute is to determine the legislative intent,4 and “consideration of the whole act should govern in its interpretation.”5 Thus, at the outset, it is our duty to determine if the
It is undisputed that, before the enactment of 1991 PA 191, expenses for excess ordinary and necessary services were recoverable in a third-party tort action. Before the statute was amended, “ordinary and necessary services” were part of “work loss” damages as defined in MCL 500.3107(b), as added by 1972 PA 294. Swantek v Automobile Club of Michigan Insurance Group8 interpreted that version of MCL 500.3107(b) and found that the Legislature clearly intended that
Under the no-fault act, an insured may collect from his insurer for limited economic loss, i.e., work loss, [ordinary and necessary] services, and medical and funeral expenses without regard to fault.
MCL 500.3105(2) ,500.3107 . An insured may also sue the negligent tortfeasor for excess economic loss.MCL 500.3135(2)(c) . It is clear that the Legislature has divided an injured person‘s economic loss into two categories: loss for which the no-fault insurer is liable and loss for which the tortfeasor is liable.The right of action against the tortfeasor for excess economic loss exists in all categories in which the insurer‘s liability is limited by the statute: work loss, funeral cost, and [ordinary and necessary] services.9
In 1991 PA 191, the Legislature separated expenses for “ordinary and necessary services” from “work loss,” moving them from former MCL 500.3107(b) into a newly numbered subsection,
The amendment of
The bill would amend Chapter 31 of the Insurance Code, which deals with no-fault automobile insurance, to allow people 60 years of age and older to waive coverage for work loss benefits if they would not be eligible to receive them in the event of an accidental bodily injury (in an auto accident). . . . The waiver of coverage would only apply to benefits payable to the person or persons who had signed the waiver form.
Currently, work loss benefits cover 1) the loss of income from work . . . and 2) expenses up to $20 per day incurred in obtaining ordinary and necessary sеrvices in lieu of those that the injured person would have performed for himself or herself, or for a dependent, during the three years following injury. . . . The waiver of work loss benefits permitted under the bill would only apply to loss of income from work. [House Legislative Analysis, HB 4041, January 14, 1992, p 1.]
I also find the majority‘s analysis of the text of
Further, the majority‘s interpretation transforms expenses for ordinary and necessary services into some type of phantom category of benefits, subject to no discernible rules. This illogical and absurd outcome is best illustrated by understanding the chaotiс consequences that will result from the majority‘s sudden departure from the historical rule.13 For example, if expenses for excess ordinary and necessary services are no longer recoverable in tort actions simply because they are not specifically referred to in
Similarly, this newly crafted interpretation of
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor‘s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury. [Emphasis added.]
Under the majority‘s analysis of
I can see no logicаl basis to conclude that the Legislature intended this chaotic and arbitrary approach to the collection of no-fault benefits. It is our duty to interpret statutes in accordance with legislative intent, using sound logic and reasoning. The far more reasonable interpretation recognizes that the Legislature intended
Moreover, it is also important to recognize that the notion of expenses for ordinary and necessary services being recoverable in third-party tort actions is so well established and universally accepted that it has been incorporated into our Model Civil Jury
Finally, two members of today‘s majority found this same position persuasive in the past. In Kreiner v Fischer,16 Justices YOUNG and MARKMAN agreed that under
While the majority claims it has no choice but to interpret the act in this fashion, I disagree. It is the duty of this Court to interpret statutes in accordance with the intent of the Legislature and in a manner that does not produce absurd results. Accordingly, I respectfully dissent.
MARILYN KELLY, J., concurred with HATHAWAY, J.
CAVANAGH, J. I concur in the result proposed by Justice HATHAWAY‘s dissenting opinion.
Notes
“Replacement services loss” means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured person would have performed, not for income but for the benefit оf himself or his family, if he had not been injured. [UMVARA, § 1(a)(5)(iii); 14 ULA 44.]
Expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent.
Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred. [Emphasis added.]
Swantek v Auto Club of Mich Ins Group, 118 Mich App 807; 325 NW2d 588 (1982).A subtraction or reimbursement shall not be due the claimant‘s insurer from that portion of any recovery to the extent that recovery is realized for noneconomic loss as provided in [
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor‘s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized
The no-fault community, including insurers and insureds, has accepted Swantek‘s interpretation as controlling law notwithstanding the enactment of 1991 PA 191.Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred. [Emphasis added.]
The dissent also cites Kreiner v Fischer, 471 Mich 109, 114 n 2; 683 NW2d 611 (2004), overruled by McCormick v Carrier, 487 Mich 180 (2010), and the model civil jury instruction on economic and noneconomic losses in an action for third-party benefits involving comparative negligence, M Civ JI 36.15, in support of its analysis. While Kreiner did mention that damages for replacement services are recoverable in tort, the issue in Kreiner was whether the plaintiffs had satisfied the “serious impairment of body function” threshold set forth in