*1 Popma v Auto Club Ins Ass’n POPMA v AUTO CLUB INSURANCE ASSOCIATION 10, 1992, Rapids. Docket No. 136525. Submitted at November Grand 18, 1993, May appeal sought. Decided at 9:10 a.m. Leave to Jr., Popma, brought Edward an in action the Kent Circuit Court against Association, seeking Auto Club Insurance no-fault already voluntarily paid in work-loss benefits addition to those by the defendant. The defendant had based the amount its voluntary payments part- on the income from the employment injury. he held at the time of the The plaintiff claimed that his work-loss benefits should be based on employment, income his last full-time which he had left court, Benson, three months before the accident. The Robert A. J., granted summary disposition plaintiff, holding for the that payable work-loss benefits under these circumstances were pursuant act, to 3107a of the no-fault MCL 24.13107(1), which the work-loss benefits of a temporarily unemployed claimant shall be based on the income employment, in ordering earned the last month of full-time pay $25,700.70 the defendant to additional in court, however, permit work-loss benefits. The did the defen- against liability dant set off its work-loss the social disability payable injury as a result of the incurred in accident, including paid directly the automobile the amount plaintiff’s attorney compensation for services rendered in appealed, the social benefits. The defendant appealed. cross Appeals The Court of held: clearly applicable only persons 1. Section 3107a is who are
temporarily unemployed injury at the time of an accident or wage apply persons, results loss and does not such as plaintiff, part-time employment who have at the time the having gainful any employment occurs. A is an employed for of the work-loss References 2d, Am Jur Automobile 368. Insurance §§ Validity plans providing and construction of no-fault insurance payable by reduction of benefits otherwise amounts receivable independent collateral sources. 10 ALR4th 996. 199 and, thus, subject wage-loss payment the no-fault act 3107(l)(b), 24.13107(1) provisions MCL (b). Accordingly, calculating plain- the trial court erred tiff’s work-loss benefits to 3107a. The order award- ing work-loss benefits is reversed. *2 properly 2. against The court allowed the defendant to set off liability security its work-loss the entire amount of social plaintiff entitled, including benefits to which the the paid directly attorney amount to his for services rendered in securing expressly by those benefits. Such a setoff is authorized the no-fault act and is consistent with the act’s intent to reduce basic insurance costs. part part. Affirmed in and reversed in J., concurring, stated that while it was error to Connor, determine work-loss benefits to 3107a under these circumstances, proper pursu- the measure of work-loss benefits 3107(l)(b) earnings ant is the loss of of the three-year period following for the the which is not necessarily by injured person’s earnings determined the at the injury. Accordingly, time of the accident and the matter should permit be plaintiff remanded to the trial court to the the opportunity present proofs concerning anticipated earn- ings period. for that — — — 1. Insurance No-Fault Work-Loss Benefits Part-Time Employment. person employed part-time A the time of an automobile injury employed person accident out of which an arose is an determining benefits; the no-fault work-loss regarding of the no-fault act work-loss benefits of temporarily unemployed persons applicable is not to a any gainful employment who has at the time of the accident or (MCL injury 500.3107[l][b], 24.13107[l][b], 24.13107[1]). — n n — — 2. Insurance No-Fault Work-Loss Benefits Social Secu- rity Disability — Attorney Benefits Fees. against An insurer is entitled to set off its no-fault work-loss liability pay- amount of social benefits to an able insured result of the that resulted in liability, including any work-loss .amount attorney by Security the insured’s the Social Administration as payment by for services rendered (MCL 500.3109[1]; 24.13109[1]). social Szczytko (by Williams, Klukowski, Fotieo & Mi- Szczytko), plaintiff. chael P. for the Popma v Auto Club Ins Ass’n Opinion of the Court Nancy Bosh, L. for the defendant. P.J.,
Before: Mackenzie, and and Griffin Con- nor, JJ. appeals right
Per Curiam. Defendant as of granting disposition summary an order in favor of ordering pay plaintiff defendant $25,700.70 in work-loss benefits. Plaintiff cross appeals part entitling of the order defendant to a setoff for social benefits received plaintiff. part part. We affirm in and reverse in substantially undisputed.
The facts are Plaintiff right suffered a fracture of the femur in a one-car September accident occurred on 1988. He working following was disabled from Defendant is the accident. no-fault At insurer. issue is the amount of work-loss benefits to which is entitled. *3 history
Plaintiff’s work is as follows. Plaintiff sporadically Rapids, worked in Grand the State of Gaylord high Texas, and after he left in school his junior year. being unemployed years, for two Georgia, spent years he went he where 2 Vi working industry. Upon in the construction his Michigan January 1987, return to in went City, days to Traverse where he worked eleven hung drywall oil an period, field. Plaintiff for a brief Rap- then in June 1987 returned to Grand Manpower ids, he where worked for until March 1988. Plaintiff also worked at Norm’s Restaurant September February from 1987 until 1988. He job doing general maintenance, then obtained a February which he held from until March 1988. quit Manpower he When and maintenance jobs, plaintiff apprenticeship program entered an working Electric, for Newkirk but was off laid ap- after one week. Plaintiff next worked as op Opinion the Court prentice Hydaker-Wheat- substation electrician for 18, lake in Traverse Company City April 2, until June 1988. Plaintiff $10.47 an hour at job, this but was terminated for inabil- to work ity ground. above the Plaintiff remained City hanging Traverse for a few weeks drywall, quit then and returned Rapids. to Grand He re- ceived unemployment benefits and also returned to limited Beginning 18, 1988, work. about August continuing accident, until the date of his again worked for Manpower. He also worked at Norm’s Restaurant about ten hours a week.
i Defendant paid plaintiff work-loss benefits of $6,215, calculated at a week —the amount he $55 was earning at the time of his accident —for 113 claimed, weeks. Plaintiff trial court agreed, that his work-loss benefits should have computed been on the basis of his wages his last full-time employment before the the job at Hydaker-Wheatlake. 24.13107(l)(b)
MCL for the payment personal protection insurance benefits for consisting loss of loss of income from work
[w]ork an injured person performed during would have the first 3 years after the date of the accident if he or she had not been ....
The trial court’s award of benefits was based on MCL 24.13107(1), which provides: *4 Subject provisions of [MCL MSA 24.13107(l)(b)], injured per- work loss for an son who temporarily unemployed at the time of Popma v Auto Club Ins Ass’n Opinion of the Court during period accident or of disability shall be based on earned income for the last month employed preceding full the accident. [Em- phasis added.] We with defendant the trial court awarding erred in benefits to on the basis statute, § of the latter 3107a. It is clear from a reading Legislature of the two statutes that has fit seen to authorize work-loss benefits for persons only whose work status falls within one of categories employed temporarily two or unem- — ployed. Irrespective of the nature of the work being performed, underemployed person is, employed. employee definition, Plaintiff, as an Manpower Restaurant, both and Norm’s was em- ployed at the time of the accident. He was there- 3107(l)(b) fore § entitled to benefits as set forth in and not 3107a.
This conclusion is consistent with the
enacting
Legislature
§ 3107a,
3107a. In
in-
protect persons
regular employ-
tended to
whose
suspended
temporarily
ment has been
as a result
temporary
of its seasonal nature or
because
layoff. See MacDonald v State Farm Mutual Ins
Co,
419
n attorney After his hired an secure social benefits for him. paid, These benefits were fee was attorney by sent the Social Security Administration.
658
199
653
Mich
op
Opinion
the Court
ruling
on the amount of no-fault work-loss
payable
plaintiff,
benefits
to
the trial court held
equal
that defendant was entitled to a setoff
to the
entire amount of social
benefits
paid
plaintiff,
including
paid
the amount
plaintiff’s attorney
compensation
security
appeal,
the social
plaintiff
benefits. In his cross
disagree.
contends that this was error. We
plaintiffs
Neither
the fact
re-
Security
ceived his fee
from the Social
money
Administration nor the fact that this
never
passed
actually
through plaintiffs
precludes
hands
a setoff for the entire amount of social
disability
benefits to which
was entitled.
Thompson DAIIE,
610,
See
(1984);
Perez v State Farm Mutual
Co,
634,
Automobile Ins
418 Mich
645-646; 344
(1984); Gregory
Co,
NW2d 773
425
v Transamerica Ins
(1986);
635-636;
Mich
Affirmed in reversed (concurring), my J. I with Connor, col- leagues that defendant was entitled to setoff equal to the entire amount of social bene- paid plaintiff, including fits the amount plaintiff’s attorney. *6 "underemployed” clearly
I also that not "temporarily unemployed.” the same as The trial granting plaintiff summary disposi- court’s order awarding § tion and work-loss benefits under 3107a majority opinion However, must be reversed. the misapprehension fails to address the trial court’s plaintiff’s unfairly that benefits would be dimin- they ished if were to be determined under 3107(l)(b) merely underemployed § he because at the time his accident. 3107(l)(b), applying
Defendant, calculated plaintiff’s work-loss on the basis of the earning amount he was at the time of his a week. trial court The ordered that $55 (us- benefits be redetermined to 3107a ing the income basis his income at his last full- employment), time because the court determined penalized accepting should not be for part-time employment, only at the available work the time of his accident. appropriate pay-
The no-fault work-loss benefits person underemployed to an able is set forth 3107(l)(b), part: which protection pay- insurance benefits are [P]ersonal following: able for the App 199 Mich 653 [May- 660 by Connor, Concurrence J. consisting Work loss of loss of income from work person performed during injured an would have years date of the if he first after the accident had not been .... [MCL 24.13107(l)(b).] The amount of money underemployed in the three of the years would earn after date question Nothing accident is a in the fact. states the income must be calcu- person’s earnings lated on the basis of the v Kirksey Manitoba occurred. Corp, Public Ins 191 Mich NW2d underemployed An is entitled to increased work-loss benefits if it can be demon- that, strated but convincingly injury, higher during income would have been earned years three after the date of the accident. remand, permitted should be his present proofs regarding anticipated loss performed income from work he would have dur- ing the first three after the date of the years if injured. accident he had not been