Lead Opinion
Plaintiff appeals as of right the trial court’s denial of his request for work loss benefits, penalty interest, and attorney fees. Defendant cross-appeals, arguing that the trial court incorrectly awarded the full cost of plaintiffs housing expenses. We reverse and remand.
We review a decision on a motion for summary disposition de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(0(10) where the proffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10); MCR 2.116(G)(4); Coblentz, supra at 568, quoting Maiden, supra.
With respect to plaintiffs first issue on appeal, MCL 500.3107(l)(b) provides that personal protection insurance benefits are payable for “ [w]ork 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.” A plaintiff must suffer a loss of income to be entitled to benefits under this section. Ross v Auto Club Group, 481 Mich 1,
Here, plaintiffs deposition testimony that he was regularly employed at Club Tequila as a bouncer at the time of his accidental injuries was corroborated by two fellow employees, Alvin Bright and Larry Howard, as well as by an affidavit from the person plaintiff claimed had employed him, Teion Crews. In response, defendant points out that the owner of Club Tequila denied ever having plaintiff as an employee. However, Crews later gave sworn testimony that plaintiff was an independent contractor rather than a direct employee. But, on the other hand, as defendant also points out, Crews’ testimony also indicated that plaintiff did not work as often as he claimed (and as Crews has previously averred) and, further, that plaintiff was not likely to have continued on as a bouncer in any capacity as a result of plaintiffs marijuana use.
Suffice it to say that this case was replete with factual questions surrounding plaintiffs employment at the time of the accident and thus his entitlement to wage loss benefits resulting from the accident. How often plaintiff worked, what he earned, his prospects for continued employment, whether he was an employee or an independent contractor and related questions are best left to the fact-finder; they were not properly resolved against plaintiff through a summary disposition order.
Further, we note that, while plaintiff freely admitted at his deposition that the wages he claimed he earned at Club Tequila were paid “under the table” and the record suggests that plaintiff failed to properly file income tax returns regarding any income he earned, his claim would not be barred under the wrongful conduct
In sum, we agree with plaintiff that factual questions existed with respect to his wage loss claim. The trial court improperly granted defendant summary disposition on that claim.
Turning next to defendant’s cross-appeal, we further conclude that the trial court erred by awarding plaintiff housing costs based on the full amount he currently pays for rent. This issue is governed by Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005). Although Griffith considered compensation for food expenses, it indicated, in dicta, that its reasoning and analysis would also apply to housing costs. Id. at 538. Under the Griffith analysis, plaintiffs housing costs are only compensable to the extent that those costs became greater as a result of the accident. Id. at 535-540. Plaintiff must show that his housing expenses are different from those of an uninjured person, for example, by showing that the rental cost for handicapped accessible housing is higher than the rental cost
Accordingly, we reverse the orders granting summary disposition to defendant regarding the wage loss claim and to plaintiff regarding the housing cost claim. In light of those determinations, we need not consider plaintiffs arguments regarding penalty interest and attorneys fees, which would be better addressed initially by the trial court following factual determinations as to timing and the propriety of plaintiffs no-fault insurance claims, as well as defendant’s actions in response.
We reverse and remand for further proceedings not inconsistent with this opinion. Neither party having fully prevailed, no costs shall be imposed. We do not retain jurisdiction.
Of course, the lack of earnings documentation is something for the fact-finder to consider in weighing plaintiffs work loss claim.
Dissenting Opinion
(dissenting). I believe that the trial court properly denied plaintiffs request for work-loss benefits, penalty interest, and attorney fees; therefore, I dissent in respect to the majority’s decision to reverse on that issue.
MCL 500.3158(1) provides:
An employer, when a request is made by a personal protection insurer against whom a claim has been made, shall furnish forthwith, in a form approved by the commissioner of insurance, a sworn statement of the earnings since the time of the accidental bodily injury and for a reasonable period before the injury, of the person upon whose injury the claim is based. [Emphasis added.]
Here, there is simply no question whatsoever that plaintiffs employer, although requested by Titan Insurance, failed to provide any documentation whatsoever of wages paid to plaintiff, much less provided documentation in accord with § 3158(1). There is no dispute about this, nor is there any dispute about the fact that plaintiffs employer provided no documentation because the employer maintained no records. Plaintiff worked “under the table.” It is, however, incumbent upon claimants to prove how much they would have earned had they not been injured in the automobile accident. Popma v Auto Club Ins Ass’n, 446 Mich 460, 472; 521 NW2d 831 (1994). Plaintiff and his employer
What makes this decision, I believe, particularly easy is that plaintiff and his employer were provided numerous opportunities to furnish the requisite sworn statement of plaintiffs earnings. The case languished for years; subpoenas were issued for such records and documentation, and depositions were scheduled. Yet the information was never provided. This is not a situation where an injured employee is being punished because of a recalcitrant employer stubbornly or neglectfully failing to provide proof of income.
When one chooses to accept employment for which he or she will be paid “under the table,” surely there may be some negative repercussions, and people who make such decisions should expect some. Because of his own and his employer’s actions, I believe plaintiff forfeited
Additionally, there is no authority, nor has the majority cited any, for the creation of an exception to § 3158(1). The other employees of plaintiffs employer, also paid under the table, have indeed submitted affidavits and other evidence, but it is all conflicting. Moreover, without plaintiffs satisfying the requirements of § 3158(1), the issue should be examined no further. The courts cannot create “a genuine issue of material fact” as the majority concludes there is where the initial statutory requirement has not and cannot be met. The simple fact of this case is that plaintiff cannot provide documentation as required under the statute to make a claim for wage-loss benefits. It is profoundly unfair to allow a judicially created means to collaterally attack the requirement that such documentation be provided because it puts the no-fault insurance carrier in an untenable position. It has no way whatsoever to dispute or prove — when it is not its burden of proof— the amount the plaintiff was earning at the time of the accident. It creates a situation rife with the potential for fraud, frankly, what seems to be precisely the case here. Moreover, we must look at the no-fault statute in its entirety to interpret it harmoniously. When one reads MCL 500.3107(l)(b), that portion of the statute that sets forth in detail the computation of work loss for an injured party, it is again patent that the calculations must stem from the documentation received from the employer as to how much the injured claimant was earning.
In conclusion, the unfortunate ramification for plaintiff in this case who chose to work “under the table” is that he cannot meet the statutory requirements for documenting his wages. Nor can his employer supply the requisite proof by any other means. Without documentation of the amount he was allegedly earning, I do not believe he can prove a claim for work-loss benefits under MCL 500.3107(l)(b). Summary disposition is proper under MCR 2.116(C)(10) where the evidence fails to establish a genuine issue regarding any material of fact, and the moving party is entitled to judgment as a matter of law. Here, there is no genuine issue of the material fact that plaintiff cannot and did not provide the requisite statutory documentation in respect to his earnings at the time of the accident. The statute requires that he provide such documentation when the insurer, here, Titan, so requests. Because there is no genuine issue regarding that fact, defendant was entitled to summary disposition as a matter of law, and the trial court was correct in doing so.
I would affirm the trial court on this issue.
I can envision factual situations where this Court might consider such evidence to prove a work-loss claim.