*1 WARNER v BRIGHAM 7, 1979, February Docket Lansing. No. 78-838. Submitted at Decided 6, June 1979. Linda K. Warner was when the car in which she was riding by by was struck an automobile driven Michael A. Brigham. Warner, Warner, husband, Mrs. William H. her Warner, Jr., son, William H. brought her against an action Brigham Michael A. to recover for noneconomic losses suffered accident, alleging as a result of function and The Wash- Court, Deake, J., tenaw Circuit Edward D. dismissed William plaintiffs appeal. Warner’s claim for loss consortium. The appeal The sole issue on is whether the trial court erred in holding that loss of consortium does not survive under the no- fault automobile insurance act. Held: A cause of action for loss of consortium does survive under injuries by plaintiffs no-fault act where the meet the threshold of the no-fault act. The requirement suffered Mrs. Warner met this and Mr. press Warner is entitled to his claim for loss of consortium. Reversed and damages remanded for trial on the issue of suffered Mr. Warner. Bashara, P.J., Legislature, dissented. He would hold that the enacting act, intended to abolish the contemplated common-law derivative tort an action for loss of consortium. He would affirm. [8] [6] [7] [2] [5] [3] [4] [1] New New 73 Am Jur 73 Am Jur New 73 Am Jur New 73 Am Jur 16 Am Jur New Topic Topic Topic Topic Topic Service Am Jur Service Am Jur Service Am Jur Service Am 2d, Service Am Jur 2d, 2d, 2d, 2d, References Constitutional Law 550. Statutes Statutes Statutes Statutes Jur §§ §§ §§ for Points 314-316. 2d, 2d, 145, 146, 194, 2d, 2d, 2d, No-Fault Insurance 15.§ No-Fault Insurance 14.§ No-Fault No-Fault Insurance No-Fault Insurance 15.§ 195. § in Headnotes Insurance § 195. §§ 26. 26. — — — Tradi- Automobiles No-Fault Insurance 1. Insurance — Liability — Requirements Stat- Tort Threshold tional *2 utes. provision act no-fault automobile insurance which
The of the liability arising out of the of the traditional tort abolishes much of motor vehicle does retain maintenance or use a liability are if certain threshold traditional tort crossed, parties step met; the the threshold is once purely statutory into the common law realm of no-fault back compensable recovery any noneconomic loss at common for 24.13135). (MCL 500.3135; sought be law — — — No-Fault 2. Insurance Insurance Noneco- Automobiles — — Require- Loss of Consortium Threshold Loss nomic ment. under no- for loss of consortium still exists
A cause of action plaintiffs spouse has automobile insurance act where fault perma- nent serious by Bashara, P.J. — Legisla- — Ambiguities — 3. Statutes Judicial Construction Purpose Object — of Statute. tive ambiguous susceptible to two or more A statute which is open judicial interpretations and should be construction light legislative purpose reasonably of the construed sought accomplished. object statute and — — — Lia- Tort 4. Insurance Automobiles No-Fault Insurance bility. provision insurance act which The in the no-fault automobile sufficiently exceptions is tort with several abolishes judicial lacking clarity to necessitate construction so as 24.13135). (MCL500.2135; MSA — — — 5. Lia- Tort Automobiles No-Fault Insurance Insurance — bility — Loss of Consortium. Derivative Actions Legislature, enacting provision in It the intent of the which abolishes the no-fault automobile insurance act exceptions, of common- with several to abolish contemplated by an derivative tort action such as law of consortium. for loss Statutory Specific — — 6. Statute Construction Statute. that, general Legislature provides speciñc It is the rule where the statute, express thing implies direction in a mention of one things. exclusion of other similar — Remedy — — 7. Constitutional Law Torts Abolition Due Process. Legislature provide adequate The remedy need not substitute abolishing tort; before a common-law cause of action in constitutionality abolition of a common-law remedy test, process i.e., is measured the traditional due legislation relationship whether the bears a reasonable to a (US permissible legislative objective Const, XIV; Am Const 1963, 1, 7). §17; art Const art — — — Insurance Automobiles No-Fault Insurance Tort Lia- bility Statutory — — Construction Statutes. provision which, in the no-fault automobile insurance act exceptions, several abolishes tort strictly light legislative intent; limiting construed in recovery injured persons requisite who meet the threshold speciñed exceptions and to other certain reasonable (MCL assigned provision that can be this *3 24.13135). 500.3135;MSA Forsythe, Campbell, Vandenburg, Clevenger & Bishop, Shelton), P.C. E. (by Donald plaintiffs. for
Douvan Harrington & Barnett), (by Gordon J. for defendant. a, P.J.,
Before: Bashar and V. J. Brennan and Maher, R. M. JJ. Maher,
R. M. J. Plaintiffs bring appeal this from an order of the trial court dismissing plaintiff William Warner’s claim for loss of consortium resulting from injuries suffered Linda Warner in an automobile accident. Linda Warner was injured when the car in riding which she was struck by an automobile driven defendant. Ms. Warner, joined son, by her husband and brought this action to recover noneconomic losses suffered impair- alleging accident, serious of the a result
as body permanent function and serious ment of disfigurement 24.13135(1). 500.3135(1);
under MCL appeal us on is The sole issue before holding that loss the trial court erred whether not under consortium does survive of act. insurance automobile applicable 500.3135; MSA is MCL statute part: provides 24.13135, which "(1) for person A remains by his caused maintenance noneconomic loss use a motor vehicle if the has of death, body impairment of function or serious suffered disñgurement. permanent serious "(2) Notwithstanding any provision law, other of arising ownership, maintenance or respect this of a motor vehicle use within state (4) (3) required by security subsections which the in effect abolished except to: 3101was as section is "(b) provided Damages loss as for noneconomic added.) (Emphasis (1).” limited in subsection argues all tort § 3135 abolishes
Defendant
that
except
specifically
in the
that
described
opinion
agree. However,
we are
statute. We
come within
that claims
statute,
loss
consortium
has suffered
where the claimant’s
think,
of the statute
We
person
liable for noneconomic
clear. A
person
loss
has
*4
requirements. The stat-
meet the threshold
which
ute does not
liability only to those losses
limit
excluding
person,
injured
losses
suffered
the
of the serious
another as a result
App
90 Mich
by Bashara, P.
J.
Clearly any
compensable
noneconomic loss
injury.
law
be recovered under
at common
§
crossed,
parties
step
the threshold
is
Once
land of no-fault back
purely statutory
law,
into the common
with all
its virtues
shortcomings.
agree
We
with the
Gerow,
Luce v
stated
§
(1979):
"MCL MSA retains tradi- requirements tional certain threshold are met.” having in this case decided jury already met the threshold injuries
that Linda Warner’s requirements William Warner entitled press his claim for loss of consortium. Reversed and remanded for trial on the issue of No costs. suffered William Warner. Brennan, J.,
V. J. concurred. (dissenting). Bashara, P.J., I dis- respectfully injuries sent. Plaintiff’s sustained automobile accident. A found the met jury 500.3135(1); of MCL requisites 24.13135(1), $3,000 her in damages. awarded court, dismissing
The trial the consortium claim, longer stated that loss of consortium is no legislation. recoverable under the recent no-fault Plaintiff contends that where an meets threshold of § defendant to tort for the injured person’s loss of consortium claim of the He restrict spouse. claims statute does not to those losses suffered only by party. *5 v 645 by Bashara, P.J. Dissent impression. is one of first statute
This issue 24.13135, 500.3135; states: MCL question, (1) person A to tort liabil- "Sec. ownership, main- noneconomic loss caused his ity for if the or use of a motor vehicle tenance of person has suffered "(2) law, Notwithstanding provision of any other arising maintenance or respect a motor vehicle with to use within this state of (3) (4) security required by subsections and of which the except 3101 was in effect is abolished as to: section "(a) persons Intentionally property. caused harm to or though person persons knows that harm to or Even property substantially certain to be caused his act omission, he not or intentionally does cause suffer such harm acting
if he or refrains from acts for the person, purpose himself, averting injury any including of purpose averting damage tangi- or for the property. ble "(b) provided Damages for noneconomic loss as and (1).
limited subsection
"(c) Damages
expenses,
for allowable
work loss and
survivor’s loss as defined in sections 3107 to 3110 in
3
daily, monthly
year
excess of the
and
limitations
party
contained in those sections. The
ages
liable for dam-
exemption reducing
is entitled to an
his
payable
the amount
that would
of taxes
have been
on account of income the
would have
added.)
injured.” (Emphasis
received
he had not been
A statute
if the
judicially
be
construed
ambiguous
used is
or the statute is sus-
ceptible
meanings. Statutory
to two or more
lan-
guage
given
a reasonable
construction
considering
of the statute
purpose
Director
accomplished. King
v
object sought
Services,
Dep’t
Midland
of Social
73
County
(1977).
253, 258;
I con-
NW2d
App 90 by Bashaea, P.J.
lacking
clarity
sufficiently
3135 is
elude
construction.
judicial
so as to necessitate
scheme
Enactment
a correction
deficiencies
envisioned
to exist
in the tort
that had been found
problems
General, Attorney
Shavers
system.
554, 621-622;
with the courts, leads me to actions in the injury tort Legislature intended abolish believe that of common-law derivative this suit. contemplated by direction provides specific Legislature
Where the
statute,
express
rule that
general
in a
it
implies
the exclusion of
thing
mention
of one
Malik, 70
things. People
v
App
Mich
other similar
Baker v General
(1976),
136; 245
434
NW2d
237, 246;
Unless 3135(2), retained specifically has been those has been abolished. right to recover eliminating his cause of argues Plaintiff it in the no-fault replacing system action without argument This was process. is violative of due in Shav- Court recently Supreme addressed ers, 620-621, supra, at wherein it was stated that:
"[tjhe Legislature
provide
'adequate
sub-
need not
stitute,
abolishing a common-law cause
remedy before
Co, 187
tort;
Axle
of action in
Mackin v Detroit-Timkin
Lahr, 253
8, 13;
(1915);
Death is one of the threshold recovery. Clearly, ments results, where death cannot maintain his or her own Recovery injury action. in tort where the is death always wrongful must be derivative. A death ac- generis compared tion is sui and cannot be to the requirements §3135(1). other Furthermore, an equal protection argument previously ad- supra, Shavers, dressed the Court in at fn 51, and the were found not constitutionally offensive: "The classification which, reflects a policy *7 although victims, it discriminates between does not in judgment our offending constitute an invidious discrimination equal protection clause.” See also O’Donnell v State Farm Mutual Automo- Co, bile Ins 273 NW2d 829 strictly 500.3135; MCL MSA 24.13135 should be light Limiting construed in intent. recovery injured persons who meet requisite specified threshold and to other certain exceptions reasonable assigned that can be this section of the no-fault enactment. logical why party
I see no reason a who has physical injury given prefer- suffered no App 640 by Bashaea, P.J. per- over losses noneconomic recovering ence are insufficient injuries which physical sons requirements. the threshold satisfy question costs, No affirm. I would being involved.