Cole for and on Behalf of Robison v. Detroit Auto. Inter-Insurance Exchange

• Decision Date: 09 November 1984
• Docket Number: Docket No. 68210,INTER-INSURANCE
• Citation: 137 Mich.App. 603,357 N.W.2d 898
• Parties: Ruth A. COLE, Guardian for and on Behalf of Harold Lee ROBISON, Roxanne Renee Robison, Roscoe W. Robison, Jr., and Kimberly Marie Robison, Minors, Plaintiff-Appellee, v. DETROIT AUTOMOBILEEXCHANGE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 898

357 N.W.2d 898

137 Mich.App. 603

Ruth A. COLE, Guardian for and on Behalf of Harold Lee ROBISON, Roxanne Renee Robison, Roscoe W. Robison Jr., and Kimberly Marie Robison, Minors Plaintiff-Appellee, v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, Defendant-Appellant.

Docket No. 68210.

Court of Appeals of Michigan.

Submitted Jan. 11, 1984.

Decided Sept. 18, 1984.

Released for Publication Nov. 9, 1984.

Farhat, Story, Panek, Porco & Tyler, P.C. by Charles E. Henderson, Lansing, for plaintiff-appellee.

Willingham, Cote, Hanslovsky, Griffith & Foresman, P.C. by Frederick M. Baker, Jr., East Lansing, for defendant-appellant.

Before ALLEN, P.J., and HOOD and WHITE, ^* JJ.

PER CURIAM.

On February 5, 1981, plaintiff instituted suit on behalf of the four minor children of Nancy Robison, who was killed August 30, 1980, in an automobile accident. At the time of the accident, defendant was Nancy Robison's no-fault insurer.

The parties filed cross-motions for partial summary judgment pursuant to GCR 1963, 117. Defendant asserted that Robison's dependents were not entitled to survivors' loss personal protection benefits under M.C.L. § 500.3108; M.S.A. § 24.13108, because Robison had voluntarily terminated her employment approximately six months before the accident, had made no effort to reclaim her job nor seek other employment during her lifetime, and there was no reasonable proof as to the fact and the amount of loss sustained. Plaintiff contended that since Robison was unemployed at the time of her death only because she terminated her employment to stay home with her children after the death of her husband in a 1979 automobile accident, survivor's loss benefits should be calculated based upon the wages she was earning when last employed full time prior to her death, after offsetting the increase in social security payments to her children resulting from her death. The trial court ruled that whether Robison intended to return to work was a question of fact and denied both motions.

After trial, the jury returned a verdict for plaintiff on a five to one vote. The jury found that (1) Nancy Robison would have returned to work; (2) she would have returned to work on September 29, 1980; and (3) survivor's loss benefits for the period September 29, 1980, through September 15, 1982, were due in the amount of $24,346.

Upon plaintiff's renewed motion for a directed verdict which the trial court had taken under advisement, a hearing was held November 16, 1982. The trial court found that had Nancy Robison survived the accident she would have been entitled to wage loss benefits under M.C.L. § 500.3107a; M.S.A. § 24.13107(1), as a temporarily unemployed person for the period of August 30, 1980, through September 29, 1980 (between the date of the accident and the date on which the jury found she would have returned to work). The court held that these benefits were lost as a result of her death and were tangible things of economic value available to Robison's dependents under § 3108. Accordingly, the trial court granted the motion and awarded plaintiff an additional $439.20 based on her previous full time wages. Defendant appeals from this judgment as of right.

Initially, defendant contends that the $439.20 wage loss portion of the trial court's judgment is erroneous because, in effect, it amends the statute by eliminating the survival requirement of § 3107(b) for work loss benefits and by reading § 3107a into § 3108, so as to permit recovery of work loss benefits by a decedent's survivors. As a result, defendant argues, the trial court held that a deceased person is temporarily unemployed and benefits are payable to her survivors for work loss benefits under the guise of tangible things of economic value until the time when, but for her death, she would have returned to work and discontinued her voluntary unemployment.

The pertinent provisions of the no-fault act are §§ 3107(b), 3107a, and 3108 which provide:

"Personal protection insurance benefits are payable for the following:

* * *

* * *

"(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 had not been injured * * *. Work loss does not include any loss after the date on which the injured person dies * * *." M.C.L. § 500.3107; M.S.A. § 24.13107.

"Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident." M.C.L. § 500.3107a; M.S.A. § 24.13107(1).

"(1) Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor's loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased's death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death * * *." M.C.L. § 500.3108; M.S.A. § 24.13108.

Under generally recognized principles of statutory construction, where the statutory language is plain and unambiguous, judicial construction or attempted interpretation to vary the plain meaning of the statute is precluded. Jones v. Grand Ledge Public Schools, 349 Mich. 1, 9-10, 84 N.W.2d 327 (1957).

Work loss benefits do not include any loss after the date on which the injured person dies. M.C.L. § 500.3107(b); M.S.A. § 24.13107(b). Nancy Robison died on August 30, 1980. A plain reading of § 3108 reveals that the survivors may recover only what they "would have received for support * * * from the deceased if the deceased had not suffered the accidental bodily injury causing death". (Emphasis added.) Since, as the jury found, Robison would not have worked for the period for which the trial judge awarded work loss benefits, she would have earned no wages during that period that would constitute tangible things of economic value within the meaning of § 3108.

In Davey v. Detroit Automobile Inter-Ins Exchange, 414 Mich. 1, 12, 322 N.W.2d 541 (1982), the Supreme Court noted that survivor's loss benefits, by definition, are broader than work loss benefits, and concluded that reliance on the language of § 3107(b) in the construction of § 3108 is inappropriate. The trial court's holding, based at least in part on the type of analysis disapproved in Davey, that plaintiff was entitled to recover benefits for the period between Robison's death and the date on which the jury found Robison would have returned to work was incorrect. That portion of the trial court's judgment must be reversed and plaintiff's judgment reduced by $439.20.

Defendant next claims there was insufficient evidence to sustain the jury's finding that Nancy Robison would have returned to work on September 29, 1980, had she not died. Defendant finds support in Oikarinen v. Farm Bureau Mutual Ins. Co. of Michigan, 101 Mich.App. 436 439, 300 N.W.2d 589 (1980), where this Court stated:

"While the intent of plaintiff to return to gainful employment may be an important element, the mere assertion, after the fact, that he had such intent, which is not supported by any of his actions during the four-year period, does not, in our opinion, raise a genuine issue as to a material fact."

Defendant argues that the instant case is similar to Oikarinen in that plaintiff presented only hearsay and opinion testimony of decedent's intention to return to work. The hearsay and opinion testimony presented by plaintiff at trial was admissible under MRE 701, 704, and 803(3). That the testimony might have been presented by "interested and partisan witnesses" affects the weight, not the admissibility of such evidence. We also note that defense counsel effectively cross-examined these witnesses as to their bias.

The duty of weighing the evidence and determining the credibility of witnesses is that of the jury. It is not the province of this Court. Whitson v. Whiteley Poultry Co., 11 Mich.App. 598, 601, 162 N.W.2d 102 (1968). The jury's finding that Nancy Robison would have returned to work September 29, 1980, is supported by the testimony of four witnesses that she had expressed an intention to return to work after her children were back in school.

Defendant also contends that the trial court repeatedly interrupted and interfered with the examination of witnesses and that this tended to lead, repeat and emphasize testimony favorable to plaintiff. A trial court has broad discretion to question witnesses, but it must not allow its views on disputed issues of fact to become apparent to the jury. MRE 614(b); Murchie v. Standard Oil Co., 355 Mich. 550, 559, 94 N.W.2d 799 (1959); People v. Pawelczak, 125 Mich.App. 231, 236, 336 N.W.2d 453 (1983); People v. Redfern, 71 Mich.App. 452, 456, 248 N.W.2d 582 (1976). When a party alleges prejudice or bias of the trial court judge, that prejudice or bias must be demonstrated. Elsasser v. American Motors Corp., 81 Mich.App. 379, 388, 265 N.W.2d 339 (1978). Defendant does not show, nor has a review of the record revealed, actual bias or prejudice. Moreover, the trial court, in both the opening of the case and its final instructions, instructed the jury that it (the court) had no opinion as to the merits of the case. Any alleged error was cured by the above instructions. Keefer v. C.R. Bard, Inc., 110 Mich.App. 563, 578, 313 N.W.2d 151 (1981).

Defendant next claims that the trial court erred in granting plaintiff's motion in limine to exclude evidence that Robison was receiving workers' compensation benefits as a result of her husband's death. Defendant argues this evidence should have been admitted for the limited purpose of showing Robison's lack of incentive to return to work. Where evidence concerning...