Gobler v. Auto-Owners Ins. Co., AUTO-OWNERS

• Citation: 428 Mich. 51,404 N.W.2d 199
• Decision Date: 20 April 1987
• Docket Number: No. 13,Docket No. 76011,AUTO-OWNERS,13
• Parties: Linda K. GOBLER, Plaintiff-Appellant, v.INSURANCE COMPANY, a Michigan corporation, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 199

404 N.W.2d 199

428 Mich. 51

Linda K. GOBLER, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation Defendant-Appellee.

Docket No. 76011.

Calendar No. 13.

Supreme Court of Michigan.

Argued Oct. 8, 1986.

Decided April 20, 1987.

James G. Halverson, Lansing, for plaintiff-appellant.

John W. Cotner, Lansing, Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James L. Borin, Detroit, for defendant-appellee.

ARCHER, Justice.

This case requires judicial discovery of the intent of the Legislature concerning a provision of the no-fault automobile insurance act. M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq.

We granted leave to appeal to determine the meaning of the expression "contributions of tangible things of economic value ... that dependents of the deceased ... would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death" as used in § 3108 of the act. M.C.L. § 500.3108; M.S.A. § 24.13108. We read the quoted language of § 3108 in the light of the no-fault act as a whole and conclude that the Legislature did not intend that survivors be compensated for lost income only if they can prove that the deceased was employed on the date of the accidental bodily injury causing death. If the deceased was unemployed at the time of the accident, but received an offer of employment subsequent to the date of the accident which the surviving dependents can substantiate, the salary that the deceased would have earned from the employment to which the offer applied should be considered in the calculation of survivors' loss benefits under § 3108.

I

The facts and procedural history in this case are set forth in detail in Gobler v. Auto-Owners Ins Co., 139 Mich.App. 768, 362 N.W.2d 881 (1984). Steven Gobler, plaintiff's decedent, ¹ was killed in an automobile accident on March 16, 1976. Auto-Owners Insurance Company was Mr. Gobler's no-fault automobile insurer. On the day Gobler died, he completed the last requirements for a degree in forestry at Michigan State University. He was enrolled as a full-time student and was unemployed at the time of his demise. Michigan State University awarded Gobler a bachelor of science degree in forestry posthumously.

Plaintiff testified that before Gobler died, he was planning to pursue a career in forestry on the west coast. Plaintiff filed an application for survivors' benefits with Auto-Owners. Auto-Owners paid the ambulance, hospital, and funeral bills for plaintiff's decedent. Plaintiff's claim for survivors' benefits, however, was denied because Gobler was unemployed at the time of the accidental bodily injury that caused his death.

Steven Gobler was last employed by the United States Forestry Service in Hoodsport, Washington. In 1975, he worked for the forestry service as a fire fighter from July to November and earned $4,064.86. During the trial, his job with the service was described as seasonal employment. In January, 1976, he resumed his studies as a full-time student at Michigan State University. From January until the date of his death, he was unemployed.

Some time in 1975, Gobler filed an application with the United States Forestry Service which was entered onto the Civil Service Registry. Before a person qualifies for inclusion on the registry of eligibles, certain educational requirements in the area of forestry must be completed. Gobler qualified for inclusion on the registry on the basis of his education and superior scholastic standing. Gobler's name was selected from the registry of eligibles and placed on three separate certificates of eligibility. These lists were identical, with the exception of the location of the employment vacancy. Gobler's name was the last name on each of the three lists. ² The lists upon which Gobler's name appeared resulted in the preparation of an inquiry of availability which was forwarded to Gobler and the other five persons included on the lists. The inquiry was not forwarded to Gobler until September 14, 1976, some six months after he had died.

Shelagh Reed, ³ staffing specialist responsible for recruiting employees for the United States Forestry Service, testified that she forwarded the inquiry of availability to the six persons on the lists of eligibles in an effort to fill three open positions as soon as possible. All three positions were located in the State of California. The positions which were the subject of the inquiry were all GS-7 positions ⁴ which carried a definite salary and benefit level, and commencement date. ⁵

Ms. Reed explained the purpose of the inquiry of availability as follows. The inquiry was prepared for specific vacancies and was forwarded to all the persons who were listed on the lists of eligibles. This allowed the forestry service to find out who was available and to fill the vacancies as soon as possible. If there were three vacancies to be filled, for example, and the top three persons included on the lists were available, those three persons were generally offered the available positions. If, however, the top three persons were not available, the remaining three on the list would be offered the position if there was no adverse information on their applications. Ms. Reed stated that adverse information included an arrest record and termination from prior employment. Ms. Reed further testified that none of the persons included on the list of eligibles would be offered a position if there was any adverse information on their applications. The forestry service did not interview a person before offering a position. Persons included on the list of eligibles were prequalified for any job which the certificate of eligibility covered. The prequalifications included curriculum, grade point average, and prior employment with the forestry service. The fact that Gobler's name was placed on the lists of eligibles demonstrates that he satisfied the three prequalification criteria.

Ms. Reed indicated that the response to the inquiry of availability which was forwarded to Gobler and the other five persons was as follows. The first and second person declined, the third person failed to reply, the fourth person declined, and the fifth person indicated his availability and was offered a position. Gobler, the sixth person on the list, failed to reply. On the basis of Ms. Reed's testimony, it is clear that three of the persons did not wish to be considered for the three vacancies; one individual expressed his availability to fill one of the vacancies and was accepted and offered a position. Two persons, one of whom was Gobler, failed to reply. Hence, two vacancies remained.

The trial court found that Gobler would have sought and secured full-time employment. The court also concluded that plaintiff had shown by a preponderance of evidence that Gobler's wages would have been contributed to plaintiff's support and initially determined that the award should be based on the annualization of $4,064.86, plus interest, that Gobler had earned from his last full-time employment. Plaintiff was also awarded penalty interest and attorney fees.

Relying on Lewis v. DAIIE, 90 Mich.App. 251, 282 N.W.2d 794 (1979), the trial court reversed its earlier ruling and awarded plaintiff's survivor's benefits on the basis of the amount Steven Gobler would have earned working for the United States Forestry Service. Plaintiff was further awarded attorney fees of one-third of the total sum of the judgment, penalty, and interest which began to accrue upon the commencement of the trial. Auto-Owners was granted partial accelerated judgment on plaintiff's claim for survivors' benefits. Plaintiff's claim was barred by the statute of limitations from March 16, 1976, the day the deceased died, through December 21, 1976, on the basis that plaintiff did not timely file her complaint. The trial court limited plaintiff's claim to twenty-seven months.

The Court of Appeals held that the trial court's finding that Steven Gobler would have been employed by the United States Forestry Service was clearly erroneous, stating:

"The evidence presented at trial showed that on the date of Steven Gobler's death, he was not employed. It was only on September 6, six months after Gobler's death, when an 'Inquiry of Availability' was received by his wife, that the possibility of employment occurred. This was not an offer of employment, and because of Gobler's death, he could not respond to indicate his interest in the potential positions which might be offered. Since the evidence presented at trial did not support an award of survivor's benefits based on the inquiry of availability and Steven Gobler was otherwise unemployed, the trial judge improperly awarded survivor's benefits." 139 Mich.App. 776, 362 N.W.2d 881.

Judge Kelly, concurring in part and dissenting in part, would have affirmed the decision of the trial court.

"I agree that the appropriate inquiry in determining whether survivor's benefits should be awarded under MCL 500.3108; MSA 24.13108 is whether the dependent would have received the support from the decedent if the decedent had not suffered the fatal injury. I cannot, however, agree that the trial court in this case clearly erred in finding that Steven Gobler would have been employed by the U.S. Forestry Service if he had survived the accident. The majority's opinion conveys the impression that the trial court's finding was based solely on plaintiff's receipt of the Inquiry of Availability, which admittedly was not an offer of employment. However, I believe that the trial court considered the Inquiry of Availability in conjunction with the testimony of Shelagh Reed. I am thus not left with a firm and definite belief that a mistake has been committed by the trial court in finding that Steven Gobler would have been employed by the U.S. Forestry Service at the salary and benefit level and as of the commencement date...