Johnson v. Recca

• Citation: 807 N.W.2d 363,292 Mich.App. 238
• Decision Date: 05 April 2011
• Docket Number: Docket No. 294363.
• Parties: JOHNSON v. RECCA.
• Court: Court of Appeal of Michigan (US)

292 Mich.App. 238

807 N.W.2d 363

JOHNSON

v.RECCA.

Docket No. 294363.

Court of Appeals of Michigan.

Submitted March 8, 2011, at Lansing.Decided April 5, 2011, at 9:15 a.m.

Skupin & Lucas, P.C., Detroit (by Mark E. Boegehold), for plaintiff.

Garan Lucow Miller, P.C., Detroit (by Sarah E. Nadeau), for defendant.

Before: SHAPIRO, P.J., and HOEKSTRA and TALBOT, JJ.

HOEKSTRA, J.

In this action for third-party benefits under the no-fault act, MCL 500.3101 et seq. , plaintiff appeals as of right the trial court's order granting summary disposition to defendant under MCR 2.116(C)(10). We reverse and remand the case to the trial court for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

In July 2004, plaintiff, a pedestrian at the time, was hit by a vehicle driven by defendant. Plaintiff was knocked backwards. She fell on her back and hit her head on the cement. At the time of the accident, plaintiff lived with Harrietta Johnson, her ex-mother-in-law. Neither woman owned a vehicle. Defendant had a no-fault insurance policy with Allstate Property and Casualty Insurance Company.

Plaintiff sued Allstate and defendant. In the first-party claim against Allstate, plaintiff alleged that Allstate had failed to pay personal protection insurance benefits, including expenses for attendant care and replacement services. In the third-party claim against defendant, plaintiff alleged that the accident caused her to sustain a serious impairment of body function. She asserted that she suffered injuries to her lumbar, thoracic, and cervical spine, including a herniated disk ¹ at L5–S1 (between the fifth lumbar and the first sacral vertebrae). She also asserted that she suffered a traumatic brain injury, which aggravated a preexisting seizure disorder. Plaintiff further claimed that defendant was required to pay her expenses for replacement services that Harrietta rendered more than three years after the date of the accident. The claims against Allstate and defendant were severed. The case against defendant was stayed, while the case against Allstate proceeded.

In the action for first-party benefits, Allstate moved for summary disposition on plaintiff's claim that she was entitled to benefits for attendant care and replacement services. The trial court granted the motion, concluding that plaintiff had failed to show that the care and services provided by Harrietta after the accident were either reasonable or necessary or that she incurred any expenses for the care and services. However, this Court reversed. Johnson v. Allstate Prop. & Cas. Ins. Co., unpublished opinion per curiam of the Court of Appeals, issued November 9, 2010 (Docket No. 292401), 2010 WL 4483699. It held that genuine issues of material fact existed regarding how often Harrietta provided care and services to plaintiff, whether the care and services were causally connected to the injuries plaintiff suffered in the accident, whether the care and services were reasonably necessary, and whether plaintiff incurred any expenses for the care and services Harrietta rendered. Id. at 4–5.

Before this Court reversed the trial court's order in the first-party action, defendant moved in this case for summary disposition under MCR 2.116(C)(10) on plaintiff's claim for economic and noneconomic damages. The trial court granted the motion. First, the trial court held that expenses for replacement services were not allowable expenses because the phrase “allowable expenses” is defined in MCL 500.3107(1)(a) and expenses for replacement services are addressed in a separate subsection of the statute. Thus, it concluded that plaintiff was not entitled to excess benefits for “allowable expenses.” In addition, the trial court held that, in light of its order granting summary disposition to Allstate, plaintiff was not entitled to excess benefits from defendant. It explained that because it previously held that plaintiff had failed to provide reasonable proof that any expenses for services rendered by Harrietta were reasonable and necessary, plaintiff was prevented from relitigating the issue under the doctrine of collateral estoppel.

Second, the trial court held that plaintiff was not entitled to noneconomic damages because she had not suffered a serious impairment of body function. It concluded that there was not a valid dispute about the extent of plaintiff's injuries because the medical records showed no traumatic brain injury or lasting spinal damage. The trial court also concluded that plaintiff had not suffered an impairment of a body function. It explained that the medical records established that plaintiff suffered from a seizure disorder and degenerative back problems before the accident and that no changes were observed in medical examinations after the accident. It further concluded that even if plaintiff could show an impairment of body function, she failed to show that the impairment affected her ability to lead her normal life. The court reasoned that plaintiff was subject to significant limitations before the accident and that the quality of her life after the accident had not drastically changed.

II. EXPENSES FOR REPLACEMENT SERVICES

On appeal, plaintiff argues that the trial court erred by holding that expenses for replacement services rendered more than three years after the date of the motor vehicle accident are not compensable damages in third-party actions.

A. STANDARD OF REVIEW

We review de novo a trial court's decision on a motion for summary disposition. Moser v. Detroit, 284 Mich.App. 536, 538, 772 N.W.2d 823 (2009). Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of law.” We also review de novo issues of statutory interpretation. Ward v. Mich. State Univ. (On Remand), 287 Mich.App. 76, 79, 782 N.W.2d 514 (2010).

B. APPLICABLE NO–FAULT STATUTES

With the enactment of the no-fault act, “the Legislature abolished tort liability generally in motor vehicle accident cases and replaced it with a regime that established that a person injured in such an accident is entitled to certain economic compensation from his own insurance company regardless of fault.” Kreiner v. Fischer, 471 Mich. 109, 114, 683 N.W.2d 611 (2004), overruled by McCormick v. Carrier, 487 Mich. 180, 795 N.W.2d 517 (2010).² The benefits that an injured person is entitled to receive from his or her own insurance company are listed in MCL 500.3107 (§ 3107). Subsection (1) of that statute provides:

Except as provided in subsection (2), personal protection insurance benefits are payable for the following:

(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except if the injured person requires special or intensive care, or for funeral and burial expenses in the amount set forth in the policy which shall not be less than $1,750.00 or more than $5,000.00.

(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 or she had not been injured....

(c) Expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he or she had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or herself or of his or her dependent. [MCL 500.3107(1).]

In addition, a no-fault insurer must pay survivor's loss benefits to the dependent survivors of a deceased insured. See MCL 500.3108(1). Survivor's loss benefits, which are payable for no more than three years after the date of the accident, may not exceed $20 a day for a dependent and may not exceed a certain sum in a 30–day period. MCL 500.3108(1) and (2).

The Legislature, however, did not abolish all tort liability in motor vehicle accident cases. See MCL 500.3135(3); Kreiner, 471 Mich. at 115, 683 N.W.2d 611. An injured person may recover certain limited economic damages from a negligent operator or owner of a motor vehicle. See MCL 500.3135(3)(c); Kreiner, 471 Mich. at 114 n. 2, 683 N.W.2d 611. MCL 500.3135(3) states:

Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by [MCL 500.3101] was in effect is abolished except as to:

* * *

(c) Damages for allowable expenses, work loss, and survivor's loss as defined in [MCL 500.3107 to MCL 500.3110] in excess of the daily, monthly, and 3–year limitations contained in those sections.³

C. ANALYSIS

The issue in the present case is whether the excess “damages for allowable expenses” that an injured person may recover in a third-party action pursuant to MCL 500.3135(3)(c) include expenses for services commonly known as replacement services that are rendered more than three years after the date of the accident. Resolution of this issue requires interpretation of § 3107(1).

The goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Tevis v. Amex Assurance Co., 283 Mich.App. 76, 81, 770 N.W.2d 16 (2009). The first criterion in determining legislative intent is the language of the statute. Id. If the language is unambiguous, the Legislature is presumed to have intended the meaning clearly expressed, and a court must enforce the statute as written. Ameritech Publishing, Inc. v. Dep't of Treasury, 281 Mich.App. 132, 136, 761 N.W.2d 470 (2008). “Identical terms in different provisions of the same act should be construed identically....”...