Rusinek v. Schultz, Snyder & Steele Lumber Co.

• Decision Date: 01 July 1980
• Docket Number: Docket No. 78-3137
• Citation: 98 Mich.App. 380,296 N.W.2d 262
• Parties: Eugene RUSINEK et al., Plaintiff-Appellee, v. SCHULTZ, SNYDER & STEELE LUMBER COMPANY, Defendant-Appellant, and Richard Braybrook, Defendant. 98 Mich.App. 380, 296 N.W.2d 262
• Court: Court of Appeal of Michigan — District of US

Page 262

296 N.W.2d 262

Eugene RUSINEK et al., Plaintiff-Appellee, v. SCHULTZ, SNYDER & STEELE LUMBER COMPANY Defendant-Appellant and Richard Braybrook, Defendant.

Docket No. 78-3137.

98 Mich.App. 380, 296 N.W.2d 262

Court of Appeals of Michigan.

July 1, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 382] Douglas M. Philpott, Flint, for defendant-appellant.

Edwin W. Jakeway, Bennett S. Engelman, Grand Blanc, for plaintiff-appellee.

Before CYNAR, P. J., and MacKENZIE and CORKIN, ^* JJ.

MacKENZIE, Judge.

Plaintiffs filed a complaint against defendants for damages arising out of an auto accident which occurred on July 30, 1974. Plaintiff Eugene Rusinek claimed that he sustained a "serious impairment of body function" in the accident within the meaning of the Michigan no-fault act. His injuries consisted of a strained neck and back and a sore elbow. Plaintiff Marie Rusinek brought a claim based upon loss of consortium. Defendant Schultz, Snyder & Steele Lumber Company (hereinafter defendant) made a pretrial motion to dismiss Marie Rusinek's loss of consortium claim arguing that it is not recognized under the Michigan no-fault act. The motion was denied by the trial court.

The sole issue litigated at trial was the question of damages. The jury returned a verdict of $50,000 in favor of Eugene Rusinek and a verdict of $10,000 in favor of Marie Rusinek. Defendant made a motion for a new trial, which was denied. Defendant now appeals as of right, raising three issues.

Defendant first contends that the trial court erred in ruling that Marie Rusinek could be [98 MICHAPP 383] awarded damages for loss of consortium under the no-fault act. We agree.

This issue was previously faced by this Court in Warner v. Brigham, 90 Mich.App. 640, 282 N.W.2d 428 (1979). The majority held that a claim for loss of consortium comes within the no-fault statute where the spouse of the claimant has suffered death, serious impairment of body function, or permanent serious disfigurement. According to M.C.L. § 500.3135(1); M.S.A. § 24.13135(1):

"A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement."

It was the majority's opinion that the statute did not limit liability to losses suffered by the injured person, but that any noneconomic loss compensable at common law, including consortium, is recoverable under § 3135.

Judge Bashara dissented in Warner because, in his opinion, based on the operative language of the statute and its express purpose of limiting tort actions arising from auto accident injuries, the legislature intended to abolish this type of common law derivative tort liability.

He further relied upon the general rule that the express mentioning of something in statute implies the exclusion of other similar things. Since loss of consortium had not been specifically retained in § 3135, the right to recover for such damages had been abolished.

Finally, Judge Bashara stated that he could not see why a party suffering no physical injury should be given preference in recovering noneconomic losses over persons with physical injuries [98 MICHAPP 384] insufficient to satisfy the threshold requirements of § 3135(1).

We agree with the reasoning of Judge Bashara and hold that the spouse of a party injured in an auto accident may not recover for loss of consortium under the no-fault act. The language of § 3135(1) clearly states that the "injured party" must suffer death, serious impairment of body function or permanent serious disfigurement. For purposes of a loss of consortium claim, however, the spouse of the person physically hurt is the "injured party", and is suing for damages to his or her own interest. See Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). Since the spouse is not the party who has suffered death, serious impairment of body function, or permanent serious disfigurement, he or she is not entitled to recover under the statute.

Defendant next contends that the trial judge erred in refusing to give defendant's requested instruction that plaintiff was not entitled to recover noneconomic damages for the period beyond which he suffered a serious impairment of body function.

The testimony of plaintiff Eugene Rusinek and two treating physicians indicated that although he still experiences intermittent pain and has difficulty lifting and bending, he was able to return to work as a machine repairman in January of 1975 and carry on with most normal activities. In closing argument, plaintiffs' counsel admitted that Mr. Rusinek was not suffering from a serious impairment of body function at the time he returned to work; however, he argued that as Mr. Rusinek initially suffered a serious impairment following the accident, he had met the threshold requirement and should be able to collect damages for future pain and suffering.

[98 MICHAPP 385] Generally, a requested instruction which states the applicable law and is supported by the evidence must be given. Richman v. City of Berkley, 84 Mich.App. 258, 264, 269 N.W.2d 555 (1978).

The no-fault statute's elimination of tort liability for noneconomic damages except where death, serious impairment of body function or permanent serious disfigurement result was designed to correct certain deficiencies in the tort system. Two of these evils were the barrage of lawsuits heavily burdening the state's court system and the fact that minor injuries were often over-compensated while serious injuries were under-compensated. See Shavers v. Attorney General, 402 Mich. 554, 621-622, 267 N.W.2d 72 (1978). Therefore, we believe that the requirement that the plaintiff show a serious impairment of body function not only presents a threshold requirement to recover in tort but also a limitation precluding recovery of future damages where plaintiff no longer suffers from a serious impairment of body function.

Due to the trial judge's failure to give the requested instruction, it is unclear whether the jury found that Mr. Rusinek still suffers from a serious impairment. In light of our holding, it is unnecessary to discuss defendant's other allegations of error.

Reversed and remanded.

CYNAR, Judge (concurring in part, dissenting in part).

While disagreeing on whether the right to recover for loss of consortium exists, I am in total agreement with the majority on the handling of the other issues and the decision to reverse and remand.

[98 MICHAPP 386] The loss of consortium claim has long been recognized as an element of damages in Michigan. In Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960), the Michigan Supreme Court held that a wife states a valid cause of action in a suit for loss of consortium, which the Court described as "conjugal fellowship".

Loss of consortium has continued to be recognized in Michigan and its definition has been expanded to include "society, companionship, service, affection, and all other incidents of the marriage relationship". Washington v. Jones, 386 Mich. 466, 472, 192 N.W.2d 234 (1971); Kailimai v. Firestone Tire & Rubber Co., 87 Mich.App. 144, 148, 273 N.W.2d 906 (1978).

Applying the definitions in the above-cited cases, it is clear that a loss of consortium claim is a noneconomic claim: a claim for, in part, fellowship, companionship, and affection rather than loss of wages.

However, the defendant argues that even if a consortium claim is a noneconomic tort claim historically allowed in Michigan, the enactment of the Michigan No-Fault Insurance Act excludes recovery for loss of consortium claims.

The defendant cites M.C.L. § 500.3135; M.S.A. § 24.13135, which reads in part:

"A person remains...