Corrigan, J.
Plaintiff, asserting the right to three full years of no-fault work-loss benefits, MCL 500.3107(b); MSA 24.13107(b), sued defendant insurer for breach of contract. Shortly before trial, plaintiff moved in limine to bar defendant from proving as a defense her failure to mitigate damages, i.e., to seek other employment. Plaintiff appeals by leave granted the circuit court’s denial of her motion in limine to bar a defense of mitigation of damages. We affirm the circuit court’s ruling.
[732]*732Plaintiff was injured in an automobile accident on January 8, 1987. A registered nurse, she was then employed as head operating room nurse at South Macomb Hospital. Her job involved administrative and nursing duties as well as lifting and moving patients and equipment. In April 1987, a treating physician found her disabled, i.e., unable to perform that job or one similar to it. Her position as head nurse was subsequently filled.
Plaintiff has neither worked full-time nor sought employment since the accident. She has, however, worked part-time as an administrator at her fiance’s medical clinic and returned to college. She satisfied all requirements for a b.s. degree in nursing in August 1988.
Defendant no-fault insurer paid plaintiffs work-loss benefits pursuant to MCL 500.3107(b); MSA 24.13107(b) until May 1988, when a medical examination at defendant’s request found plaintiff no longer disabled. Section 3107(b) provides that a no-fault insurer must pay benefits for:
Work loss consisting of loss of income from work an injured person would have performed during the first three years after the date of the accident if he had not been injured.
In a breach of contract action, the availability of a defense is a question of law. Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 509-510; 370 NW2d 619 (1985); Jacobs v DAIIE, 107 Mich App 424, 432; 309 NW2d 627 (1981). A question of law is subject to review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
Plaintiff contends that because she could not return to her former job, her right to work-loss benefits for three years became irrevocable and [733]*733she had no duty to seek other employment. We disagree. When a work-loss plaintiff has earned income from another job, no-fault benefits are correspondingly reduced. Snellenberger v Celina Mut Ins Co, 167 Mich App 83, 85; 421 NW2d 579 (1988). Further, a plaintiff cannot obtain work-loss benefits for a period in which he would be disabled from working, regardless of the accident. MacDonald v State Farm Ins Co, 419 Mich 146, 152; 350 NW2d 233 (1984). In addition, a claimant eligible for workers’ compensation benefits must make reasonable efforts to obtain them if he also seeks no-fault payments. Perez v State Farm Mut Auto Ins Co, 418 Mich 634, 645-646; 344 NW2d 773 (1984). Our cases do not reveal an automatic right to work-loss benefits, without any regard for surrounding circumstances.
Marquis v Hartford Accident & Indemnity (On Remand), 195 Mich App 286; 489 NW2d 207 (1992), is relevant to the resolution of the mitigation of damages question. The plaintiff could not return to her preinjury job because it had been filled. The defendant initially paid her work-loss benefits based on her original wage level. The plaintiff then took a lower-paying job, which she quit after six weeks. She sued for work-loss benefits, arguing that the insurer was liable for eighty-five percent of the difference between her pre- and postinjury wages. Significantly, this Court held the insurer liable for only the wage differential after the plaintiff quit the second job:
The question here is not whether plaintiff should have the same work-loss benefits after she voluntarily quit her new job as she received before she began it. She should not [Emphasis supplied. Id. at 289.]
Our decision in this case, to continue benefits based on the pay differential does not reward [734]*734plaintiff for quitting; it also does not reward defendant for the happenstance that plaintiffs new job did not work out. [Emphasis supplied. Id. at 290.]
Although the Marquis Court did not explicitly discuss mitigation of damages,1 the panel obviously recognized the plaintiffs responsibility for minimizing her losses. The Court refrained from "rewarding] plaintiff for quitting.” It did not hold that her no-fault insurer was required to resume paying her what she earned before she took the second job.
Kirksey v Manitoba Public Ins Corp, 191 Mich App 12; 477 NW2d 442 (1991), is also relevant. The defendant calculated the plaintiffs work-loss benefits based on his wages from one employer, but the plaintiff presented evidence that he would have been hired by another employer at a higher pay rate. This Court held that the question properly went to the jury:
If the injured person is able to show convincingly that he would have changed jobs and earned a higher income, then he should be entitled to increased work-loss benefits. [Id. at 16.]
If a plaintiff can show entitlement to greater work-loss benefits because he would have increased his earnings by his own initiative, a defendant should be allowed to prove that plaintiff could have increased her income had she tried.
In Coates v Michigan Mut Ins Co, 105 Mich App 290; 306 NW2d 484 (1981), the plaintiff was injured and his truck was damaged in the same accident. After he recovered, he declined to return [735]*735to work until the truck had been repaired to his satisfaction. This Court refused him work-loss benefits for that period. The work lost "resulted from [the plaintiff’s] decision, however valid, to replace his truck because he felt it was not safely operable.” Id. at 298 (emphasis supplied). Again, the Court did not require payment of benefits for time when a claimant could have worked but did not.
Plaintiff relies primarily on Lenart v DAIIE, 156 Mich App 669; 401 NW2d 900 (1986), and Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978). These cases are not dispositive. In Lenart, the plaintiff’s employer did not permit him to resume his preinjury position because he was still taking medication. In a suit for work-loss benefits, the plaintiff was granted summary disposition. This Court affirmed, applying a "but for” analysis of causation — but for the injury, the plaintiff would not have required medication and but for the medication, he would have been able to return to his former job. 156 Mich App 677-678. Lenart, however, did not squarely consider the duty to mitigate damages,2 and the opinion does riot suggest that the plaintiff could have found alternative employment.
Like the plaintiff in Lenart, the plaintiff in Nawrocki could not return to his original job. His position had been filled and he could not find other work. However, the plaintiff had attempted to find other work. 83 Mich App 137. Although not outcome determinative, the plaintiff’s attempt to find work was a factor that the Nawrocki Court weighed. The conclusion that plaintiff emphasizes, that the statute "requires no more than that the
Free access — add to your briefcase to read the full text and ask questions with AI
Corrigan, J.
Plaintiff, asserting the right to three full years of no-fault work-loss benefits, MCL 500.3107(b); MSA 24.13107(b), sued defendant insurer for breach of contract. Shortly before trial, plaintiff moved in limine to bar defendant from proving as a defense her failure to mitigate damages, i.e., to seek other employment. Plaintiff appeals by leave granted the circuit court’s denial of her motion in limine to bar a defense of mitigation of damages. We affirm the circuit court’s ruling.
[732]*732Plaintiff was injured in an automobile accident on January 8, 1987. A registered nurse, she was then employed as head operating room nurse at South Macomb Hospital. Her job involved administrative and nursing duties as well as lifting and moving patients and equipment. In April 1987, a treating physician found her disabled, i.e., unable to perform that job or one similar to it. Her position as head nurse was subsequently filled.
Plaintiff has neither worked full-time nor sought employment since the accident. She has, however, worked part-time as an administrator at her fiance’s medical clinic and returned to college. She satisfied all requirements for a b.s. degree in nursing in August 1988.
Defendant no-fault insurer paid plaintiffs work-loss benefits pursuant to MCL 500.3107(b); MSA 24.13107(b) until May 1988, when a medical examination at defendant’s request found plaintiff no longer disabled. Section 3107(b) provides that a no-fault insurer must pay benefits for:
Work loss consisting of loss of income from work an injured person would have performed during the first three years after the date of the accident if he had not been injured.
In a breach of contract action, the availability of a defense is a question of law. Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 509-510; 370 NW2d 619 (1985); Jacobs v DAIIE, 107 Mich App 424, 432; 309 NW2d 627 (1981). A question of law is subject to review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
Plaintiff contends that because she could not return to her former job, her right to work-loss benefits for three years became irrevocable and [733]*733she had no duty to seek other employment. We disagree. When a work-loss plaintiff has earned income from another job, no-fault benefits are correspondingly reduced. Snellenberger v Celina Mut Ins Co, 167 Mich App 83, 85; 421 NW2d 579 (1988). Further, a plaintiff cannot obtain work-loss benefits for a period in which he would be disabled from working, regardless of the accident. MacDonald v State Farm Ins Co, 419 Mich 146, 152; 350 NW2d 233 (1984). In addition, a claimant eligible for workers’ compensation benefits must make reasonable efforts to obtain them if he also seeks no-fault payments. Perez v State Farm Mut Auto Ins Co, 418 Mich 634, 645-646; 344 NW2d 773 (1984). Our cases do not reveal an automatic right to work-loss benefits, without any regard for surrounding circumstances.
Marquis v Hartford Accident & Indemnity (On Remand), 195 Mich App 286; 489 NW2d 207 (1992), is relevant to the resolution of the mitigation of damages question. The plaintiff could not return to her preinjury job because it had been filled. The defendant initially paid her work-loss benefits based on her original wage level. The plaintiff then took a lower-paying job, which she quit after six weeks. She sued for work-loss benefits, arguing that the insurer was liable for eighty-five percent of the difference between her pre- and postinjury wages. Significantly, this Court held the insurer liable for only the wage differential after the plaintiff quit the second job:
The question here is not whether plaintiff should have the same work-loss benefits after she voluntarily quit her new job as she received before she began it. She should not [Emphasis supplied. Id. at 289.]
Our decision in this case, to continue benefits based on the pay differential does not reward [734]*734plaintiff for quitting; it also does not reward defendant for the happenstance that plaintiffs new job did not work out. [Emphasis supplied. Id. at 290.]
Although the Marquis Court did not explicitly discuss mitigation of damages,1 the panel obviously recognized the plaintiffs responsibility for minimizing her losses. The Court refrained from "rewarding] plaintiff for quitting.” It did not hold that her no-fault insurer was required to resume paying her what she earned before she took the second job.
Kirksey v Manitoba Public Ins Corp, 191 Mich App 12; 477 NW2d 442 (1991), is also relevant. The defendant calculated the plaintiffs work-loss benefits based on his wages from one employer, but the plaintiff presented evidence that he would have been hired by another employer at a higher pay rate. This Court held that the question properly went to the jury:
If the injured person is able to show convincingly that he would have changed jobs and earned a higher income, then he should be entitled to increased work-loss benefits. [Id. at 16.]
If a plaintiff can show entitlement to greater work-loss benefits because he would have increased his earnings by his own initiative, a defendant should be allowed to prove that plaintiff could have increased her income had she tried.
In Coates v Michigan Mut Ins Co, 105 Mich App 290; 306 NW2d 484 (1981), the plaintiff was injured and his truck was damaged in the same accident. After he recovered, he declined to return [735]*735to work until the truck had been repaired to his satisfaction. This Court refused him work-loss benefits for that period. The work lost "resulted from [the plaintiff’s] decision, however valid, to replace his truck because he felt it was not safely operable.” Id. at 298 (emphasis supplied). Again, the Court did not require payment of benefits for time when a claimant could have worked but did not.
Plaintiff relies primarily on Lenart v DAIIE, 156 Mich App 669; 401 NW2d 900 (1986), and Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978). These cases are not dispositive. In Lenart, the plaintiff’s employer did not permit him to resume his preinjury position because he was still taking medication. In a suit for work-loss benefits, the plaintiff was granted summary disposition. This Court affirmed, applying a "but for” analysis of causation — but for the injury, the plaintiff would not have required medication and but for the medication, he would have been able to return to his former job. 156 Mich App 677-678. Lenart, however, did not squarely consider the duty to mitigate damages,2 and the opinion does riot suggest that the plaintiff could have found alternative employment.
Like the plaintiff in Lenart, the plaintiff in Nawrocki could not return to his original job. His position had been filled and he could not find other work. However, the plaintiff had attempted to find other work. 83 Mich App 137. Although not outcome determinative, the plaintiff’s attempt to find work was a factor that the Nawrocki Court weighed. The conclusion that plaintiff emphasizes, that the statute "requires no more than that the [736]*736work be lost as a direct consequence of the injury,” id. at 144, says nothing about an insured’s obligation to mitigate damages.
In both contract and tort actions, an injured party must make every reasonable effort to minimize damages. Williams v American Title Ins Co, 83 Mich App 686, 697; 269 NW2d 481 (1978). See also, e.g., Rasheed v Chrysler Motors Corp, 196 Mich App 196, 204; 493 NW2d 104 (1992) (employee who is wrongfully discharged has an obligation to mitigate damages by accepting employment of a "like nature”); May v William Beaumont Hosp, 180 Mich App 728, 756; 448 NW2d 497 (1989) (in determining loss of lifetime earning capacity, earnings should be offset by wages that "it may reasonably be anticipated the plaintiff will earn”). The general principle of mitigation thus should apply to no-fault work-loss suits unless the Legislature intended to abrogate the common-law doctrine of mitigation.
The Michigan no-fault act is based upon the Uniform Motor Vehicle Accident Reparations Act (umvara), 14 ULA, Civil Procedural & Remedial Laws, pp 35-124. Nawrocki, supra at 143. The Legislature agreed with the policies that underlie the model act’s language. Miller v State Farm Mut Auto Ins Co, 410 Mich 538, 559; 302 NW2d 537 (1981) (expenses payable as survivor’s loss). The umvara’s definition of "work loss” deviates in several respects from that adopted in § 3107(b). The umvara, § 1(a)(5)(h), 14 ULA, p 43, provides:
"Work loss” means loss of income from work the injured person would have performed if he had not been injured, and expenses reasonably incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income he would have earned in available appropriate [737]*737substitute work he was capable of performing but unreasonably failed to undertake.
The umvara’s definition is more generous than § 3107(b) in allowing compensation for expenses "reasonably incurred ... in obtaining services in lieu of those [the injured person] would have performed for income” (compare Kerby v Auto-Owners Ins Co, 187 Mich App 552; 468 NW2d 276 [1991], holding that work-loss benefits do not include payment for substitute services in a profit-making enterprise). The umvara’s definition at the same time is more restrictive because it expressly reduces benefits "by any income from substitute work actually performed ... or by income [the insured] would have earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake.” The latter is described in the drafters’ comments to the umvara, § 1, 14 ULA, p 46, as "the common law doctrine of avoidable consequences.”
We do not share defendant’s view that Michigan courts, by favorably citing the drafters’ commentary, somehow impliedly have engrafted the avoidable consequences language on our statute. Conversely, given the mixed features of the umvara’s definition of work loss, the Legislature’s failure to adopt it in toto does not command the conclusion that the Legislature has abrogated the common-law duty to mitigate. To draw that conclusion would be an unnatural reading. Cf. Spencer v Hartford Accident & Indemnity Co, 179 Mich App 389, 399; 445 NW2d 520 (1989) (failure to enact a comparable umvara provision creates a presumption that the Legislature rejected the proposed language).
The enactment of the no-fault act did not extinguish common-law doctrines predating that legisla[738]*738tion. Adams v Auto Club Ins Ass’n, 154 Mich App 186, 194-195; 397 NW2d 262 (1986) (the common-law rule permitting recoupment of payments not abolished by the no-fault act). See also Struble v DAIIE, 86 Mich App 245, 250; 272 NW2d 617 (1978) (common-law tort rule "should not be considered as abrogated unless there is a clear intent to do so,” citing 73 Am Jur 2d, Statutes, § 181, p 384); Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 508; 309 NW2d 163 (1981) (no-fault act did not abolish common-law actions for loss of consortium). The statute must not be construed to abrogate established common-law principles by implication. Id. at 507-508. Because the no-fault act did not specifically abrogate the common-law principle of mitigation, the defense remains available.
The question is how to interpret the statute’s provision that work-loss benefits are payable "for work the injured person would have performed.” MCL 500.3107(b); MSA 24.13107(b) (emphasis supplied). The teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., provides a similar problem of interpretation. Under that statute, if a. suspended teacher is reinstated after an appeal to the tenure commission, "the teacher shall be entitled to all salary lost as a result of such suspension.” MCL 38.103; MSA 15.2003 (emphasis supplied). In Shiffer v Gibralter School Dist Bd of Ed, 393 Mich 190; 224 NW2d 255 (1974), the Supreme Court held that "all salary lost” refers only to the difference between a teacher’s prior salary and income received from any alternate employment during the appeal, rather than the full salary he would have received. Id. at 199-200. "There is no need to jettison the sound principles of mitigation of loss generally applied by courts and administrative [739]*739tribunals throughout the land.” Id. at 208 (emphasis supplied).
Statutes must be interpreted as a whole. Whenever possible, one section of a statute should be read in harmony with the remainder. Michigan Millers Mut Ins Co v West Detroit Building Co, Inc, 196 Mich App 367, 373; 494 NW2d 1 (1992). Section 3107(a) requires insurers to pay "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(a); MSA 24.13107(a) (emphasis supplied). If one goal of § 3107(a) is rehabilitation of those injured in motor vehicle accidents, then the provision for work-loss coverage in § 3107(b) should be "read in harmony” to encourage rehabilitation as well. To relieve an insured of the duty to mitigate would place the goals of § 3107(a) at odds with those of § 3107(b).
Reasonableness of mitigation is a question of fact. Snell v UACC Midwest, Inc, 194 Mich App 511, 516; 487 NW2d 772 (1992). Section 3107(b) requires defendant to pay plaintiff for work she "would have performed” in the three years after the accident. What work plaintiff "would have” performed is what she would have done in the absence of insurance benefits. Had plaintiff been injured in a noncompensable accident, she would have been motivated to return to productive employment as soon as possible. The jury should decide what work plaintiff could have found and whether she reasonably should have taken it.3
Affirmed._