Cook v. Detroit Automobile Inter-Insurance Exchange

394 N.W.2d 433, 152 Mich. App. 603, 1986 Mich. App. LEXIS 2740
CourtMichigan Court of Appeals
DecidedMay 9, 1986
DocketDocket No. 85172
StatusPublished

This text of 394 N.W.2d 433 (Cook v. Detroit Automobile Inter-Insurance Exchange) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Detroit Automobile Inter-Insurance Exchange, 394 N.W.2d 433, 152 Mich. App. 603, 1986 Mich. App. LEXIS 2740 (Mich. Ct. App. 1986).

Opinion

Per Curiam.

On December 13, 1983, plaintiff, Katie A. Cook, filed a complaint alleging that defendant, Detroit Automobile Inter-Insurance Exchange, had wrongfully set off payments she received from a federal civil service survivor’s annuity against her no-fault survivor’s loss benefits payable by defendant pursuant to MCL 500.3108; MSA 24.13108. Plaintiff moved for summary judgment under GCR 1963, 117.2(3), now MCR [605]*6052.116(C)(10), asserting that there were no genuine issues of material fact and that she was entitled to judgment as a matter of law. In her summary judgment motion, plaintiff sought to recover the amount allegedly improperly set off by defendant, actual attorney fees as allowed under MCL 500.3148; MSA 24.13148, prejudgment interest as allowed under MCL 600.6013; MSA 27A.6013 and penalty interest as provided in MCL 500.3142; MSA 24.13142. Defendant filed a counter motion for summary judgment agreeing that there were no genuine issues of material fact, but claiming that it was entitled to judgment as a matter of law. Following a hearing addressing both summary judgment motions, the trial judge granted plaintiffs motion for summary judgment and awarded her all the relief she had sought. Defendant appeals as of right.

On appeal, defendant raises three issues, challenging separately the three components of the relief awarded to plaintiff. Due to our resolution of defendant’s first argument, which challenges the award of the setoff amount to plaintiff, we do not need to address defendant’s other two arguments, which challenge the award of attorney fees and penalty interest to plaintiff.

The facts surrounding this case are not in dispute. Plaintiff’s husband was killed in an automobile accident on August 1, 1982. Defendant, plaintiff’s husband’s no-fault personal protection insurer, immediately began paying plaintiff $1,374 per month in no-fault survivor’s loss benefits pursuant to MCL 500.3108; MSA 24.13108. Under the statute, these benefits are required to be paid for a period of not more than three years. Plaintiff also began receiving a $303 per month federal civil service survivor’s annuity, as her husband had been an employee of the United States Postal [606]*606Service. In October, 1983, defendant began setting off the payments received by plaintiff from the federal civil service survivor’s annuity against its no-fault payments to her.

Defendant made the setoff pursuant to MCL 500.3109(1); MSA 24.13109(1), which provides:

Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.

Defendant argued both at trial and on appeal that the federal civil service survivor’s annuity payments received by plaintiff are benefits provided or required to be provided under the laws of the federal government and, thus, were subject to the setoff provisions.

5 USC 8341(d) provides a survivor’s annuity for the spouse of a deceased federal civil service employee as follows:

(d) If an employee of Member dies after completing at least 18 months of civilian service, his widow or widower is entitled to an annuity equal to 55 percent of an annuity computed under section 8339(a)-(f), (i), and (o) of this title as may apply with respect to the employee or Member, except that, in the computation of the annuity under such section, the annuity of the employee or Member shall be at least the smaller of—
(1) 40 percent of his average pay; or
(2) the sum obtained under such section after increasing his service of the type last performed by the period elapsing between the date of death and the date he would have become 60 years of age.
The annuity of the widow or widower commences on the day after the employee or Member [607]*607dies. This annuity and the right thereto terminate on the last day of the month before the widow or widower—
(A) dies; or
(B) remarries before becoming 60 years of age.

Plaintiff receives her federal civil service survivor’s annuity pursuant to this statutory provision.

Thus, under the plain language of MCL 500.3109; MSA 24.13109, it appears that defendant was entitled to make the setoff in this case. However, in Jarosz v DAIIE,1 the Michigan Supreme Court recently interpreted the setoff statute to allow setoff only where the other government benefits duplicate the benefits provided under the no-fault act. The Jarosz Court went on to announce a two-prong test for determining whether the other government benefits duplicate no-fault benefits:

We conclude that the correct test is: state or federal benefits "provided or required to be provided” must be deducted from no-fault benefits under § 3109(1) if they:
1) Serve the same purpose as the no-fault benefits, and
2) Are provided or are required to be provided as a result of the same accident.[2]

Applying the two-prong test to the facts of this case, we first note that the death of plaintiff’s husband in an automobile accident triggered both the federal annuity benefits and the no-fault benefits. On appeal, plaintiff contends that the federal annuity benefits were triggered by her husband’s termination of federal civil service employment, not his fatal automobile accident. This is a distinc[608]*608tion without legal relevance. Plaintiffs husband’s fatal automobile accident caused him to terminate his federal employment and made plaintiff eligible for his federal survivor’s annuity benefits. Thus, we conclude that the second prong of the Jarosz test is clearly met in this case.

The application of the first prong of the Jarosz test is much more difficult in this case. We initially note that the purpose of no-fault survivor’s benefits is to replace wages that would have actually been earned by the decedent and used to provide support to the decedent’s family members. Jarosz, supra. Thus, we must determine whether federal civil service survivor’s annuity benefits also replace wages that would have actually been earned by the decedent and used to provide support to the decedent’s family members or whether they serve some other purpose.

Four recent decisions of the Michigan Supreme Court and this Court provide us with guidance in determining this issue. In O’Donnell v State Farm Mutual Automobile Ins Co,3 which the Jarosz Court used as a basis for constructing the two-prong test, the Court held that survivor’s benefits provided by federal social security served to replace the wages that the decedent actually would have earned and provided to his family and, thus, were properly set off against no-fault survivor’s loss benefits by the defendant insurer. The Court, in a subsequent decision, extended its holding in O’Donnell and found that disability benefits provided by federal social security served to replace wages that the accident victim would have actually earned absent the accident and, thus, were properly set off against no-fault disability benefits.4

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Related

Thompson v. Detroit Automobile Inter-Insurance Exchange
344 N.W.2d 764 (Michigan Supreme Court, 1984)
Perkins v. Riverside Insurance Co. of America
367 N.W.2d 336 (Michigan Court of Appeals, 1985)
Jarosz v. Detroit Automobile Inter-Insurance Exchange
345 N.W.2d 563 (Michigan Supreme Court, 1984)
O'Donnell v. State Farm Mutual Automobile Insurance
273 N.W.2d 829 (Michigan Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
394 N.W.2d 433, 152 Mich. App. 603, 1986 Mich. App. LEXIS 2740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-detroit-automobile-inter-insurance-exchange-michctapp-1986.