Lazarus v. City of Detroit

463 N.W.2d 198, 186 Mich. App. 1
CourtMichigan Court of Appeals
DecidedOctober 22, 1990
DocketDocket No. 113194
StatusPublished
Cited by2 cases

This text of 463 N.W.2d 198 (Lazarus v. City of Detroit) 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
Lazarus v. City of Detroit, 463 N.W.2d 198, 186 Mich. App. 1 (Mich. Ct. App. 1990).

Opinions

Michael J. Kelly, J.

Defendant City of Detroit appeals from a circuit court order granting summary disposition in favor of plaintiff Gary Lazarus. Plaintiff sued defendant to obtain benefits under defendant’s retirement plan and for compensation for unused sick leave days. Plaintiff moved for summary disposition under MCR 2.116(0(10), which the court granted, finding that plaintiff was entitled to the relief requested. We affirm.

Gary Lazarus had been employed by the city’s water and sewerage department for twenty-eight years at the time he applied for a service retirement in August of 1986. The board of trustees of the city’s retirement system in September of 1986 approved Lazarus’ application for a “service retire[3]*3ment” effective in October of 1986. Correspondence from the board of trustees to Lazarus and the water and sewerage department referred only to a service retirement, and never mentioned that he would not receive the full benefits of a service retirement. A summary of the board meeting approving Lazarus’ retirement listed his name under a list of service retirements, but with an asterisk denoting a vested pension.

As a service retiree, Lazarus would be entitled to payment for fifty percent of his accumulated, unused sick leave, which came to $18,298.80, plus hospitalization and medical insurance benefits. When he did not receive payment for his unused sick leave, plaintiff sued defendant for breach of contract to recover this amount. Plaintiff later amended his complaint to request all insurance benefits due him as a service retiree.

Plaintiff moved for summary disposition under MCR 2.116(0(10). In support of his motion, plaintiff presented documents from the board of trustees of the retirement system indicating approval of his service retirement. Plaintiff also claimed that he was entitled to compensation for unused sick leave pursuant to a provision in his collective bargaining agreement. In response to plaintiff’s motion, defendant argued that plaintiff was not a service retiree entitled to sick leave payout and health insurance benefits, but instead that he had received a "vested pension” under the city’s charter. Defendant did not address whether plaintiff was entitled to sick leave payout under his collective bargaining agreement. The court granted plaintiff’s motion, finding that no genuine issue of material fact existed and that plaintiff was a service retiree under the city’s retirement system and entitled to all insurance and other benefits of a service retiree. The court ordered judgment for [4]*4plaintiff in the amount of $18,298.80, plus interest. Defendant now appeals the circuit court’s order as of right.

On appeal, the city argues that Mr. Lazarus was not a "service retirant” under the city charter, and that the circuit court erred in so holding. We find no error.

Summary disposition under MCR 2.116(0(10) tests the factual support for a claim and is appropriate only if the court is satisfied that it is impossible for the nonmoving party’s claim to be supported at trial because of a factual deficiency which cannot be overcome. Boyle v Odette, 168 Mich App 737, 742-743; 425 NW2d 472 (1988).

Here the dispute was not of a factual nature, but instead centered on the proper interpretation of the city charter. The general rules of statutory construction are applicable to the interpretation of the city charter. Brady v Detroit, 353 Mich 243, 248; 91 NW2d 257 (1958). The primary goal of interpretation of the charter is to give effect to the intent of the drafters. Browder v International Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). Provisions pertaining to a given subject matter must be construed together and harmonized if possible. Brady, p 248. Where the drafters used certain and unambiguous language, the plain meaning of the written provisions must be followed. Browder, p 611. Undefined terms must be given their common and ordinary meaning. Swift v Kent Co, 171 Mich App 390, 393; 429 NW2d 605 (1988). Pension laws, being remedial in nature, should be liberally construed in favor of the persons intended to be benefitted by them. O’Connell v Dearborn Police & Fire Pension Bd, 334 Mich 208, 214-215; 54 NW2d 301 (1952).

Defendant claims that its charter provides for two separate types of retirement — service and [5]*5vested. Retirement provisions are contained within title IX, chapter 6 of the Detroit Charter. Plaintiff retired pursuant to title IX, chapter 6, article VI, part A, § 1.4. Defendant argues that by retiring under § 1.4, plaintiff received only a "vested” pension, rather than a service retirement. The city claims that service retirements are set forth only under § 1.1 of article VI, part A, and that the provisions of § 1.4 do not provide for a service retirement. Another panel of this Court, in Clexton v Detroit, 179 Mich App 209, 214; 445 NW2d 201 (1989), addressed this identical issue and evidently agreed with the city, stating:

A person who resigns from city employment under the "40 and 8” provision has a deferred vested interest in receiving a retirement allowance "notwithstanding his membership [in the retirement system] has terminated.” Detroit Charter, tit IV, ch 6, art IV, part A, § 1.4.

We cannot agree with Clexton. We find the city’s argument and the Court’s finding in Clexton unsupported by the language of the charter. The charter provisions do not refer to or define a "vested” pension or retirement or distinguish between a service and vested retirement.

Article VI, part A is entitled "Service Retirement.” Four different methods of retirement are listed under this heading, under §§ 1.1, 1.2, 1.3 and 1.4. There is no language contained in any of these sections indicating whether they grant a full service retirement or merely a vested pension, nor is there any additional language distinguishing § 1.1 as the exclusive method for obtaining a service retirement. The provision under which plaintiff Lazarus retired, part A, § 1.4, provides:

Retirement allowance for certain persons leaving city employment after eight years service.
[6]*6Should any member who (1) has attained age forty years, and (2) has eight or more years of credited service, leave the employ of the city prior to the date he would have first become eligible to retire as provided in this part A, for any reason except his discharge, retirement or death, he shall be entitled to a retirement allowance computed according to section 2 of this article, as said section was in force as of the date of his employment with the city last terminated; provided, that he does not withdraw his accumulated contributions from the Annuity Savings Fund prior to the effective date of his retirement allowance.
His retirement allowance shall only begin the first day of the calendar month next following the month in which his application for same is filed with the board of trustees, on or after the date he would have been eligible to retire had he continued in city employment. Unless otherwise provided in this Chapter, such person shall not receive service credit for the period of his absence from city employment nor shall he or his beneficiary be entitled to any other benefit afforded in this Chapter except the benefits afforded in Part A, Section 2 of Part D of this Article VI, notwithstanding his membership has terminated. [Emphasis added.]

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Related

Woods v. State Employees Retirement System
485 N.W.2d 672 (Michigan Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
463 N.W.2d 198, 186 Mich. App. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lazarus-v-city-of-detroit-michctapp-1990.