Schaible v. Michigan Mutual Insurance

321 N.W.2d 860, 116 Mich. App. 116
CourtMichigan Court of Appeals
DecidedMay 5, 1982
DocketDocket 51752
StatusPublished
Cited by9 cases

This text of 321 N.W.2d 860 (Schaible v. Michigan Mutual Insurance) 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
Schaible v. Michigan Mutual Insurance, 321 N.W.2d 860, 116 Mich. App. 116 (Mich. Ct. App. 1982).

Opinions

Per Curiam.

Defendant appeals as of right from a judgment for plaintiff in the amount of $76,281.28. Plaintiff, the insured, brought this action against defendant insurer to recover no-fault benefits allegedly owed to plaintiff due to the death of plaintiff’s wife in an automobile accident. Plaintiff sought survivor loss benefits (support loss and replacement services), statutory interest and attorney fees payable under the no-fault statute for overdue benefits. Plaintiff also claimed that he suffered mental anguish as a result of defendant’s wrongful refusal to pay the benefits owed and, therefore, sought damages. Before the trial, the loss of support portion of plaintiff’s claim was settled for $12,426. Therefore, the amount of such benefit was not in issue at trial, but whether the payment was overdue when made was still an issue. Defendant also paid $7,200 in an attempt to settle the replacement services portion of plaintiff’s claim. However, that sum was only one-half of the amount plaintiff sought. Whether plaintiff was entitled to an additional amount for replacement services as well as whether the payment was overdue were issues at trial.

The jury returned a verdict in plaintiff’s favor, finding that plaintiff was entitled to $100 per [119]*119week, or an additional $7,200, for replacement services. Further, the jury awarded plaintiff $50,-000 for mental anguish suffered due to defendant’s failure to pay such benefits when due. In addition, defendant was assessed costs in the amount of $8,903.55, interest in the amount of $1,225.73, and attorney fees in the amount of $8,952. Defendant’s motion for judgment notwithstanding the verdict or for a new trial was denied.

Prior to trial, defendant moved for partial summary judgment on the basis that plaintiff could not seek to recover damages for mental anguish for defendant’s alleged breach of the insurance contract. The trial court found that plaintiff could seek such damages. Defendant’s first claim of error is that the trial court’s ruling was erroneous. We agree.

In Jerome v Michigan Mutual Auto Ins Co, 100 Mich App 685; 300 NW2d 371 (1980), this Court found that damages for mental and emotional distress for breach of an automobile no-fault insurance contract are not recoverable. The Court applied the reasoning set forth in Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), reh den 409 Mich 1116 (1980), where the Court found that damages for mental distress arising from the breach of a disability insurance contract were not recoverable. Jerome has been followed by this Court in Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171; 318 NW2d 679 (1982), and in Liddell v Detroit Automobile Inter-Ins Exchange, 102 Mich App 636, 649; 302 NW2d 260 (1981), where the Court reasoned:

"In our view, a contract for no-fault insurance benefits, like uninsured motorist coverage and disability insurance, is a pecuniary contract requiring the insurance company to pay certain sums upon the occurrence [120]*120of a specified event. It is not the type of personal contract into which one enters to have a certain type of service performed, the omission of which will foresee-ably result in mental distress. Nor can it be said that the damages for mental anguish which plaintiff recovered were within the contemplation of the parties * * * Accordingly, we vacate that portion of the judgment which was awarded on the basis of 'emotional distress and/or mental anguish’.”

We agree with the reasoning set forth in the above cases, and, therefore, vacate the jury’s award of $50,000 for damages for mental anguish.

Defendant also maintains that the trial court erred in denying defendant’s motion for a directed verdict with respect to plaintiff’s claim for replacement services benefits.

The section of the no-fault act under which plaintiff brought this action for survivor’s benefits states as follows:

"Sec. 3108. (1) Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if the deceased had not suffered the injury causing death. Except as provided in section (2) the benefits payable for a survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 for accidents occurring before October 1, 1978, and shall not exceed $1,475.00 for accidents [121]*121occurring on or after October 1, 1978, and is not payable beyond the first three years after the date of the accident.” MCL 500.3108(1); MSA 24.13108(1).

The $1,000 limit includes both "support contributions” and "expenses for replacement services”. Swanson v Citizen’s Ins Co, 99 Mich App 52, 61; 298 NW2d 119 (1980).

After this action was filed but prior to the trial, defendant paid $12,456 in full settlement of plaintiff’s claim for loss of support. Therefore, that claim was not at issue at trial. However, prior to trial, defendant had paid plaintiff only $7,200 (one-half of plaintiff’s claim) for replacement services expenses. At trial, plaintiff sought to recover the remaining $7,200 he claimed for replacement services. The jury awarded plaintiff that amount.

Defendant contends that the award of $7,200 was improper because plaintiff did not prove he had actually incurred any expenses for replacement services.

In Adkins v Auto-Owners Ins Co, 105 Mich App 431, 434; 306 NW2d 312 (1980), this Court held that the amount recoverable for replacement services under the no-fault act is limited to "amounts expended or for which [the survivor] has become liable”. In Adkins, the plaintiff was allowed to recover the amount, represented by cancelled checks, which she had paid after her husband’s death for services he normally performed. Plaintiff was not allowed to recover an additional amount which she claimed represented the value of services previously supplied by her husband which, subsequent to his death, she had to perform or were provided by friends and relatives.

Applying Adkins to the instant case, the award of $7,200 was proper only if plaintiff expended such amount or had become liable to pay the same [122]*122in addition to the $7,200 defendant had previously paid for replacement services prior to trial. Therefore, plaintiffs burden was to prove that he expended, or became liable to pay, $14,400 for replacement services rendered within three years after his wife’s death. After reviewing plaintiffs testimony, we find that plaintiff failed in his burden of proof. The trial court should have found, upon viewing the testimony and all legitimate inferences most favorably to the plaintiff, that the evidence did not establish a prima facie case. Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980).

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Schaible v. Michigan Mutual Insurance
321 N.W.2d 860 (Michigan Court of Appeals, 1982)

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Bluebook (online)
321 N.W.2d 860, 116 Mich. App. 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaible-v-michigan-mutual-insurance-michctapp-1982.