Schwark v. Lilly

283 N.W.2d 684, 91 Mich. App. 189, 1979 Mich. App. LEXIS 2241
CourtMichigan Court of Appeals
DecidedJuly 9, 1979
DocketDocket 78-648
StatusPublished
Cited by13 cases

This text of 283 N.W.2d 684 (Schwark v. Lilly) 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
Schwark v. Lilly, 283 N.W.2d 684, 91 Mich. App. 189, 1979 Mich. App. LEXIS 2241 (Mich. Ct. App. 1979).

Opinions

D. F. Walsh, P.J.

Defendant State Farm Mutual Automobile Insurance Company (hereinafter "defendant”) appeals the entry of judgment for plaintiffs in the amount of $9,445.49, representing the personal protection insurance benefits payable to plaintiffs as survivors of the deceased Naomi Schwark.

This cáse arose out of an August 3, 1975, automobile accident in which a car driven by defendant Max E. Lilly collided with a car driven by Naomi Schwark. Mrs. Schwark was killed and four of her children, passengers in the automobile, were injured in the accident. Plaintiff Guy Schwark, husband of Naomi Schwark and father of the injured children, filed suit individually and as [192]*192administrator of his wife’s estate. He also sued as next friend of the four minor Schwark children, three of whom were injured in the accident. The Schwark’s only adult child, Guy Schwark III, was among those injured in the accident and joined in the suit. The defendants were Mr. Lilly, Duane K. Wiltse d/b/a The Lazy Lounge, VFW Mecwarf Post 5319 (Kenneth Suit, Commander) and State Farm Mutual Automobile Insurance Company. Pursuant to settlements, plaintiffs’ claims against all defendants except State Farm were dismissed. The claims against Mr. Wiltse and the VFW post were based on alleged dramshop liability. MCL 436.22; MSA 18.933.

Trial was held on December 6, 1977. The parties agreed that the sole remaining issues concerned: (1) whether Social Security benefits paid to plaintiffs as a result of Mrs. Schwark’s death could be deducted from survivors’ benefits owed to plaintiffs by defendant under the no-fault act, MCL 500.3109(1); MSA 24.13109(1);1 (2) the amount of survivors’ benefits owed to plaintiffs by defendant under the no-fault act, MCL 500.3108; MSA 24.13108;2 and (3) whether defendant could be reimbursed from the amount paid to plaintiffs by the dramshop defendants, MCL 500.3116; MSA 24.13116.

The trial court found that § 3109 of the no-fault act was unconstitutional and ruled that defendant was not entitled to a setoff for Social Security benefits. The court also found that § 3116 of the act was unconstitutional and that defendant was [193]*193not entitled to reimbursement from plaintiffs’ dramshop recovery.

At trial it was established that Naomi Schwark had been employed outside the home at the time of her death. Her gross weekly earnings were approximately $90. Her weekly take home pay was $69.12. Her husband testified repeatedly that he did not know what portion of those earnings had been used for family purposes and what portion had been used by Mrs. Schwark for her own personal needs. In his final response to questioning along this line, he estimated that half of his wife’s income had been used for family purposes.3

[194]*194The trial judge found that survivors’ benefits due plaintiffs under § 3108 of the no-fault act were equal to Mrs. Schwark’s take-home pay of $69.12 per week. The court interpreted § 3108 as requiring payment of something less than the deceased’s gross income. With regard to Mr. Schwark’s testimony as to the portion of Mrs. Schwark’s income which was used for family purposes, the court found that the evidence was "at best * * * untrustworthy. For example, the amount spent on gasoline and repairs for the decedent’s automobile, although used for taking her to and from her place of employment, could have been used for the benefit of the dependents.”

We address three issues on appeal:

[195]*1951. Did the trial court err in ruling that defendant was not entitled to subtract from personal protection insurance benefits the Social Security benefits paid to plaintiffs as a result of Mrs. Schwark’s death?

2. Did the trial court properly compute the amount of personal protection insurance benefits payable to plaintiffs as dependent survivors of Mrs. Schwark?

3. Did the trial court err in ruling that defendant was not entitled to reimbursement out of plaintiffs’ dramshop recovery from the dismissed defendants?

I. Social Security Setoff

The Supreme Court recently held that the setoff provision of § 3109 of the no-fault act is constitutional and enforceable as it relates to Social Security benefits. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). The trial court’s ruling to the contrary is, therefore, reversed.4

[196]*196II. Computation of Personal Protection Insurance Beneñts for Survivors’ Losses

MCL 500.3108, provides:

"Personal protection insurance benefits are payable for a survivors’ 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 his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and ex[197]*197penses, 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 he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”

In Miller v State Farm Mutual Automobile Ins Co, 88 Mich App 175; 276 NW2d 873 (1979), a panel of this Court held that the Legislature did not intend that survivors’ benefits under § 3108 be reduced by the amount the decedent would have paid in taxes but did intend that such benefits be reduced by the amount used for the decedent’s personal consumption.

We concur in the latter conclusion and so rule in this case. With respect to the former conclusion, however, we disagree with the Miller panel and rule to the contrary.

Under generally recognized principles of statutory construction, when there is no necessity to reconcile conflicting statutes, Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 201 (1971), when there is no absence of adequate operational definitions of relevant terms, Prisoners’ Labor Union v Dep’t of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975), and when the statutory language is plain and unambiguous, Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957), judicial construction or attempted interpretation to vary the plain meaning of a statute is precluded.

The language employed by the Legislature in [198]*198MCL 500.3108, is explicit and unambiguous. It clearly expresses the intent of the Legislature that "benefits are payable for a survivors’ loss” and that the "loss” consists of "tangible things of economic value” which the dependents of the deceased "would have received” from the deceased for support during their dependency. The dependents of the deceased, however, would not have received any amounts of the decedent’s income which the decedent was required to pay in taxes.

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Schwark v. Lilly
283 N.W.2d 684 (Michigan Court of Appeals, 1979)

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Bluebook (online)
283 N.W.2d 684, 91 Mich. App. 189, 1979 Mich. App. LEXIS 2241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwark-v-lilly-michctapp-1979.