Wiselogle v. Michigan Mutual Insurance

538 N.W.2d 98, 212 Mich. App. 612
CourtMichigan Court of Appeals
DecidedAugust 15, 1995
DocketDocket 164181
StatusPublished
Cited by1 cases

This text of 538 N.W.2d 98 (Wiselogle 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
Wiselogle v. Michigan Mutual Insurance, 538 N.W.2d 98, 212 Mich. App. 612 (Mich. Ct. App. 1995).

Opinions

Fitzgerald, P.J.

Defendant appeals as of right from an amended judgment entered in favor of plaintiffs. The judgment awarded plaintiffs $262,099.82 in interest as of March 11, 1993, on an arbitration award of $350,000; The judgment also provided that interest would continue to accrue.

Plaintiffs were injured when the vehicle in which they were passengers was struck by a vehicle driven by John Stefula. After receiving $72,500 from Stefula’s insurance carrier, they brought, on September 16, 1987, an action in the circuit court against defendant seeking a declaration that they were entitled to underinsured motorist benefits. Following requests for arbitration from both parties, on September 26, 1988, the trial court ordered arbitration. By stipulation of the parties, the court retained jurisdiction to determine the issues of interest, costs, and attorney fees:

It is further ordered that the within case shall be and the same hereby is, closed on the docket of this court for statistical purposes with jurisdiction to be retained.

On July 28, 1989, án arbitration panel awarded plaintiffs $350,000. On August 7, 1989, the court issued a judgment for $350,000 in favor of plaintiffs. Plaintiffs were paid $350,000 on September 7, 1989.

On December 28, 1990, plaintiffs filed a motion for an award of interest, costs, and attorney fees. On October 11, 1991, the court issued an opinion awarding plaintiffs five percent interest commenc[615]*615ing on the date of the arbitration award pursuant to MCL 438.7; MSA 19.4. The trial court, relying on Old Orchard By the Bay Associates v Hamilton Mutual Ins Co, 434 Mich 244; 454 NW2d 73 (1990), reasoned that MCL 600.6013; MSA 27A.6013 did not apply because the judgment was entered as the result of a contractually agreed-upon means of dispute resolution that a court lacks the power to alter.

On December 19, 1991, the court issued a supplemental opinion finding that the then-recent decision in Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488; 475 NW2d 704 (1991), mandated an award of interest pursuant to MCL 600.6013; MSA 27A.6013. After entertaining arguments regarding the proper rate of interest, on February 25, 1993, the court issued an order that provided that plaintiffs were entitled to interest as an element of damages from the date of injury until the complaint was filed at a rate of twelve percent compounded annually and that interest from the date of the complaint would be assessed in accordance with MCL 600.6013; MSA 27A.6013 until fully paid. In sum, plaintiffs were awarded $106,216.60 in interest as an element of damages and awarded interest from the date of the complaint through March 11, 1993.1 Giving defendant credit for the $350,000 it had paid, the amended judgment provided that plaintiffs were entitled to $262,099.82 as of March 11, 1993, and that interest would continue to accrue at a rate of $46 a day until May 19, 1994,2 and would continue to accrue at a rate to be calculated in accordance with MCL 600.6013(5); MSA 27A.6013(5).

Defendant first argues that plaintiffs were not [616]*616entitled to interest as an element of damages.3 We disagree. Although the endorsement to the insurance policy does not contain an interest provision,4 the authority to award interest as an element of damages is derived from the broad language contained in the arbitration clause. The arbitration clause empowered the arbitrators to determine whether the insured is legally entitled to recover damages and the proper amount of damages, which would include the determination whether to include common-law interest as an element of damages in order to fully compensate plaintiffs for the loss of use of their money. See Gordon Sel-Way, supra at 498-499, which states:

Consequently, absent a provision expressly precluding authority to award interest as an element of damages, we find that the arbitrators did not exceed the scope of their authority by including an interest amount in their award. This finding comports with MCL 600.5001(2); MSA 27A.5001(2), which provides:
"A provision in a written contract to settle by arbitration ... a controversy thereafter arising between the parties to the contract . . . shall stand as a submission to arbitration of any controversy arising under said contract not expressly exempt from arbitration by the terms of the contract. [Emphasis added.]”
Finally, we acknowledge, as did the Court of Appeals, the fact that Michigan has long recognized the common-law doctrine of awarding interest as an element of damages. 177 Mich App 128-131. The doctrine recognizes that money has a ”use value” and interest is a legitimate element of [617]*617damages used to compensate the prevailing party for the lost use of its funds. See McCormick, Damages, § 50, pp 205-206. Furthermore, the decision whether to award interest as an element of damages is not dependent lipón a contractual promise to pay interest. . . .
It is our belief that the important purposes underlying arbitration are
"better served by considering, in the absence of an explicit agreement to the contrary, pre-award damage claims, including interest, to have been submitted to arbitration.” [Sansone v Metropolitan Property & Liability Ins Co, 30 Mass App 660, 663; 572 NE2d 588 (1991).]

Thus, in light of the undisputed fact that the parties stipulated the retention of jurisdiction by the trial court to decide the issue of interest as an element of damages, and the fact that Michigan law recognizes the concept of interest as an element of damages, we conclude that there is not substantial or material error evident in the trial court’s decision to award interest as an element of damages.

Next, we must determine what interest rate applies when interest is awarded as an element of damages. Defendant maintains that the trial court incorrectly borrowed the twelve percent rate provided in the judgment interest statute, MCL 600.6013; MSA 27A.6013, and suggests that the five percent rate applied in Vannoy v City of Warren, 26 Mich App 283; 182 NW2d 65 (1970), is applicable. However, as noted by plaintiffs, the five percent rate utilized in Vannoy was based upon the then-current judgment interest statute, and, therefore, the trial court properly borrowed the interest rate set forth in the statute at the time the plaintiffs were injured. See also Gordon SelWay, supra.

[618]*618We find, however, that the trial court erred in compounding interest. In Norman v Norman, 201 Mich App 182, 187; 506 NW2d 254 (1993), this Court stated:

In light of the general rule favoring simple interest over compound interest, and in light of the case law, we reach the conclusion that there is a rule to apply regarding simple versus compound interest. Namely, in the absence of a statute to the contrary, an explicit agreement of the parties, or some special circumstance dictating otherwise, the rule in this state is that interest shall be calculated on the basis of simple interest rather than compound interest.

Neither Vannoy nor Gordon Sel-Way,

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Related

Wiselogle v. Michigan Mutual Insurance
538 N.W.2d 98 (Michigan Court of Appeals, 1995)

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538 N.W.2d 98, 212 Mich. App. 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiselogle-v-michigan-mutual-insurance-michctapp-1995.