Warner v. Brigham ( 1979 )

90 Mich. App. 640 (1979) 282 N.W.2d 428

WARNER
v.
BRIGHAM

Docket No. 78-838.

Michigan Court of Appeals.

Decided June 6, 1979.

Forsythe, Campbell, Vandenburg, Clevenger & Bishop, P.C. (by Donald E. Shelton), for plaintiffs.

Douvan & Harrington (by Gordon J. Barnett), for defendant.

Before: BASHARA, P.J., and V.J. BRENNAN and R.M. MAHER, JJ.

R.M. MAHER, J.

Plaintiffs bring this appeal from an order of the trial court dismissing plaintiff William Warner's claim for loss of consortium resulting from injuries suffered by Linda Warner in an automobile accident. Linda Warner was injured when the car in which she was riding was struck by an automobile driven by defendant. Ms. Warner, joined by her husband and son, brought this action to recover noneconomic losses suffered as a result of the accident, alleging serious impairment of body function and permanent serious disfigurement under MCL 500.3135(1); MSA 24.13135(1). The sole issue before us on appeal is whether the trial court erred in holding that loss of consortium does not survive under the no-fault automobile insurance act.

The applicable statute is MCL 500.3135; MSA 24.13135, which provides in part:

"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.

"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:

* * *

"(b) Damages for noneconomic loss as provided and limited in subsection (1)." (Emphasis added.)

Defendant argues that § 3135 abolishes all tort liability except that specifically described in the statute. We agree. However, we are of the opinion that claims for loss of consortium come within the statute, where the claimant's spouse has suffered death, serious impairment of body function or permanent serious disfigurement.

We think that the language of the statute is clear. A person remains liable for noneconomic loss if the injured person has suffered injuries which meet the threshold requirements. The statute does not limit liability only to those losses suffered by the injured person, excluding losses suffered by another as a result of the serious injury. Clearly any noneconomic loss compensable at common law may be recovered under § 3135. Once the threshold is crossed, the parties step from the purely statutory land of no-fault back into the common law, with all its virtues and shortcomings. We agree with the interpretation of § 3135 stated in Luce v Gerow, 89 Mich. App. 546; 280 NW2d 592 (1979):

"MCL 500.3135(1); MSA 24.13135(1), retains traditional tort liability if certain threshold requirements are met."

The jury in this case having already decided that Linda Warner's injuries met the threshold requirements of § 3135, William Warner is entitled to press his claim for loss of consortium. Reversed and remanded for trial on the issue of damages suffered by William Warner. No costs.

V.J. BRENNAN, J., concurred.

BASHARA, P.J. (dissenting).

I respectfully dissent. Plaintiff's spouse sustained injuries in an automobile accident. A jury found the injuries met the requisites of MCL 500.3135(1); MSA 24.13135(1), and awarded her $3,000 in damages.

The trial court, in dismissing the consortium claim, stated that loss of consortium is no longer recoverable under the recent no-fault legislation.

Plaintiff contends that where an injured person meets the threshold requirements of § 3135, the defendant remains subject to tort liability for the loss of consortium claim of the injured person's spouse. He claims the statute does not restrict tort liability to those losses suffered only by the injured party.

This issue is one of first impression. The statute in question, MCL 500.3135; MSA 24.13135, states:

"Sec. 3135. (1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.

"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:

"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.

"(b) Damages for noneconomic loss as provided and limited in subsection (1).

"(c) Damages for allowable expenses, work loss and survivor's loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured." (Emphasis added.)

A statute may be judicially construed if the language used is ambiguous or the statute is susceptible to two or more meanings. Statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. King v Director of the Midland County Dep't of Social Services, 73 Mich. App. 253, 258; 251 NW2d 270 (1977). I conclude that § 3135 is sufficiently lacking in clarity so as to necessitate judicial construction.

Enactment of the no-fault legislative scheme envisioned a correction of the deficiencies and problems that had been found to exist in the tort system. Shavers v Attorney General, 402 Mich. 554, 621-622; 267 NW2d 72 (1978).

The operative language of the statute, coupled with the expressed purpose of limiting automobile injury tort actions in the courts, leads me to believe that the Legislature intended to abolish the type of common-law derivative tort action contemplated by this suit.

Where the Legislature provides specific direction in a statute, it is the general rule that express mention of one thing implies the exclusion of other similar things. People v Malik, 70 Mich. App. 133, 136; 245 NW2d 434 (1976), Baker v General Motors Corp, 74 Mich. App. 237, 246; 254 NW2d 45 (1977).

Unless tort liability for an element of damages has been specifically retained in § 3135(2), the right to recover those damages has been abolished.

Plaintiff argues that eliminating his cause of action without replacing it in the no-fault system is violative of due process. This argument was recently addressed by the Supreme Court in Shavers, supra, at 620-621, wherein it was stated that:

"[t]he Legislature need not provide an `adequate substitute, remedy before abolishing a common-law cause of action in tort; Mackin v Detroit-Timkin Axle Co, 187 Mich. 8, 13; 153 N.W. 49 (1915); Naudzius v Lahr, 253 Mich. 216; 234 N.W. 581 (1931); Silver v Silver, 280 U.S. 117; 50 S. Ct. 57; 74 L. Ed. 221 (1929). The abolition of a common-law tort remedy is measured by the traditional due process test, namely, whether the legislation bears a reasonable relationship to a permissible legislative objective. See discussion, Part IV, supra.

"We believe that the abolition of the tort remedy for personal injury resulting from motor vehicle accidents was clearly justified by deficiencies in the tort system."

Plaintiff also raises an equal protection argument, since a surviving spouse would be able to bring a derivative action for wrongful death under the statute.

Death is one of the threshold statutory requirements for recovery. Clearly, where death results, the injured person cannot maintain his or her own action. Recovery in tort where the injury is death must always be derivative. A wrongful death action is sui generis and cannot be compared to the other requirements of § 3135(1). Furthermore, an equal protection argument was previously addressed by the Court in Shavers, supra, at 624, fn 51, and the statutory requirements were found not to be constitutionally offensive:

"The classification reflects a legislative policy which, although it discriminates between victims, does not in our judgment constitute an invidious discrimination offending the equal protection clause."

See also O'Donnell v State Farm Mutual Automobile Ins Co, 404 Mich. 524; 273 NW2d 829 (1979).

MCL 500.3135; MSA 24.13135 should be strictly construed in light of legislative intent. Limiting tort recovery to injured persons who meet the requisite threshold and to other certain specified exceptions is the only reasonable interpretation that can be assigned this section of the no-fault enactment.

I see no logical reason why a party who has suffered no physical injury should be given preference in recovering noneconomic losses over persons with physical injuries which are insufficient to satisfy the threshold requirements.

I would affirm. No costs, a statutory question being involved.