Heather Lynn Hannay v. Department of Transportation

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
HANNAY v DEPARTMENT OF TRANSPORTATION
HUNTER v SISCO
Docket Nos. 146763 and 147335. Argued October 8, 2014 (Calendar Nos. 3 and 7).
Decided December 19, 2014.
Heather L. Hannay brought an action in the Court of Claims against the Department of
Transportation (MDOT), seeking damages for injuries she suffered when a salt truck driven by
one of MDOT’s employees ran a stop sign and struck her car. After a bench trial, the court,
Rosemarie E. Aquilina, J., awarded Hannay $474,904 in noneconomic damages, $767,076 for
work-loss benefits, and $153,872 in expenses for ordinary and necessary services. MDOT
appealed, and Hannay cross-appealed. The Court of Appeals, HOEKSTRA, P.J., and K. F. KELLY
and BECKERING, JJ., affirmed. 299 Mich. App. 261 (2013). The Supreme Court granted MDOT’s
application for leave to appeal in order to consider whether economic loss in the form of wage
loss may qualify as a bodily injury under the motor vehicle exception to governmental immunity
and whether Hannay incurred a loss of income from work that she would have performed as
opposed to a loss of earning capacity. 495 Mich. 863 (2013).
Harold Hunter, Jr., brought an action in the Genesee Circuit Court against David Sisco,
Auto Club Insurance Association, and the city of Flint Transportation Department (Flint),
seeking damages for injuries suffered when a dump truck owned by Flint and driven by Sisco
sideswiped Hunter’s vehicle. Flint moved for summary disposition. The court, Joseph J. Farah,
J., denied the motion. Flint appealed. The Court of Appeals, SAWYER, P.J., and SAAD and
METER, JJ., reversed in part, holding that Hunter could not recover noneconomic damages for
pain, suffering, shock, or emotional damage. 300 Mich. App. 229 (2013). The Court of Appeals
denied Hunter’s motion for reconsideration. Hunter sought leave to appeal and Flint sought
leave to cross-appeal. The Supreme Court denied both applications. 495 Mich. 898 (2013).
Hunter moved for reconsideration. The Supreme Court granted the motion, vacating that part of
its previous order denying Hunter’s application for leave to appeal and granting leave to appeal
to consider whether damages for pain and suffering, emotional distress, or both may qualify as a
bodily injury under the motor vehicle exception to governmental immunity. 495 Mich. 960
(2014).
In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices MARKMAN,
KELLY, MCCORMACK, and VIVIANO, the Supreme Court held:
The phrase “liable for bodily injury” contained in the motor vehicle exception to
governmental immunity, MCL 691.1405, means legally responsible for damages flowing from a
physical or corporeal injury to the body. The restrictions on damages recoverable in third-party
tort actions involving motor vehicle accidents set forth in MCL 500.3135 of the no-fault act
apply to cases permitted by the waiver of governmental immunity provided for in the motor
vehicle exception. A plaintiff, therefore, may bring a third-party tort action for economic
damages, such as work-loss damages, and noneconomic damages, such as pain and suffering or
emotional distress damages, against a governmental entity if the requirements of MCL 500.3135
have been met.
1. The Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., limits the
exposure of the state, its agencies, and its political subdivisions to tort liability. The GTLA
provides six exceptions to its broad grant of governmental immunity, including the motor vehicle
exception, which states that governmental agencies shall be liable for bodily injury and property
damage resulting from the negligent operation by any officer, agent, or employee of the
governmental agency, of a motor vehicle of which the governmental agency is owner. To be
“liable” means to be legally responsible. “Bodily injury” means a physical or corporeal injury to
the body. Accordingly, the phrase “liable for bodily injury” means legally responsible for a
physical or corporeal injury to the body. In order to prevail in a negligence action, in addition to
the traditional elements—duty, breach, causation, and damages—a plaintiff must also
demonstrate an actual injury to person or property. Therefore, “liable for bodily injury” in this
context means legally responsible for damages flowing from a physical or corporeal injury to the
body. In other words, “bodily injury” is the category of harm for which the government waives
immunity under the motor vehicle exception, and tort damages naturally flowing from that injury
are compensable. It is a longstanding principle that tort damages generally include damages for
all the legal and natural consequences of the injury, including damages for loss of the ability to
work and earn money, as well as pain and suffering and mental and emotional distress damages.
Therefore, a plaintiff who suffers a bodily injury may recover under the motor vehicle exception
tort damages that naturally flow from the injury, including economic and noneconomic damages.
Bodily injury is not, however, a threshold requirement that opens all doors of potential liability.
Accordingly, a plaintiff cannot seek damages for a bodily injury when the requested damages
resulted from the bodily injury of another.
2. The no-fault act, MCL 500.3101 et seq., generally abrogates tort liability arising from
the ownership, maintenance, or use within this state of a motor vehicle unless the damages fall
under an enumerated exception. To the extent that the no-fault act narrows the damages
available in a third-party tort action, those restrictions apply when the tortfeasor is a
governmental entity. MCL 500.3135(1), (2), and (3)(b) allow third-party tort actions for
noneconomic damages if the death, serious impairment of body function, or permanent serious
disfigurement threshold is met, while MCL 500.3135(3)(c) allows third-party tort actions for
certain kinds of economic damages, specifically damages for allowable expenses, work loss, and
survivor’s loss in excess of the daily, monthly, and 3-year limitations contained in the sections
applicable to those three types of no-fault benefits. Therefore, a plaintiff may bring a third-party
tort action for economic damages, such as work-loss damages, and noneconomic damages, such
as pain and suffering or emotional distress damages, against a governmental entity if the
requirements of MCL 500.3135 have been met.
3. While work-loss damages are compensable under the no-fault act, loss-of-earning-
capacity damages are not. MCL 500.3135(3)(c) allows third-party tort actions seeking damages
for allowable expenses, work loss, and survivor’s loss in excess of the daily, monthly, and three-
year limitations contained in those sections. In the context of no-fault benefits, work loss
consists of the loss of income from work an injured person would have performed during the first
three years after the date of the accident if he or she had not been injured. Work-loss damages
are only available if the accident was the “but for” cause, i.e., the cause in fact, of the work loss.
Put differently, work-loss damages compensate a plaintiff for wages that he or she would have
earned in light of the specific facts of the case. Work-loss benefits are not restricted to a
claimant’s wage at the time of the accident, but prior wages generally are the most relevant and
reliable evidence for determining what a plaintiff would have earned had the accident not
occurred. The trial court found that but for the accident Hannay would have been accepted into a
dental-hygienist program, would have graduated, and would have been employed at least 60% of
the time, by the specific dental office where she was already working, at a rate of $28 an hour.
The trial court erred by awarding Hannay work-loss damages as a dental hygienist because
Hannay did not establish by a preponderance of the evidence that she would have earned wages
as a dental hygienist if not for the accident. The number of conditions that had to be satisfied
before Hannay could have been employed as a dental hygienist indicated that this case involved
more than the inherent uncertainty of work-loss claims in general, rendering the award
impermissibly contingent and speculative.
In Hannay, Docket No. 146763, that portion of the decision of the Court of Appeals
allowing recovery against a governmental entity of economic damages exceeding the statutory
maximum affirmed; that portion of the decision of the Court of Appeals affirming the trial
court’s work-loss damages award reversed; case remanded to the trial court for recalculation of
the work-loss award.
In Hunter, Docket No. 147335, the Court of Appeals’ conclusion that noneconomic
damages are not compensable under the motor vehicle exception reversed; case remanded to the
trial court for further proceedings.
Justice CAVANAGH concurred in the result only.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED DECEMBER 19, 2014
STATE OF MICHIGAN
SUPREME COURT
HEATHER LYNN HANNAY,
Plaintiff-Appellee,
v No. 146763
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
HAROLD HUNTER, JR.,
Plaintiff-Appellant,
v No. 147335
DAVID SISCO and AUTO CLUB
INSURANCE ASSOCIATION,
Defendants,
and
CITY OF FLINT TRANSPORTATION
DEPARTMENT,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
In these cases, we are called upon to interpret a provision of the Governmental
Tort Liability Act (GTLA), MCL 691.1401 et seq., commonly referred to as the motor
vehicle exception to governmental immunity, MCL 691.1405. The statute provides, in
relevant part, that “[g]overnmental agencies shall be liable for bodily injury . . . resulting
from the negligent operation by any officer, agent, or employee of the governmental
agency, of a motor vehicle of which the governmental agency is owner . . . .”1
Specifically, we must address whether the phrase “liable for bodily injury” allows for
recovery of economic damages, such as work-loss damages, and noneconomic damages,
such as pain and suffering or emotional distress damages. The Court of Appeals in
Hannay v Dep’t of Transp concluded that economic damages are compensable under the
motor vehicle exception,2 while the Court of Appeals in Hunter v Sisco concluded that
noneconomic damages are not compensable under this exception.3
We conclude that the phrase “liable for bodily injury” contained in the motor
vehicle exception means legally responsible for damages flowing from a physical or
corporeal injury to the body. More simply, “bodily injury” is merely the category of
harm for which governmental immunity from tort liability is waived under
MCL 691.1405 and for which damages that naturally flow are compensable. Moreover,
1
MCL 691.1405.
2
Hannay v Dep’t of Transp, 299 Mich. App. 261; 829 NW2d 883 (2013).
3
Hunter v Sisco, 300 Mich. App. 299; 832 NW2d 753 (2013).
2
the restrictions on damages recoverable in third-party tort actions involving motor vehicle
accidents set forth in MCL 500.3135 of the no-fault act, MCL 500.3101 et seq., apply to
cases permitted by the waiver of governmental immunity provided for in the motor
vehicle exception. We therefore hold that a plaintiff may bring a third-party tort action
for economic damages, such as work-loss damages, and noneconomic damages, such as
pain and suffering or emotional distress damages, against a governmental entity if the
requirements of MCL 500.3135 have been met.
Because we conclude that work-loss damages are compensable under the motor
vehicle exception, we must also address a second issue presented in Hannay: whether the
facts as found were sufficient to satisfy the statutory language defining work-loss
damages with respect to plaintiff’s claim of work loss as a dental hygienist. Plaintiff, a
22-year-old employed in a dental office, aspired to be a dental hygienist.4 Plaintiff had
previously applied for admission to a dental hygienist program at Lansing Community
College (LCC), but she was not admitted to the program. Plaintiff intended to enhance
her application and reapply to the program, but she had not been accepted at the time of
her injury. Her employer and his wife, a hygienist in his office, testified that plaintiff
would have gained admission to the program and that they would have employed plaintiff
as a hygienist after she completed her education and obtained her license.
Notwithstanding this testimony, we conclude that it is simply too tenuous a proposition to
conclude that the work-loss damages in dispute were a legal and natural consequence of
4
At the time of her accident, plaintiff was working part time as a dental assistant and part
time as a clerk at a dime store, earning approximately $10 per hour at each of these jobs.
3
the tortious conduct. Instead, these damages are contingent and speculative, rendering
plaintiff’s claim for work-loss damages barred under Michigan law to the extent that her
claim is based on potential wages as a dental hygienist.
In Hannay we affirm the Court of Appeals’ holding with respect to the type of
damages recoverable for bodily injury under the motor vehicle exception to governmental
immunity, MCL 691.1405, but we reverse the Court of Appeals’ holding that plaintiff
presented sufficient evidence to support her claim for work-loss damages as a dental
hygienist. In Hunter we reverse the Court of Appeals’ holding with respect to the type of
damages recoverable for bodily injury under the motor vehicle exception to governmental
immunity, MCL 691.1405. We remand both cases to the respective trial courts for
further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. HANNAY
This matter arises from a February 13, 2007 motor vehicle accident involving a
vehicle driven by plaintiff Heather Hannay and a salt truck owned by defendant Michigan
Department of Transportation (MDOT) and driven by MDOT’s employee, Brian Silcox.
Silcox failed to stop at a stop sign, and the salt truck collided with plaintiff’s vehicle.
Plaintiff alleged that Silcox5 and MDOT, as Silcox’s employer and the owner of the salt
truck, were liable for damages caused by Silcox’s negligence. Plaintiff alleged injuries to
her shoulders, neck, spine, back, head, chest, arms, knees, and other internal and external
5
Defendant Silcox is not involved in this appeal because plaintiff dismissed her
complaint against him before trial began.
4
injuries to her body. Plaintiff claimed all economic damages compensable under the no-
fault act, but specifically alleged allowable expenses and work loss in excess of the
statutory limitations.6 MDOT raised governmental immunity as an affirmative defense.
Following a bench trial, the trial court concluded that MDOT was liable for work-
loss damages exceeding the statutory limitations under the no-fault act and that plaintiff
was entitled to work-loss damages as a dental hygienist earning $28 per hour.7 In
reaching its conclusion, the court found that it was “more likely than not” that plaintiff
would “have been admitted into the Dental Hygienist program at LCC,” that it was “more
likely than not [that she would] have successfully completed the program,” and that
plaintiff had proven part-time, but not full-time, employment of three days a week.
The Court of Appeals affirmed, concluding that the trial court did not err by
awarding plaintiff economic damages and that the trial court’s factual findings supported
the calculation of plaintiff’s work-loss award.8 Regarding the trial court’s conclusion that
6
Plaintiff also alleged all noneconomic damages compensable under the no-fault act for
the serious impairment of a body function or permanent serious disfigurement.
Defendant did not appeal the trial court’s finding that plaintiff suffered a serious
impairment of a body function or the trial court’s award of noneconomic damages, and
thus, those issues are not before this Court. Therefore, while the issue of noneconomic
damages is at issue in Hunter, it is not at issue in Hannay.
7
The trial court calculated plaintiff’s work-damages based on a rate of 60% of full-time
employment, i.e., part-time employment, in light of the testimony presented at trial that
(1) plaintiff would have been hired to replace Mrs. Johnston, who worked part time, to
allow her to retire and (2) Dr. Johnston did not have any full-time dental hygienists
currently on staff.
8
Hannay, 299 Mich. App. at 270, 273-274. The Court of Appeals rejected plaintiff’s
cross-appeal, in which plaintiff argued that the trial court erred by calculating her work-
loss damages on the basis of part-time employment rather than full-time employment. Id.
at 273.
5
work-loss damages were recoverable against a governmental entity in light of the motor
vehicle exception, the Court of Appeals held that “the bodily injury that must be incurred
to maintain an action against a governmental entity and the items of damages recoverable
from those injuries are separate and distinct from one another.”9 Thus, the panel
concluded that “work-loss benefits . . . that exceed the statutory personal protection
insurance benefit maximum pursuant to MCL 500.3135(3) are awardable against
governmental entities . . . .”10 The panel characterized work-loss damages as “items of
damages that arise from the bodily injuries suffered by plaintiff,” and explained that “[t]o
hold otherwise would conflate the actual bodily-injury requirement for maintaining a
motor vehicle cause of action against a governmental entity with the types of damages
recoverable as a result of the bodily injury.”11
B. HUNTER
This matter arises from a July 20, 2009 motor vehicle accident involving plaintiff
Harold Hunter, Jr., and a dump truck owned by defendant City of Flint Transportation
Department (Flint) and driven by Flint’s employee, defendant David Sisco.12 Flint’s
vehicle sideswiped plaintiff’s vehicle.
9
Id. at 270.
10
Id.
11
Id.
12
Defendant Sisco is not involved in this appeal because the trial court granted summary
disposition in his favor.
6
Plaintiff sued Flint as the employer of Sisco and owner of the dump truck and
independently for negligent entrustment of a motor vehicle. Plaintiff alleged that the
injuries he suffered amounted to a serious impairment of a bodily function, a permanent
and serious disfigurement, and a serious neurological defect (closed-head injury).
According to plaintiff, he suffered injuries to his spine as a result of the accident.
Plaintiff alleged noneconomic damages, namely, pain and suffering, as well as shock and
emotional damages.13 Flint raised governmental immunity as an affirmative defense.
Flint filed a motion for summary disposition under MCR 2.116(C)(7) and (10),
asserting that plaintiff could not succeed in a claim against Flint because the damages he
sought were not compensable under the motor vehicle exception to governmental
immunity and that plaintiff failed to establish that he suffered a threshold injury under the
no-fault act. Flint’s position was that because plaintiff’s no-fault provider was liable for
economic damages under the no-fault act, and because the motor vehicle exception to
governmental immunity does not allow for recovery of noneconomic damages, the claim
against Flint should be dismissed. The trial court denied Flint’s motion for summary
disposition, concluding that “bodily injury” encompasses noneconomic damages
associated with bodily injury and finding that there was a genuine issue of material fact
regarding whether plaintiff suffered a serious impairment of a bodily function that was
caused by the accident.
13
Plaintiff also alleged economic damages. Flint did not challenge plaintiff’s ability to
recover economic damages. Therefore, while the issue of whether economic damages are
compensable under the motor vehicle exception to governmental immunity is at issue in
Hannay, it is not in Hunter.
7
The Court of Appeals reversed the trial court’s denial of the motion for summary
disposition in part, holding that noneconomic damages “are precluded under
MCL 691.1405 because a governmental agency may only be liable for ‘bodily injury’ and
‘property damage,’ ” and noneconomic damages “do not constitute physical injury to the
body and do not fall within the motor vehicle exception.”14 Plaintiff filed a motion for
reconsideration in light of the Court of Appeal’s decision in Hannay, but the panel denied
the motion.
II. STANDARD OF REVIEW
The meaning of the phrase “liable for bodily injury” is an issue of statutory
interpretation, which this Court reviews de novo.15 The role of this Court in interpreting
statutory language is to “ascertain the legislative intent that may reasonably be inferred
from the words in a statute.”16 In doing so, “[c]ourts must give effect to every word,
14
Hunter, 300 Mich. App. at 235-236, 241. The panel, however, affirmed the trial court’s
ruling that a genuine issue of material fact remained regarding whether plaintiff suffered
a serious impairment of a body function, and remanded “for the trial court to hold a full
evidentiary hearing to determine whether plaintiff did, indeed, suffer a serious
impairment of body function and whether the collision caused his injury.” Id. at 243. We
denied leave to appeal regarding these matters; therefore, they are not before this Court.
As discussed at greater length later in this opinion, however, we take this opportunity to
clarify the propriety of the panel’s inclusion of the “serious impairment” question in its
ordered evidentiary hearing, given the interrelationship between that determination and
the immunity issues now before us.
15
In re Bradley Estate, 494 Mich. 367, 377; 835 NW2d 545 (2013).
16
People v Couzens, 480 Mich. 240, 249; 747 NW2d 849 (2008).
8
phrase, and clause in a statute and avoid an interpretation that renders nugatory or
surplusage any part of a statute.”17 This Court has explained:
When construing a statute, we consider the statute’s plain language, and we
enforce clear and unambiguous language as written. While terms must be
construed according to their plain and ordinary meaning, words and phrases
as may have acquired a peculiar and appropriate meaning in the law, shall
be construed and understood according to such peculiar and appropriate
meaning.[18]
“[W]ords and phrases used in an act should be read in context with the entire act and
assigned such meanings as to harmonize with the act as a whole,” and “a word or phrase
should be given meaning by its context or setting.”19
While this Court reviews a trial court’s factual findings, such as those used to
calculate a damages award, for clear error,20 we review de novo the applicability of those
facts to the law.21
Moreover, when a party files suit against a governmental agency, it is the burden
of that party to plead “his or her claim in avoidance of governmental immunity.”22 A
party can bring a motion for summary disposition under MCR 2.116(C)(7), as was the
17
Id.
18
Bradley Estate, 494 Mich. at 377 (quotation marks and footnotes omitted).
19
Couzens, 480 Mich. at 249-250.
20
MCR 2.613(C). See also Ford Motor Co v Dep’t of Treasury, 496 Mich. 382, 389; 852
NW2d 786 (2014).
21
Cain v Mich Dep’t of Corrections, 451 Mich. 470, 503 n 38; 548 NW2d 210 (1996).
22
Bradley Estate, 494 Mich. at 377.
9
case in Hunter, on the ground that the claim is barred by governmental immunity.23
Plaintiff Hunter also filed a motion for summary disposition under MCR 2.116(C)(10),
which is appropriate when, “[e]xcept as to the amount of damages, there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.”24 This Court reviews de novo decisions regarding motions
for summary disposition.25
III. ANALYSIS
A. THE GOVERNMENTAL TORT LIABILITY ACT
Sovereign immunity and governmental immunity, while related concepts, are not
synonymous.26 “Sovereign immunity refers to the immunity of the state from suit and
from liability, while governmental immunity refers to the similar immunities enjoyed by
the state’s political subdivisions.”27 As we recently explained in In re Bradley Estate, the
GTLA replaced and was preceded by Michigan jurisprudence, dating back to 1837,
“recogniz[ing] the preexisting common-law concept of sovereign immunity, which
immunizes the ‘sovereign’ state from all suits to which the state has not consented,
including suits for tortious acts by the state.”28 MCL 691.1407(1) codifies this common-
23
Id. at 376-377.
24
MCR 2.116(C)(10).
25
Bradley Estate, 494 Mich. at 376.
26
Ballard v Ypsilanti Twp, 457 Mich. 564, 567; 577 NW2d 890 (1998).
27
Id. at 567-568.
28
Bradley Estate, 494 Mich. at 377-378.
10
law sovereign immunity concept and “limits a governmental agency’s exposure to tort
liability.”29
However, the GTLA not only provides immunity for the state and its agencies,
like defendant MDOT in Hannay, but also provides immunity for the state’s political
subdivisions, such as defendant Flint in Hunter.30 We explained in Robinson v Lansing
that “[i]n Michigan, governmental immunity was originally a common-law doctrine that
protected all levels of government.”31 However, this Court, in 1961, “abolished
common-law governmental immunity with respect to municipalities.”32 The Legislature
reacted by enacting the GTLA in 1964, “restoring immunity for municipalities and
preserving this protection for the state and its agencies.”33 The GTLA provides six
29
Id. at 377-378. MCL 691.1407(1) provides:
Except as otherwise provided in this act, a governmental agency is
immune from tort liability if the governmental agency is engaged in the
exercise or discharge of a governmental function. Except as otherwise
provided in this act, this act does not modify or restrict the immunity of the
state from tort liability as it existed before July 1, 1965, which immunity is
affirmed.
30
MCL 691.1401(a), (d), (e); MCL 691.1407(1).
31
Robinson v Lansing, 486 Mich. 1, 5; 782 NW2d 171 (2010).
32
Id., citing Williams v Detroit, 364 Mich. 231; 111 NW2d 1 (1961); McDowell v State
Hwy Comm’r, 365 Mich. 268; 112 NW2d 491 (1961).
33
Robinson, 486 Mich. at 5. See also MCL 691.1407(1) and Ross v Consumers Power Co
(On Rehearing), 420 Mich. 567, 593-608; 363 NW2d 641 (1984) (providing a detailed
history of sovereign immunity, governmental immunity, and the GTLA).
11
exceptions to governmental immunity, one of which is the motor vehicle exception—the
subject of these cases.34
B. THE MOTOR VEHICLE EXCEPTION
The motor vehicle exception to governmental immunity, MCL 691.1405,
provides:
Governmental agencies shall be liable for bodily injury and property
damage resulting from the negligent operation by any officer, agent, or
employee of the governmental agency, of a motor vehicle of which the
governmental agency is owner, as defined in Act No. 300 of the Public
Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled
Laws of 1948.
This provision has remained unchanged from its original phrasing when enacted as part
of the GTLA in 1964.35 The heart of our inquiry is the interpretation of the phrase “liable
for bodily injury,” which contains two key components: (1) “liable for” and (2) “bodily
injury.”
34
The six statutory exceptions to governmental immunity contained within the GTLA
precede and follow the general grant of immunity in MCL 691.1407(1): “the highway
exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the public-
building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413;
the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-
system-event exception, MCL 691.1417(2) and (3).” Wesche v Mecosta Co Road Comm,
480 Mich. 75, 84 n 10; 746 NW2d 847 (2008).
35
1964 PA 170. The motor vehicle exception existed before the GTLA was enacted,
though the wording differed and there were separate statutes relating to the liability of the
state’s political subdivisions and the state itself. See 1945 PA 87, which became 1948
CL 691.141; 1945 PA 127, which became 1948 CL 691.151.
12
1. “LIABLE FOR”
Our recent decision in Bradley Estate sheds light on the proper interpretation of
the phrase “liable for,” though the motor vehicle exception was not at issue in that case.
Instead, we interpreted the phrase “tort liability” found in the GTLA’s broad grant of
immunity, MCL 691.1407(1),36 which grants immunity to governmental entities from
“tort liability if the governmental agency is engaged in the exercise or discharge of a
governmental function.” Specifically, we were called on to decide whether a particular
cause of action sought to impose “tort liability” within the meaning of MCL 691.1407(1),
thus, triggering governmental immunity pursuant to that provision.37 We concluded that
“ ‘tort’ as used in MCL 691.1407(1) is a noncontractual civil wrong for which a remedy
may be obtained in the form of compensatory damages.”38 Looking at the phrase as a
whole, we explained:
Our analysis, however, requires more. MCL 691.1407(1) refers not
merely to a “tort,” nor to a “tort claim,” nor to a “tort action,” but to “tort
liability.” The term “tort,” therefore, describes the type of liability from
which a governmental agency is immune. As commonly understood, the
word “liability,” refers to liableness, i.e., “the state or quality of being
liable.” To be “liable” means to be “legally responsible[.]” Construing the
term “liability” along with the term “tort,” it becomes apparent that the
Legislature intended “tort liability” to encompass legal responsibility
arising from a tort. We therefore hold that “tort liability” as used in
MCL 691.1407(1) means all legal responsibility arising from a
noncontractual civil wrong for which a remedy may be obtained in the form
of compensatory damages.[39]
36
Bradley Estate, 494 Mich. at 371.
37
Id. at 371, 380-385.
38
Id. at 385.
39
Id. (footnotes omitted; some emphasis added; alteration in original).
13
Because this Court concluded that “liable” means “legally responsible,” our interpretation
of “tort liability” in MCL 691.1407(1) informs how to interpret the phrase “liable for” in
the motor vehicle exception. We see no reason why this Court’s prior analysis of the
word “liability,” which stems from the word “liable,” should not likewise apply in this
case, particularly given that the phrases “tort liability” and “liable for” are contained
within the same statute—the GTLA.40 Thus, the phrase “liable for bodily injury” means
legally responsible for bodily injury.
2. “BODILY INJURY”
We interpreted the phrase “bodily injury” in Wesche v Mecosta Co Rd Comm,
specifically within the context of the motor vehicle exception.41 The central issue in
Wesche was “whether the motor vehicle exception . . . authorizes a claim for loss of
consortium against a governmental agency.”42 In analyzing the language of the motor
vehicle exception, we stated: “This language is clear: it imposes liability for ‘bodily
injury’ and ‘property damage’ resulting from a governmental employee’s negligent
operation of a government-owned motor vehicle.”43 Because the GTLA does not define
“bodily injury,” this Court resorted to dictionary definitions, stating:
40
See Robinson, 486 Mich. at 17 (“[U]nless the Legislature indicates otherwise, when it
repeatedly uses the same phrase in a statute, that phrase should be given the same
meaning throughout the statute.”).
41
Wesche, 480 Mich. 75.
42
Id. at 79.
43
Id. at 84.
14
The word “bodily” means “of or pertaining to the body” or “corporeal or
material, as contrasted with spiritual or mental.” Random House Webster’s
College Dictionary (2000). The word “injury” refers to “harm or damage
done or sustained, [especially] bodily harm.” Id. Thus, “bodily injury”
simply means a physical or corporeal injury to the body. It is beyond
dispute that a loss of consortium is not a physical injury to a body. A claim
for loss of consortium is simply one for loss of society and companionship.
. . . Thus, because loss of consortium is a nonphysical injury, it does not fall
within the categories of damage for which the motor-vehicle exception
waives immunity.[44]
We see no reason to deviate from our prior analysis. Thus, because we have interpreted
“bodily injury” to mean “a physical or corporeal injury to the body,” “liable for bodily
injury” means legally responsible for a physical or corporeal injury to the body.
3. “LIABLE FOR BODILY INJURY”
Our final consideration in looking at the phrase “liable for bodily injury” as a
whole is to determine the scope of the liability to which the government is exposed under
the motor vehicle exception. Essential to this inquiry is the fundamental difference
between an injury and the damages that arise from that injury. This Court’s decision in
Henry is instructive for determining the scope of liability in that it delineates this
distinction.45 There, we set forth the traditional elements of a negligence action—“(1)
duty, (2) breach, (3) causation, and (4) damages”46—but explained that “it has always
44
Id. at 84-85 (quotation marks and citations omitted; emphasis added; alteration in
original). We point out that a prior decision of this Court, Roberts v Detroit, 102 Mich.
64; 60 N.W. 450 (1894), effectively resolved the question whether a loss of consortium is
a “bodily injury,” within the context of an early version of the highway exception,
concluding that it was not.
45
Henry v Dow Chemical Co, 473 Mich. 63; 701 NW2d 684 (2005).
46
Id. at 74.
15
been implicit in this analysis that in order to prevail, a plaintiff must also demonstrate an
actual injury to person or property.”47 We then made clear that “such injury constitutes
the essence of a plaintiff’s claim,”48 and that “injury” and “damages” are distinct from
one another, explaining:
While the courts of this state may not have always clearly articulated
this injury requirement, nor finely delineated the distinction between an
“injury” and the “damages” flowing therefrom, the injury requirement has
always been present in our negligence analysis. It has simply always been
the case in our jurisprudence that plaintiffs alleging negligence claims have
also shown that their claims arise from present physical injuries. We are
not aware of any Michigan cases in which a plaintiff has recovered on a
negligence theory without demonstrating some present physical injury.
Thus, in all known cases in Michigan in which a plaintiff has satisfied the
“damages” element of a negligence claim, he has also satisfied the “injury”
requirement.49
Thus, “damages” and “injury” are not one and the same—damages flow from the injury.
In light of this Court’s prior interpretation of “tort liability” in Bradley Estate, this
Court’s interpretation of “bodily injury” in Wesche, and this Court’s delineation of the
difference between “injury” and “damages” in Henry, “liable for bodily injury” in the
present case means legally responsible for damages flowing from a physical or corporeal
injury to the body. Stated differently, “bodily injury” is simply the category of harm (i.e.,
the type of injury) for which the government waives immunity under MCL 691.1405 and,
thus, for which damages that naturally flow are compensable. Therefore, the legal
47
Id. (emphasis added).
48
Id. (emphasis added).
49
Id. at 75 (emphasis added).
16
responsibility that arises from “bodily injury” is responsibility for tort damages that flow
from that injury. This conclusion is supported by the fact that the GTLA generally grants
immunity from “tort liability,”50 and to the extent that this immunity is waived, the
resulting liability, logically, is liability for tort damages.
It is a longstanding principle in this state’s jurisprudence that tort damages
generally include damages for all the legal and natural consequences of the injury (i.e.,
the damages that naturally flow from the injury), which may include damages for loss of
the ability to work and earn money, as well as pain and suffering and mental and
emotional distress damages. For example, in Sherwood v Chicago & WM R Co,51 this
Court approved of a jury instruction that stated:
In estimating the compensatory damages in cases of this character,
all the consequences of the injury, future as well as past, are to be taken
into consideration, including the bodily pain, which is shown by the proofs
to be reasonably certain to have naturally resulted from the injury. The
injured party, when entitled to recover, should be awarded compensation
for all the injuries, past and prospective. These are intended to include and
embrace indemnity for actual nursing and medical expenses; also for loss of
power, or loss of capability to perform ordinary labor, or capacity to earn
money, and reasonable satisfaction of physical powers. The elements of
damages which the jury are entitled to take into account consist of all
effects of the injury complained of, consisting of personal inconvenience,
the sickness which the plaintiff endured, the loss of time, all bodily and
mental suffering, impairment of capacity to earn money, the pecuniary
expenses, the disfigurement or permanent annoyance which is liable to be
caused by the deformity resulting from the injury; and, in considering what
would be a just sum in compensation for the sufferings or injury, the jury
are not only at liberty to consider the bodily pain, but the mental suffering,
anxiety, suspense, and fright may be treated as elements of the injury for
50
MCL 691.1407(1); Bradley Estate, 494 Mich. at 378, 384-385.
51
Sherwood v Chicago & WM R Co, 82 Mich. 374, 383; 46 N.W. 773 (1890).
17
which damages, by way of compensation, should be allowed. [Emphasis
added.]
Thus, damages for both a loss of the ability to work and earn money as well as pain,
suffering, and emotional distress have long been understood as consequences of an injury
for which damages are compensable.52 Additionally, in Beath v Rapid R Co, this Court
concluded that “[t]he plaintiff was not confined in her recovery to damages sustained by
reason of physical pain and anguish suffered, but had the right to recover for the mental
pain and anxiety she was compelled to undergo by reason of the injuries sustained,”
because “the shame and mortification which the plaintiff had suffered by being obliged to
use crutches” “was one of the elements of damages which might naturally flow from the
injury.”53
Moreover, recent caselaw of this Court reiterates this longstanding principle. For
example, in Price v High Pointe Oil Co, Inc,54 we noted the general rule regarding
recovery of damages in a tort action recognized in Sutter v Biggs55 that “the tort-feasor is
liable for all injuries resulting directly from his wrongful act, whether foreseeable or not,
provided the damages are the legal and natural consequences of the wrongful act, and
52
See also Power v Harlow, 57 Mich. 107, 119; 23 N.W. 606 (1885) (involving an action
for damages for injury caused by negligence and approving of jury instructions on
damages, stating, “It was proper for the jury to take into account how the plaintiff might
be restricted in his choice of occupation by the injury, and limited in his ability to work;
and though the word ‘humiliation’ was not a fortunate one to make use of, there can be
no supposition that its use was misleading”).
53
Beath v Rapid R Co, 119 Mich. 512, 517-518; 78 N.W. 37 (1899) (emphasis added).
54
Price v High Pointe Oil Co, Inc, 493 Mich. 238; 828 NW2d 660 (2013).
55
Sutter v Biggs, 377 Mich. 80; 139 NW2d 684 (1966).
18
are such as, according to common experience and the usual course of events, might
reasonably have been anticipated.”56 This body of caselaw collectively demonstrates the
longstanding principle that tort damages generally include the damages that naturally
flow from the injury, which may include both economic damages, such as damages
incurred due to the loss of the ability to work and earn money, as well as noneconomic
damages, such as pain and suffering and mental and emotional distress damages.57
As indicated by the Hannay Court of Appeals panel, concluding that “bodily
injury” does not include damages naturally flowing from that injury would conflate the
requirement of a bodily injury (i.e., the injury requirement recognized in Henry) with the
56
Price, 493 Mich. at 255, quoting Sutter, 377 Mich. at 86. We held in Price, however,
that because no case in this state had permitted a plaintiff to recover for noneconomic
damages resulting only from the destruction of property, the narrower common-law rule
applicable to negligent destruction of property controlled. Id. at 254-256.
See also Grenawalt v Nyhuis, 335 Mich. 76, 87; 55 NW2d 736 (1952) (holding that
the trial court properly refused to charge the jury with an instruction that the plaintiff,
who was injured at a beauty salon, “was not entitled to recover damages for annoyance,
discomfiture[,] and humiliation suffered by her as the result of her inability to have her
hair dyed or tinted”).
57
We note that, under the common law, a plaintiff might be able to recover damages for
emotional distress even if that distress is not alleged to flow from an injury for which the
plaintiff seeks compensation. We have limited recovery on that basis, however, to
circumstances in which the alleged emotional distress is accompanied by physical
symptoms. See Henry, 473 Mich. at 79 (explaining that “our common law recognizes
emotional distress as the basis for a negligence action only when a plaintiff can also
establish physical manifestations of that distress”); Daley v LaCroix, 384 Mich. 4, 12-13;
179 NW2d 390 (1970) (overruling caselaw imposing the “impact requirement” and
holding “that where a definite and objective physical injury is produced as a result of
emotional distress proximately caused by defendant’s negligent conduct, the plaintiff in a
properly pleaded and proved action may recover in damages for such physical
consequences to himself notwithstanding the absence of any physical impact upon
plaintiff at the time of the mental shock”).
19
items of damages that are recoverable as a result of that injury (i.e., the damages that
naturally flow from the bodily injury). Thus, the statutory language of MCL 691.1405
does not support a conclusion that the Legislature intended to restrict liability to certain
items of damages resulting from a bodily injury. Instead, the language only indicates that
the Legislature intended to restrict the categories of injury for which the tort damages that
naturally flow are compensable. We therefore hold that the phrase “liable for bodily
injury” within the motor vehicle exception means that a plaintiff who suffers a bodily
injury may recover for items of tort damages that naturally flow from that physical or
corporeal injury to the body, which may include both economic and noneconomic
damages. As discussed later in this opinion, however, the scope of these damages is
limited by the no-fault act.58
4. “BODILY INJURY” IS A TERM OF ART IN MICHIGAN JURISPRUDENCE
Our analysis interpreting the phrase “liable for bodily injury” gains further support
from our state’s history of governmental-immunity legislation, which indicates that
“bodily injury” is a term of art used by the Legislature in the context of governmental
immunity to refer to a category of injury for which damages that naturally flow are
compensable, as long as those damages are properly pleaded. As a legal term of art,
“bodily injury” is a technical phrase that has “acquired a peculiar and appropriate
meaning in the law” and, therefore, “shall be construed and understood according to such
peculiar and appropriate meaning.”59
58
See Part III.B.6 of this opinion.
59
MCL 8.3a. See also Bradley Estate, 494 Mich. at 377.
20
This phrase appeared in the context of governmental immunity in 1861 in the first
version of the highway exception. Public Act 197 of 1861 provided
[t]hat any person or persons sustaining bodily injury upon any of the public
highways in this State, by reason of neglect to keep in repair any bridge or
culvert, by any township or corporation whose duty it is to keep such bridge
or culvert in repair, such township or corporation shall be liable to, and
shall pay to the person or persons so injured or disabled, just damages, to
be recovered in an action of trespass on the case, before any court of
competent jurisdiction.[60]
The 188561 and 1887 versions of the highway exception added sidewalks to the list of
structures for which there was a duty to keep in repair.62 Therefore, as far back as 1861,
the phrase “bodily injury” was used by the Legislature to connote a category of injury for
which damages—specifically, “just damages”—were compensable.
Our decisions implicating these early versions of the highway exception urge a
consistent interpretation in this case. For example, regarding damages because of an
inability to work, this Court’s decision in Moore v Kalamazoo is instructive.63 In that
60
1861 PA 197 (emphasis added). See also several versions that followed that were
materially the same with regard to imposing liability for “just damages” for “bodily
injury”: 1879 PA 244, 1885 PA 214, and 1887 PA 264. 1887 PA 264 ultimately became
1897 CL 3441.
61
Public Act 214 of 1885 was ruled unconstitutional by this Court because the statute
contained a provision abrogating common-law liability with regard to injuries covered by
the statute and a provision setting dollar limitations on sidewalk claims that were not
expressed in the title of the act. Church v Detroit, 64 Mich. 571, 573-574; 31 N.W. 447
(1887). However, the sidewalk provision was included in the version that followed, 1887
PA 264.
62
1887 PA 264.
63
Moore v Kalamazoo, 109 Mich. 176; 66 N.W. 1089 (1896). The statute in effect at the
time was 1887 PA 264, which became 1897 CL 3441, and provided
21
case, the plaintiff was injured due to a defective sidewalk, and the trial court instructed
that the jury “should take into account her past earnings . . . during the time that she has
already been injured, and the time that you find, from the evidence, that she will remain
incapable of earning anything in the future . . . .”64 This Court concluded that the
allegations were sufficient to warrant admission of the proofs of damages and the
instruction given.65 This case made clear that the damages that were recoverable as a
result of a bodily injury included damages resulting from an inability to work that flow
from the injury, if properly alleged.66
[t]hat any person or persons sustaining bodily injury upon any of the public
highways or streets in this state, by reason of neglect to keep such public
highways or streets, and all bridges, sidewalks, cross-walks and culverts on
the same in reasonable repair, and in condition reasonably safe and fit for
travel by the township, village, city or corporation whose corporate
authority extends over such public highway, street, bridge, sidewalk, cross-
walk or culvert, and whose duty it is to keep the same in reasonable repair,
such township, village, city or corporation shall be liable to and shall pay
to the person or persons so injured or disabled just damages, to be
recovered in an action of trespass on the case before any court of competent
jurisdiction. [Emphasis added.]
64
Moore, 109 Mich. at 178.
65
Id. at 179.
66
See also Abbott v Detroit, 150 Mich. 245, 251-252; 113 N.W. 1121 (1907), a defective
crosswalk case in which this Court approved of jury instructions regarding loss of
earnings, stating:
The charge is not subject to the criticism that it allowed the jury to
speculate. It was confined to such damages arising from this injury as the
jury from the evidence might find by reason of the impairment of her
earning capacity. There was evidence as to the wages she earned upon
which the jury could base their judgment as to the amount of these
damages. The small verdict returned is an indication that no speculation
was indulged in by the jury.
22
In another example, this Court’s 1894 decision in Roberts v Detroit demonstrated
that pain and suffering damages, like damages resulting from an inability to work, were
recoverable for a bodily injury in the context of the highway exception.67 The plaintiff
sought loss-of-consortium damages from the city of Detroit that resulted from injuries his
wife incurred due to falling on a defective sidewalk. The issue was whether the highway
exception applied to provide the plaintiff a cause of action in light of the fact that it was
the plaintiff’s wife who was physically injured, rather than the plaintiff himself.68 This
Court stated, “[s]o far as [the highway exception] is concerned, it limits the liability to
cases of bodily injury,” and concluded that:
The plaintiff’s case does not fall within [the highway exception] (1)
because he has no right to recover for the bodily injury—i.e., pain and
suffering, etc—of another; (2) because the statute in terms limits the
recovery to the person so injured or disabled.[69]
It is clear from Roberts that had the plaintiff, rather than his wife, suffered a bodily
injury, damages naturally flowing from that injury would have been recoverable under
the highway exception, including damages for “pain and suffering.” Further, this case
demonstrates that while damages that naturally flowed from the injury were
compensable, the person seeking such damages must have had a bodily injury.
The statute in effect at the time was 1887 PA 264, which became 1897 CL 3441.
67
Roberts v Detroit, 102 Mich. 64; 60 N.W. 450 (1894).
68
Id. at 65-66.
69
Id. at 67 (emphasis added).
23
More generally, this Court’s decision in Hall v City of Cadillac demonstrated that
damages that were the natural consequence of a bodily injury were recoverable.70 Hall
involved a city’s failure to keep a sidewalk in reasonable repair, which resulted in bodily
injury to the plaintiff, and this Court reviewed the instructions to the jury.71 This Court
concluded in relevant part that the trial court properly instructed the jury that “damages
for the injury suffered and its natural consequences were recoverable, up to the time of
trial, together with such prospective damages of like character as were reasonably
probable . . . .”72 Thus, damages that were a natural consequence of the bodily injury
were recoverable.
In light of the foregoing, by the time the phrase “bodily injury” appeared in the
1964 version of the motor vehicle exception,73 that phrase long had a settled meaning in
Michigan law. “Bodily injury” was understood to be a category of injury for which
damages that were the natural consequence flowed, including both damages resulting
from an inability to work, as well as pain and suffering, so long as those damages were
properly pleaded.
70
Hall v City of Cadillac, 114 Mich. 99, 100; 72 N.W. 33 (1897). The statute in effect at
the time was 1887 PA 264, which became 1897 CL 3441.
71
Id.
72
Id. at 103.
73
1964 PA 170.
24
5. THE HUNTER COURT’S RELIANCE ON WESCHE IS MISPLACED
The Court of Appeals in Hunter relied in part on Wesche’s definition of “bodily
injury” in concluding that because noneconomic damages do not constitute a physical
injury, such damages are not compensable under the motor vehicle exception.74 The
panel first looked to Wesche and agreed with this Court’s conclusion that the term “liable
for bodily injury” does not create a threshold requirement, explaining, “[h]ad the
Legislature intended to simply create a threshold that, once established, would permit
noneconomic or emotional damages, it would have done so explicitly . . . .”75 The panel
determined that the Wesche definition of “bodily injury” was correct, and based on that
definition, concluded that damages for pain and suffering as well as shock and emotional-
distress damages do not constitute a “bodily injury” that is compensable under the motor
vehicle exception.76
We agree with the Hunter panel only to the extent that it concluded that Wesche
correctly defined “bodily injury.” We concluded in Wesche that the motor vehicle
exception does not waive governmental immunity for loss-of-consortium claims,
reasoning that “a loss of consortium is not a physical injury to a body,” and while “a loss-
of-consortium claim is derivative of the underlying bodily injury, it is nonetheless
regarded as a separate cause of action and not merely an item of damages.”77 We
74
Hunter, 300 Mich. App. at 240-241.
75
Id. at 236.
76
Id. at 240-241.
77
Wesche, 480 Mich. at 85 (emphasis added).
25
concluded that the motor vehicle exception “does not state or suggest that governmental
agencies are liable for any damages once a plaintiff makes a threshold showing of bodily
injury or property damage.”78 Unlike provisions of the no-fault act that create a statutory
threshold, such as MCL 500.3135(1), MCL 691.1405 “contains no such language.”79
Instead, “[i]t merely provides that governmental agencies ‘shall be liable for bodily injury
and property damage’ and says nothing to suggest that a separate cause of action, such as
one for loss of consortium, may be asserted once a threshold of ‘bodily injury’ has been
met.”80 For these reasons, this Court held “that a loss of consortium is not a ‘bodily
injury,’ ” and therefore, governmental entities are entitled to governmental immunity for
loss-of-consortium claims.81
We disagree with the Hunter panel’s construction of Wesche because it conflates
injury with damages. We stated in Wesche that “[t]he waiver of immunity is limited to
two categories of damage: bodily injury and property damage.”82 Notably, the word
“damage” in the singular has a very different meaning than the plural word “damages.”
Black’s Law Dictionary defines “damage” as “[l]oss or injury to person or property
,” and “damages” as “[m]oney claimed
by, or ordered to be paid to, a person as compensation for loss or injury Id. at 85-86.
79
Id. at 86.
80
Id.
81
Id. at 87.
82
Id. at 84 (emphasis added).
26
seeks $8,000 in damages from the defendant>.”83 The Court of Appeals in Hunter
ostensibly read the word “damage” in our opinion in Wesche to mean “damages,” which
was an error.84 Moreover, our decision in Wesche focused on the fact that a loss of
consortium does not constitute an “item of damages” because it is not a claim for bodily
injury.85 Thus, it can be inferred from our decision that items of damages naturally
flowing from a bodily injury are compensable. Our conclusion in Wesche that a bodily
injury is not a threshold requirement that, once met, permits recovery of all potential
damages and that, instead, a plaintiff seeking damages for a bodily injury must have
actually suffered a bodily injury, is consistent with this Court’s decision in Roberts.86
The Roberts decision made clear that a plaintiff cannot seek damages for a bodily injury
when the requested damages resulted from the bodily injury of another.87 We therefore
reaffirm that “bodily injury” in the motor vehicle exception is not a threshold requirement
that opens all doors of potential liability for tort damages; rather, it is a category of injury
for which items of tort damages that naturally flow are available, as confined by the
limitations of the no-fault act.88
83
Black’s Law Dictionary (9th ed).
84
Hunter, 300 Mich. App. at 241 (“Such damages simply do not constitute physical injury
to the body and do not fall within the motor vehicle exception.”) (emphasis added).
85
Wesche, 480 Mich. at 85 (“It is beyond dispute that a loss of consortium is not a
physical injury to a body.”). This Court went on to expressly state that “loss of
consortium is not merely an item of damages.” Id.
86
Roberts, 102 Mich. 64.
87
Id. at 67.
88
See Part III.B.6 of this opinion.
27
6. DAMAGES COMPENSABLE UNDER THE MOTOR VEHICLE EXCEPTION
Our analysis, however, does not end with our interpretation of the phrase “liable
for bodily injury” within the motor vehicle exception. While governmental entities are
legally responsible for damages naturally flowing from a physical or corporeal injury to
the body under the language of the motor vehicle exception, this liability is limited by the
no-fault act, which generally abrogates “tort liability arising from the ownership,
maintenance, or use within this state of a motor vehicle,” unless the damages come within
an enumerated exception.89 As we explained in Hardy v Oakland Co, “the restrictions set
forth in the no-fault act control the broad statement of liability found in the immunity
statute.”90 Thus, to the extent that the no-fault act narrows the damages available in a
third-party tort action through its general abolition of tort liability and provision of
certain enumerated exceptions, those restrictions likewise apply when the tortfeasor is a
governmental entity.
Relevant to the present cases, MCL 500.3135(1), (2), and (3)(b) allow third-party
tort actions for noneconomic damages if the “death, serious impairment of body function,
or permanent serious disfigurement” threshold is met, while MCL 500.3135(3)(c) allows
for third-party tort actions for certain kinds of economic damages, specifically
“[d]amages for allowable expenses, work loss, and survivor’s loss . . . in excess of the
daily, monthly, and 3-year limitations contained in” the sections applicable to those three
89
MCL 500.3135(3).
90
Hardy v Oakland Co, 461 Mich. 561, 565; 607 NW2d 718 (2000).
28
types of no-fault benefits.91 Therefore, we hold that a plaintiff may bring a third-party
tort action for economic damages, such as work-loss damages, and noneconomic
damages, such as pain and suffering or emotional distress damages, against a
governmental entity if the requirements under MCL 500.3135 have been met.92 In this
respect, we affirm the Hannay panel’s conclusion that work-loss benefits that exceed the
statutory maximum are available against a governmental entity,93 and we reverse the
Hunter panel’s conclusion that noneconomic damages “do not fall within the motor
vehicle exception.”94
91
MCL 500.3135(3)(c); Johnson v Recca, 492 Mich. 169, 197; 821 NW2d 520 (2012).
92
We note, however, that our holding in this regard is not intended to suggest that the no-
fault act supersedes the GTLA. Rather, MCL 691.1405 and MCL 500.3135 may be read
harmoniously to provide that a plaintiff may avoid governmental immunity if he suffers
“bodily injury” under the motor vehicle exception, but he must also meet the
requirements contained within the enumerated exceptions to the no-fault act’s abolition
of tort liability, such as the “death, serious impairment of body function, or permanent
serious disfigurement” threshold pertaining to recovery of noneconomic damages.
93
Hannay, 299 Mich. App. at 270.
94
Hunter, 300 Mich. App. at 241. The Hunter panel further erred in its analysis of
plaintiff Hunter’s claimed damages by conflating certain questions of liability under the
no-fault act with questions of immunity under the GTLA. As previously noted, after the
Hunter panel erroneously concluded that noneconomic damages were beyond the scope
of the motor vehicle exception’s waiver of immunity, it remanded for the trial court to
conduct an evidentiary hearing to resolve outstanding factual issues bearing on whether
the City was immune from plaintiff Hunter’s claimed excess economic damages and,
thus, entitled to summary disposition as to those damages under MCR 2.116(C)(7) as
well. The Hunter panel included among these factual issues whether plaintiff Hunter
suffered a “serious impairment of body function” as contemplated under MCL 500.3135,
reasoning that “[a] plaintiff making a tort claim for excess damages under the motor
vehicle exception must, as a threshold, show a serious impairment of body function.” Id.
at 241. This reasoning is flawed in two respects. First, while we agree a showing of
“death, serious impairment of body function, or permanent serious disfigurement” is
necessary under the no-fault act in order for a plaintiff to recover noneconomic damages
29
C. HANNAY: WORK-LOSS DAMAGES AWARDED
Because we have concluded that damages for work loss are compensable under the
motor vehicle exception, we must now address whether the facts as found were sufficient
to satisfy the statutory language defining work-loss damages with respect to plaintiff’s
claim of work loss as a dental hygienist. Damages in tort actions that are “[r]emote,
contingent, or speculative” are not compensable because they are not in conformity with
the general rule that a “tortfeasor is liable for all injuries resulting directly from his
wrongful act,” as long as “the damages are the legal and natural consequences of the
wrongful act, and are such as, according to common experience and the usual course of
events, might reasonably have been anticipated.”95 This Court has elaborated on this
point, stating:
in a third-party tort action against a governmental entity, see Hardy, 461 Mich. at 565,
neither the no-fault act nor the GTLA requires this for a plaintiff to recover excess
economic damages. Second, and relatedly, while a plaintiff must demonstrate “death,
serious impairment of body function, or permanent serious disfigurement” to recover
noneconomic damages in a third-party tort action, whether that requirement has been met
is a question of liability, not immunity. As discussed earlier, to demonstrate immunity
has been waived as to a claim for such damages, the GTLA, by its plain language,
requires a showing of “bodily injury.” Accordingly, while plaintiff Hunter’s path to
recovery of noneconomic damages from defendant Flint requires him to demonstrate both
a “bodily injury” under the GTLA and a “serious impairment of body function” under the
no-fault act, he need only clear the first such hurdle in opposing defendant Flint’s motion
for summary disposition under MCR 2.116(C)(7). For these reasons, it was error for the
Hunter panel to conclude that resolution of this motion with regard to excess economic
damages would require an evidentiary hearing before the court to determine whether
plaintiff Hunter suffered a “serious impairment of body function.”
95
Sutter, 377 Mich. at 86. See also Price, 493 Mich. at 254-255. For example, in Sutter, a
medical malpractice case involving the wrongful excising of the plaintiff’s right fallopian
tube, this Court rejected the plaintiff’s argument that by the trial court refusing the
plaintiff’s request for instructions pertaining to her claim of damages for the loss of the
ability to bear children and resulting emotional suffering, “the jury was precluded by the
30
[T]o render a wrongdoer liable in damages in a tort action where the
connection is not immediate between the injurious act and the
consequences, such nearness in the order of events and closeness in the
relation of cause and effect must subsist, so that the influence of the
injurious act would predominate over that of other causes, and concur to
produce the consequences or be traceable to those causes.96
This Court does not, however, “preclude recovery [of damages] for lack of precise proof”
or “require a mathematical precision in situations of injury where, from the very nature of
the circumstances, precision is unattainable,” particularly in circumstances in which the
defendant’s actions created the uncertainty.97 The plaintiff bears the burden to prove the
damages sought by a preponderance of the evidence.98
In addition to these overarching rules for recovery of damages in tort, we
recognize that there is a distinction drawn between work loss and loss of earning capacity
in the context of claims made under the no-fault act. This Court has made clear that
while work-loss damages are compensable under the no-fault act, loss-of-earning-
trial judge from considering her full measure of damages.” Id. at 83. This Court
concluded, “[P]laintiff’s loss of ability to bear children was not a legal and natural
consequence of defendant’s act, but, within the meaning of the rule, was contingent, that
is, contingent upon the possibility that plaintiff could develop a cyst on her remaining
tube which could require excision of the tube itself.” We concluded that “[a]t best, the
damages are contingent and, therefore, barred . . . .” Sutter, 377 Mich. at 87.
96
Sutter, 377 Mich. at 86-87.
97
Fera v Village Plaza, Inc, 396 Mich. 639, 648; 242 NW2d 372 (1976) (quotation marks
and citation omitted).
98
Washington v Jones, 386 Mich. 466, 472; 192 NW2d 234 (1971).
31
capacity damages are not.99 This distinction is derived from the statutory language of the
no-fault act, specifically MCL 500.3107.100
MCL 500.3135(3)(c) allows for third-party tort actions for “[d]amages for
allowable expenses, work loss, and survivor’s loss as defined in sections 3107 and 3110
in excess of the daily, monthly, and 3-year limitations contained in those sections.”
(Emphasis added.) MCL 500.3107 defines “work loss” in the context of no-fault
benefits, providing, in relevant part:
(1) Except as provided in subsection (2), personal protection
insurance benefits are payable for the following:
* * *
(b) Work loss consisting of loss of income from work an injured
person would have performed during the first 3 years after the date of the
accident if he or she had not been injured. . . .[101]
Importantly, the statutory language requires that work-loss damages consist of lost
income from “work an injured person would have performed.” We explained in
MacDonald v State Farm that “work-loss benefits compensate the injured person for
income he would have received but for the accident.”102 Thus, work-loss damages are
99
Ouellette v Kenealy, 424 Mich. 83, 88; 378 NW2d 470 (1985) (“Damages . . . are not
recoverable for loss of earning capacity” under the no-fault act).
100
Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 648; 513
NW2d 799 (1994).
101
MCL 500.3107a adds that “work loss for an injured person who is temporarily
unemployed at the time of the accident or during the period of disability shall be based on
earned income for the last month employed full time preceding the accident.”
102
MacDonald v State Farm Mut Ins Co, 419 Mich. 146, 152; 350 NW2d 233 (1984)
(emphasis added) (concluding that because two weeks after the plaintiff was injured he
32
only available if the accident was the “but for” cause—i.e., cause-in-fact—of the work
loss. Indeed, this Court made clear in Ouellette v Kenealy that such economic damages
“are recoverable in tort only . . . for ‘actual’ work loss,” i.e., “actual loss of income from
work an injured person would have performed if he had not been injured,” “when the loss
of income exceeds the daily, monthly, and three-year limitations.”103
This Court has expressly recognized that in contrast to work-loss damages, loss of
earning capacity damages are those arising from work that an injured person “could”
have performed but for the injury.104 Thus, damages for work loss consist of wages that a
person “would” have earned but for the accident,105 whereas loss-of-earning-capacity
damages are wages a person “could” have earned but for the accident.106 In other words,
work-loss damages compensate a plaintiff for the specific wages that he or she would
have earned in light of the specific facts of the case, while loss-of-earning-capacity
damages compensate a plaintiff for his or her loss of unrealized potential for earning
suffered a heart attack that would have independently rendered him unable to work, the
plaintiff was “ineligible for work-loss benefits after that date under § 3107(b)”).
103
Ouellette, 424 Mich. at 87 (quotation marks omitted).
104
Marquis, 444 Mich. at 647-648. The Marquis Court quoted with approval a Court of
Appeals decision that recognized that the earning capacity “could have earned” standard
“ ‘contrasts sharply with the language’ ” of MCL 500.3107(1)(b) that uses the language
“loss of income from work an injured person would have performed . . . .” Id. at 648,
quoting Nawrocki v Hawkeye Security Ins Co, 83 Mich. App. 135, 140-141; 286 NW2d
317 (1978).
105
MacDonald, 419 Mich. at 152.
106
Marquis, 444 Mich. at 648.
33
income, i.e., for possible wages a plaintiff could have earned if he or she pursued
potential opportunities, education, etc.
Yet, “[w]ork-loss benefits are not necessarily restricted to a claimant’s wage at the
time of the accident.”107 That “a claimant is working a lower paying part-time job at the
time of the accident” does not preclude the plaintiff “from proving that he would have
taken a higher paying full-time job had he not been injured in a car accident.”108
Ultimately, however, “claimants are left to their proofs.”109 In the context of assessing
work-loss benefits under the no-fault act, this Court has made clear that work loss should
not overcompensate a claimant by, for instance, “bas[ing] his work loss, without any
proof of actual loss, on the highest paying job he ever had”; instead, it is “intended to
compensate claimants approximately dollar for dollar for the amount of wages lost
because of the injury or disability.”110
Because work-loss damages are intended to replace the income a person would
have received but for the accident, prior wages generally are the most relevant and
reliable evidence for determining what a plaintiff actually would have earned had the
accident not occurred.111 Only in certain circumstances may a plaintiff recover work-loss
107
Popma v Auto Club Ins Ass’n, 446 Mich. 460, 472; 521 NW2d 831 (1994).
108
Id.
109
Id.
110
Id.
111
Moreover, in scenarios in which the injured person is “temporarily unemployed at the
time of the accident,” the Legislature expressly required that a work loss award “shall be
based on earned income from the last month employed full time preceding the accident.”
MCL 500.3107a (emphasis added). In other words, the Legislature required that work-
34
damages for wages he or she could not have earned before the accident, i.e., wages that
are not based on the plaintiff’s wage history. While the statute by its terms does not limit
a plaintiff’s work-loss award to the plaintiff’s wages at the time of the accident,112 courts
must be cautious in considering wages that the plaintiff could not have earned before the
accident in calculating a work-loss award because of the risk that a calculation based on
such wages will be contingent and speculative and, therefore, barred under Michigan law.
Michigan caselaw provides some examples of circumstances under which it was
appropriate to consider wages the plaintiff could not have earned before the subject
accident in determining what wages a plaintiff would have earned but for the accident. In
Gobler v Auto-Owners Ins Co, this Court interpreted a phrase contained in the survivor’s
benefits provision of the no-fault act, MCL 500.3108, the language of which is analogous
to MCL 500.3107, providing:
loss awards must be based on past wage history when the plaintiff was temporarily
unemployed. This provision was “intended to remedy the situation in which a claimant is
precluded from receiving any work-loss benefits because the claimant is unemployed at
the time of the accident.” Popma, 446 Mich. at 469. While this provision does not apply
to the plaintiff in this case because she was not temporarily unemployed at the time of the
accident, it does provide insight into the Legislature’s intent with regard to the meaning
of “work loss” generally in that it looked to the wages received by the plaintiff. See
Couzens, 480 Mich. at 249 (“[W]ords and phrases used in an act should be read in context
with the entire act and assigned such meanings as to harmonize with the act as a whole.”).
As the Court of Appeals noted in Gerardi v Buckeye Union Ins Co, “By adopting actual
past wages as the appropriate standard for [temporarily] unemployed workers, the
Legislature merely emphasized that the thrust of the work loss provision in all cases was
to calculate loss based on actual earnings, not on future possibilities.” Gerardi v Buckeye
Union Ins Co, 89 Mich. App. 90, 94; 279 NW2d 588 (1979).
112
Popma, 446 Mich. at 472.
35
[A] survivor’s loss . . . 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 . . . .113
The decedent in that case died on the day that he completed his final requirements for a
forestry degree from Michigan State University, had applied for forestry positions, was
awarded a degree posthumously, and received what amounted to a job offer six months
after he died.114 The evidence presented also indicated that the decedent would have
accepted the position. Thus, the evidence established that the decedent would have
earned wages as an employee of the forestry service; but for his death, there was virtually
nothing standing between the decedent and his earning the income at issue.115 This Court
concluded that it was not convinced that the trial court had made a mistake in finding that
the deceased “would have been employed by the forestry service had he survived the
accident.”116
In Swartout v State Farm Mut, the Court of Appeals reversed the trial court’s
decision to dismiss a plaintiff’s claim for work-loss benefits.117 At the time of the
accident, the plaintiff was to graduate from nursing school in two months, but because of
113
Gobler v Auto-Owners Ins Co, 428 Mich. 51, 60; 404 NW2d 199 (1987), citing MCL
500.3108(1) (emphasis altered).
114
Id. at 55-57, 65-66.
115
Id. at 65.
116
Id. at 66.
117
Swartout v State Farm Mut, 156 Mich. App. 350, 352; 401 NW2d 364 (1987).
36
her injuries, she was unable to complete what would have been her final semester.118 She
was able to graduate the following year and obtain employment, but sought work-loss
benefits because of the delay in her employment caused by the accident.119 The plaintiff
submitted the following evidence: (1) an affidavit from her school stating that but for her
being forced to withdraw due to the accident, she would have graduated on time and (2)
an affidavit from a hospital stating that plaintiff would have been employed there no later
than July 27, 1981, if she had received her degree on time, and identifying the rate of pay
she would have received.120 The majority explained:
[The] plaintiff . . . has alleged facts which, if believed, would establish the
source of her employment, the exact date of employment and the exact
wages that would have been received between July of 1981 and June of
1982. In other words, plaintiff has stated a claim for wages that would,
rather than could, have been earned but for her injuries. We therefore
conclude that plaintiff’s claim should have survived defendant’s motion for
summary disposition.[121]
The Court of Appeals majority concluded that “whether plaintiff would have received
income but for her injuries should be left to the trier of fact,” as was the case in Gobler.122
Thus, when the evidence presented demonstrates that the wages at issue were inevitable
but for the accident, a damages award based on such wages will not be barred as a matter
of law on grounds of being contingent and speculative.
118
Id. at 352.
119
Id.
120
Id.
121
Id. at 354.
122
Id. at 355.
37
Unlike the plaintiffs in Gobler and Swartout, however, plaintiff Hannay was not
on the brink of graduating from her professional degree program—indeed, she had not
yet been accepted into the dental hygienist program. Moreover, plaintiff Hannay’s
application for admission was rejected twice, once on its merits. Conversely, in Gobler
and Swartout, the plaintiffs had satisfied nearly every condition to employment.
Plaintiff’s situation is more akin to that of the plaintiff in Gerardi, a Court of Appeals
case in which the plaintiff sought work-loss benefits because of a one-year delay in her
nursing school studies caused by injuries she incurred in an automobile accident.123 The
plaintiff still had one year of nursing school remaining at the time of her injury.124 The
Court concluded that “[a] fair reading of the complaint reveals that the plaintiff is in fact
alleging a loss of wages she could have earned in the future as a registered nurse, but for
the delay in her studies,” i.e., loss-of-earning-capacity damages, reasoning, in part, that
“plaintiff would not have been able to work as a registered nurse prior to her accident.”125
Plaintiff Hannay ostensibly pleaded her claim for damages as a claim for work-
loss damages as a dental hygienist, and the trial court purported to award such damages.
This was error. The evidence presented did not establish by a preponderance of the
evidence that but for the accident, plaintiff Hannay ultimately would have earned wages
as a dental hygienist.
123
Gerardi, 89 Mich. App. at 92-93.
124
Id. at 95.
125
Id.
38
In his deposition testimony, Mark Johnston (the dentist plaintiff worked for as a
dental assistant) indicated that plaintiff was “destined to work in a dental office” and was
“well on her way to getting into the [dental hygienist] program . . . .” Similarly, in her
deposition testimony, Mary Johnston (a longtime dental hygienist who worked with
plaintiff, who had been an instructor at the school where plaintiff applied, and who
administered licensing exams for dentists and dental hygienists) testified that she thought
plaintiff “absolutely . . . would have been admitted into the program.” The Johnstons
both indicated that they would have hired plaintiff as a hygienist in their office.
Clearly, the Johnstons were convinced that plaintiff Hannay would be successful
in achieving her long-held dream of becoming a dental hygienist. The operative question
here is not whether these witnesses were credible126—the operative question is what
exactly did the evidence presented demonstrate? Did the evidence demonstrate that
plaintiff Hannay would have earned wages as a dental hygienist but for her bodily
injuries, or did it demonstrate merely that had she continued to apply herself and pursue
the opportunity to become educated and licensed in that field she could have earned such
wages, i.e., that she possessed a yet-unrealized potential for earning such wages?
We recognize that there is some degree of uncertainty inherent in work-loss
awards generally,127 but even assuming that the opportunity presented by the Johnstons
126
See MCR 2.613 (stating in part that “regard shall be given to the special opportunity
of the trial court to judge the credibility of the witnesses who appeared before it”).
127
See Voss v Adams, 271 Mich. 203, 205-206; 259 N.W. 889 (1935) (recognizing the
natural uncertainty in damages inquiries generally, stating, “uncertain damages are not
always speculative” and that “[t]here is a difference between certainty as to the existence
or cause of an injury and as to the measure or extent of the damage. It is a recognized
39
did in fact constitute an offer of employment, the sheer number of conditions that were
required to be satisfied before plaintiff could be employed by Dr. Johnston—namely, that
plaintiff Hannay would have been accepted into the dental hygienist program, would have
successfully completed the program, and would have passed the licensing exam—places
this case outside the inherent uncertainty involved in work-loss claims.
We conclude that these unsatisfied conditions render the award of work-loss
damages under the no-fault act contingent and speculative in this case and, therefore,
barred under Michigan law to the extent that these damages were based on plaintiff’s
potential employment as a dental hygienist. In short, “it is too tenuous a proposition to
say that the element of damages in dispute,” namely, work-loss damages for loss of
income as a dental hygienist, “is a legal and natural consequence of defendant’s wrongful
act.”128 The Johnstons’ honestly held belief that plaintiff would have succeeded was
simply not sufficient to prove that plaintiff would have satisfied the conditions necessary
to earn wages as a dental hygienist, including the primary condition of being admitted
into the dental hygienist program, a condition which neither they nor plaintiff had final
control over. Accordingly, the facts as found by the trial court were not sufficient to
satisfy the statutory language defining work-loss damages with respect to plaintiff’s
rule that a wrongdoer will not go scot-free because his victim cannot prove his loss
exactly. If the existence and cause of the injury are traced to a tort and damages are not
susceptible of computation, the jury will allow such compensation as, under all the
circumstances and in the exercise of sound conscience and good judgment, they shall
deem just”).
128
Sutter, 377 Mich. at 87.
40
claim of work loss as a dental hygienist, namely that plaintiff would have earned income
as a dental hygienist but for the accident.
For these reasons, we reverse the Court of Appeals’ decision to affirm plaintiff
Hannay’s work-loss damages award, and remand to the trial court for recalculation of the
work-loss award consistent with this opinion.
IV. CONCLUSION
In light of our holding that a plaintiff may bring a third-party tort action for both
economic damages, such as work-loss damages, and noneconomic damages, such as pain
and suffering or emotional distress damages, against a governmental entity if the
requirements under MCL 500.3135 have been met, we affirm the Hannay panel’s
conclusion that work-loss benefits that exceed the statutory maximum are available
against a governmental entity, and we reverse the Hunter panel’s conclusion that
noneconomic damages do not fall within the category of damages compensable under the
motor vehicle exception and remand to the trial court for further proceedings consistent
with this opinion. With regard to the second issue in Hannay, we reverse the portion of
the Court of Appeals’ opinion that affirms the work-loss damages award and remand to
the trial court for recalculation of the work-loss award consistent with this opinion.
Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Bridget M. McCormack
David F. Viviano
CAVANAGH, J. I concur in the result only.
41