DocketNumber: Docket No. 284994
Citation Numbers: 287 Mich. App. 552
Judges: Bandstra, Markey, Servitto
Filed Date: 3/16/2010
Status: Precedential
Modified Date: 9/9/2022
Plaintiff appeals as of right the trial court’s denial of his request for work loss benefits, penalty interest, and attorney fees. Defendant cross-appeals, arguing that the trial court incorrectly awarded the full cost of plaintiffs housing expenses. We reverse and remand.
We review a decision on a motion for summary disposition de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(0(10) where the proffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10); MCR 2.116(G)(4); Coblentz, supra at 568, quoting Maiden, supra.
With respect to plaintiffs first issue on appeal, MCL 500.3107(l)(b) provides that personal protection insurance benefits are payable for “ [w]ork 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.” A plaintiff must suffer a loss of income to be entitled to benefits under this section. Ross v Auto Club Group, 481 Mich 1,
Here, plaintiffs deposition testimony that he was regularly employed at Club Tequila as a bouncer at the time of his accidental injuries was corroborated by two fellow employees, Alvin Bright and Larry Howard, as well as by an affidavit from the person plaintiff claimed had employed him, Teion Crews. In response, defendant points out that the owner of Club Tequila denied ever having plaintiff as an employee. However, Crews later gave sworn testimony that plaintiff was an independent contractor rather than a direct employee. But, on the other hand, as defendant also points out, Crews’ testimony also indicated that plaintiff did not work as often as he claimed (and as Crews has previously averred) and, further, that plaintiff was not likely to have continued on as a bouncer in any capacity as a result of plaintiffs marijuana use.
Suffice it to say that this case was replete with factual questions surrounding plaintiffs employment at the time of the accident and thus his entitlement to wage loss benefits resulting from the accident. How often plaintiff worked, what he earned, his prospects for continued employment, whether he was an employee or an independent contractor and related questions are best left to the fact-finder; they were not properly resolved against plaintiff through a summary disposition order.
Further, we note that, while plaintiff freely admitted at his deposition that the wages he claimed he earned at Club Tequila were paid “under the table” and the record suggests that plaintiff failed to properly file income tax returns regarding any income he earned, his claim would not be barred under the wrongful conduct
In sum, we agree with plaintiff that factual questions existed with respect to his wage loss claim. The trial court improperly granted defendant summary disposition on that claim.
Turning next to defendant’s cross-appeal, we further conclude that the trial court erred by awarding plaintiff housing costs based on the full amount he currently pays for rent. This issue is governed by Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005). Although Griffith considered compensation for food expenses, it indicated, in dicta, that its reasoning and analysis would also apply to housing costs. Id. at 538. Under the Griffith analysis, plaintiffs housing costs are only compensable to the extent that those costs became greater as a result of the accident. Id. at 535-540. Plaintiff must show that his housing expenses are different from those of an uninjured person, for example, by showing that the rental cost for handicapped accessible housing is higher than the rental cost
Accordingly, we reverse the orders granting summary disposition to defendant regarding the wage loss claim and to plaintiff regarding the housing cost claim. In light of those determinations, we need not consider plaintiffs arguments regarding penalty interest and attorneys fees, which would be better addressed initially by the trial court following factual determinations as to timing and the propriety of plaintiffs no-fault insurance claims, as well as defendant’s actions in response.
We reverse and remand for further proceedings not inconsistent with this opinion. Neither party having fully prevailed, no costs shall be imposed. We do not retain jurisdiction.
Of course, the lack of earnings documentation is something for the fact-finder to consider in weighing plaintiffs work loss claim.