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Damages under No-Fault in Tort Cases:

Posted August 22, 2016

Noneconomic Losses

Under the no-fault act, a driver or an owner of a motor vehicle who is responsible in tort for a plaintiff’s injuries may be held liable for the plaintiff’s noneconomic losses such as pain and suffering only if the plaintiff proves that he or she has sustained a threshold injury. MCL 500.3135(1). If the plaintiff was operating his or her own uninsured motor vehicle at the time of the accident, he or she is not entitled to noneconomic damages. MCL 500.3135(2)(c). However, an uninsured plaintiff would be entitled to economic losses (wage loss) in excess of the no-fault benefit benefits otherwise payable. MCL 500.3135(3)(c)

Economic Losses

Under the act, virtually all medical expenses are covered by the first-party insurer as long as they are reasonably necessary and are incurred as a result of the motor vehicle accident. Lost wages are, on the other hand, payable only for “loss of income from work an injured person would have performed during the first 3 years after the date of the accident.” MCL 500.3107(1)(b). Not surprisingly, the most frequent economic claim in third-party cases is for lost wages beyond the three-year statutory period.

Lost Wages

The requirement that a plaintiff must prove an actual income loss, rather than a loss of future earning capacity, presents proof difficulties for individuals with inchoate or prospective employment situations. A difficult problem of proof arises when, for example, the plaintiff is a third-year college student. It is difficult to prove what would have been earned three years after an auto accident when the plaintiff’s career has not yet commenced or, possibly, has not even been chosen. Although the No-Fault Act does not expressly limit a plaintiff’s work-loss award to the plaintiff’s wages at the time of the accident, courts must be cautious in considering wages outside of plaintiff’s wage history … because of the risk that a calculation based on such wages will be contingent and speculative The area of excess economic losses and long-term economic disabilities is a fruitful field for plaintiffs’ attorneys if they prepare thoughtful and creative proofs concerning a plaintiff’s future employment.

Property Protection Benefits

MCL 500.3135 precludes a third-party suit for damage to property as long as none of the exclusions discussed in §§4.32–4.35 apply. However, no-fault insurers must pay benefits for “accidental damage to tangible property arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle.” MCL 500.3121(1). These benefits are due regardless of fault. MCL 500.3121(2). MCL 500.3121(3), (5) set forth what constitutes property damage and what benefits are available. MCL 500.3121(1), amended in 1993, excludes from coverage damages to vehicle repair facilities.

Damage to Motor Vehicles

Vehicles and their contents are excluded from property protection coverage, unless the vehicle is parked in a manner that does not cause unreasonable risk of the damages that occurred. MCL 500.3123(1)(a). Thus, unless this exception applies, there is no first-party recovery for damage to vehicles for either the plaintiff or the defendant. A reasonably parked vehicle is treated as property, and damage to that vehicle may be recovered as property protection benefits. Note that the statute applies to vehicles and is not limited to motor vehicles.

Cases Involving the Dramshop Act

If a bar is to be a defendant in a motor vehicle negligence case, the plaintiff must look closely at the requirements of the dramshop act, MCL 436.1801, which is discussed in detail in chapter 5. In cases involving dramshop liability, the plaintiff must give written notice of the claim to the bar within 120 days after the attorney-client relationship is commenced. MCL 436.1801(5). The plaintiff must also be aware that a two-year statute of limitations applies. MCL 436.1801(4). All defenses, including the no-fault immunities that are available to the intoxicated driver, are also available to the bar. MCL 436.1801(8).

Consequences of Comparative Negligence

The plaintiff’s comparative negligence or the negligence of his or her decedent may have a substantial effect on his or her ability to recover damages in a third-party case. MCL 500.3135(2)(b) provides that damages must be assessed on the basis of comparative fault, except that a party who is more than 50 percent at fault is not entitled to noneconomic damages.


Product Liability

Posted July 2, 2016

Under Michigan law, a product liability action is an action based on a legal or equitable theory of liability brought for the death of a person or for injury to a person or damage to property caused by or resulting from the production of a product. One common requirement in all product liability claims is a finding of a defect in the product. A defect in the product can be established through a variety of theories that include the following:

(1) negligent design of the product;

(2) negligent manufacture of the product;

(3) negligent failure to warn about some aspect of the product;

(4) breach of an express or implied warranty; or

(5) misrepresentation or fraud about the product.


Because a product will be the key piece of evidence in this type of claim, the plaintiff and their attorney must be particularly attuned to evidentiary considerations necessary to successfully maintain their claim. These include:

(1) issues regarding preserving the actual product involved in the lawsuit;

(2) obtaining exemplar or similar products for comparison; and

(3)understanding the market for these types of products.


In a recent Michigan products liability case, the Michigan Court of Appeals held that must an injured party must prove a defect attributable to the manufacturer and contributory connection between that defect and the injury or damage of which is the cause of the suit. In all product liability actions, a plaintiff must plead and prove the following: (1) the product is defective; (2) the defect caused the injury or damage; and (3) injury or damage was sustaine


No-Fault Threshold for Tort Claim:

Posted June 22, 2016

A major distinction between third-party motor vehicle negligence litigation and other negligence suits is that the plaintiff in a motor vehicle negligence suit must show that his or her injury is serious enough to warrant filing a suit to recover noneconomic damages. No-fault immunity bars the plaintiff from recovering any noneconomic losses such as pain and suffering or mental anguish unless he or she demonstrates one of the three classes of injury stated in MCL 500.3135 or, in no-fault parlance, unless the injured party crosses the no-fault threshold. A motor vehicle accident victim has met the statutory threshold if he or she has suffered

  • death,
  • permanent serious disfigurement, or
  • serious impairment of a body function.

Once the threshold has been crossed, a plaintiff does not have to maintain a continuing level of threshold injury to recover noneconomic damages. Byer v Smith, 419 Mich 541, 357 NW2d 644 (1984). In other words, if a serious impairment subsides over time to a point where it is no longer a serious impairment but still causes pain and suffering, noneconomic damages remain available. The no-fault tort immunity provision in MCL 500.3135 does not bar a loss of consortium claim as long as the principal claimant meets the threshold.

MCL 500.3135




Understanding your rights is essential when someone you love suffers a wrongful death. The Southwest Michigan Civil Litigation Attorneys at Hettinger & Hettinger, P.C. have experience in nearly every facet of civil litigation and personal injury..