FRAZIER v. ALLSTATE INSURANCE COMPANY, 461 Mich. 931 (1999)

605 N.W.2d 13

No. 113796.Supreme Court of Michigan.
December 14, 1999.

On order of the Court, the application for leave to appeal from the August 14, 1998 decision of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Corrigan, J., states as follows:

I join in the order denying leave to appeal because I am persuaded that the Court of Appeals reached the correct result. Plaintiff was not “temporarily unemployed” within the meaning of MCL 500.3107a; MSA 24.13107(1). He had not worked as a machinist in four years, but instead was disabled and seeking employment in a different field. The phrase “temporarily unemployed” refers to unavailability of employment, not the physical inability to perform work. MacDonald v State Farm Mut Ins Co, 419 Mich. 146, 153 (1984). Moreover, Plaintiff’s evidence establishing that he had completed a job-training program and

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was looking for work, and the testimony of his rehabilitation expert that his job prospects at the time were grim because of economic factors that did not improve until a year later, were too speculative to establish “loss of income from work [the] injured person would have performed during the first 3 years after the date of the accident if he . . . had not been injured.” See § 3107(1)(b) [MCL 500.3107(1)(b); MSA 24.13107(1)(b)] incorporated by reference in § 3107a [MCL 500.3107a; MSA 24.13107(1)].

Kelly, J., (dissenting).

This is a no-fault insurance case. The Court of Appeals reversed a jury verdict and concluded that appellant failed to show that he was entitled to lost wages for temporary unemployment. The transcripts show that the jury must have concluded that appellant was actively seeking employment when he became involved in an automobile accident. The jury’s conclusion was based on on evidence that appellant had completed a job-training program and was actively participating in interviews for employment. There was also testimony of a vocational rehabilitation expert showing that, but for an economic downturn in the drafting field, appellant would have been employed.[1] Therefore, I believe that the evidence was sufficient to establish that appellant was “temporarily unemployed” and eligible for lost wages. It appears that the Court of Appeals made an error here. This Court should grant leave to appeal to correct the error.

Cavanagh, J., joins in the statement of Kelly, J.

Reported below: 231 Mich. App. 172.