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Proposed No-Fault Model Civil Jury Instructions Published for Comment

By Matthew J. Franson posted 02-21-2022 08:08

  

Earlier this month, amendments to the no-fault Model Civil Jury Instructions, Chapters 35 and 36, were published for comment. The comment period ends on July 15, 2022. The proposed amendments reflect the many changes to the no-fault laws passed in 2019. Notably, M Civ JI 36.06A was added to the instructions, reflecting the changes to MCL 500.3135(3)(d), providing that a nonresident plaintiff must establish a “threshold” injury to recover economic and noneconomic losses in a tort action. Also proposed is M Civ JI 36.11A, a new instruction defining “serious impairment of body function,” after the legislature codified the holding of McCormick v Carrier, 487 Mich 180, 795 NW2d 517 (2010). The proposed instructions with redlines are available here.

Below is a summary of the major changes:

MCJI Section

Title

Change

35.01

Explanation of Statute

Updated maximum work loss benefits amount through September 30, 2022.

35.03

Benefits from First-Party Actions

Added a use note discussing limitations on attendant care benefits under MCL 500.3157(1). Added a comment detailing conditions to awarding attorney fees under MCL 500.3148.

35.04

Statutory Interest

Added a use note outlining the time to submit bills to the insurer and the time the insurer has to pay the bill under MCL 500.3142(2).

36.01

Serious Impairment (1995 PA 222 Does Not Apply)

Deleted in its entirety. See M Civ JI 36.11A for updated instruction.

36.01A

Noneconomic Loss Damages for Non-Continuing Serious Impairment Threshold Injury

Deleted distinction between the applicability of 1995 PA 222.

36.02

Mental or Emotional Injury

Deleted distinction between the applicability of 1995 PA 222.

36.03

Permanent Serious Disfigurement

Added language differentiating economic and noneconomic loss depending on Michigan residency status. Use note cites to MCL 500.3135(2)(b) & (3)(d) and notes that out-of-state resident plaintiffs must show a “threshold” injury to recover economic and noneconomic losses.

36.04

Elements of Proof—Explanation of Noneconomic-Economic Distinction for Michigan Resident Plaintiff

Added “for Michigan Resident Plaintiff” to title. Distinguished allowable expense recovery between plaintiffs who are excluded or opted out of allowable expense coverage from those who are not excluded or who did not opt out. Added MCL 500.3135(3)(c) language in use note.

36.04A

Elements of Proof—Explanation of Noneconomic-Economic Distinction for Out-of-State Resident Plaintiff

New instruction explaining the recovery of noneconomic and economic damages for out-of-state plaintiffs under MCL 500.3135(2)(b) & (3)(d).

36.05

Burden of Proof—Noneconomic Loss (To Be Used in Cases in Which 1995 PA 222 Does Not Apply)

Deleted in its entirety.

36.06

Burden of Proof—Economic Loss of Michigan-Resident Plaintiff

Added “of Michigan Resident Plaintiff” to the title. Distinguished allowable expense recovery between plaintiffs who are excluded or opted out of allowable expense coverage from those who are not excluded or who did not opt out. Added MCL 500.3135(3)(c) and MCL 500.3107 language to the use note.

36.06A

Burden of Proof—Economic and Non-Economic Loss of Out-of-State Resident Plaintiff

New instruction establishing the burden of proof for economic and noneconomic losses for out-of-state plaintiffs. Part (b) reflects the changes to MCL 500.3135(3)(d) requiring that plaintiff to establish a “threshold” injury.

36.11A

Serious Impairment of Body Function—Definition (To Be Used in Cases in Which 2019 PA 22 Applies)

New instruction defining a serious impairment of body function following the codification of McCormick v Carrier

36.15

Burden of Proof—Economic and/or Noneconomic Loss (To Be Used in Cases in Which 1995 PA 222 Applies)

Distinguished allowable expense recovery between plaintiffs who are excluded or opted out of allowable expense coverage from those who are not excluded or who did not opt out. Added language in MCL 500.3135(3)(c) pertaining to tort liability for certain damages and MCL 500.3107 permitting insureds to select lesser first-party benefits and qualified persons to exclude coverage for allowable expense benefits.

 

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