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Updated: Changes to the No-Fault Model Civil Jury Instructions

By Matthew J. Franson posted 12-12-2022 12:52

  

The Committee on Model Civil Jury Instructions has amended the no-fault Model Civil Jury Instructions, Chapters 35 and 36. The amendments reflect the many changes to Michigan’s 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 among the amendments is a new version of M Civ JI 36.01A defining serious impairment of body function, after the legislature codified McCormick v Carrier, 487 Mich 180, 795 NW2d 517 (2010), in MCL 500.3135(5).

Below is a summary of the major changes:

M Civ JI Number

Title

Change

35.01

Explanation of Statute

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

35.03

Benefits from First-Party Actions

September 2022: Added a use note discussing limitations on attendant care benefits under MCL 500.3157(10). Added a comment detailing conditions to awarding attorney fees under MCL 500.3148.

35.04

Statutory Interest

September 2022: 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(3).

36.01 (former version)

Serious Impairment (To Be Used in Cases in Which 1995 PA 222 Does Not Apply)

September 2022: Deleted in its entirety.

36.01 (new version)

Serious Impairment of Body Function—Definition (To Be Used in Cases in Which 1995 PA 222 Applies)

September 2022: New version renumbered from M Civ JI 36.11. The comment adds “formerly stated” when quoting MCL 500.3135(7).

36.01A

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

September 2022: New instruction defining a serious impairment of body function following the codification of McCormick v Carrier. The previous M Civ JI 36.01A was renumbered to M Civ JI 36.01B.

36.01B

Noneconomic Loss Damages for Non-Continuing Serious Impairment Threshold Injury

September 2022: Renumbered from M Civ JI 36.01A. Deleted distinction between the applicability of 1995 PA 222 regarding “a body function.”

36.02

Mental or Emotional Injury

September 2022: Deleted distinction between the applicability of 1995 PA 222 regarding “a body function.”

36.03

Permanent Serious Disfigurement

September 2022: Added language differentiating economic and noneconomic loss depending on Michigan residency status. Use note cites to MCL 500.3135(2)(b) and (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

September 2022: 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

September 2022: New instruction explaining the recovery of noneconomic and economic damages for out-of-state plaintiffs under MCL 500.3135(2)(b) and (3)(d).

October 2022: Removed optional language pertaining to applicable economic loss damages and language pertaining to allowable expenses for “insured defendants.”

36.05

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

September 2022: Deleted in its entirety.

36.06

Burden of Proof—Economic and/or Noneconomic Loss for Michigan Resident Plaintiff

September 2022: 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), .3107c, and .3107d, language to the use note.

October 2022: Updated title to include “and/or Noneconomic.” Amended language to reflect now-deleted M Civ JI 36.15.

36.06A

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

September 2022: 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.

October 2022: Added language to reflect the correct burden of proof for out-of-state plaintiffs to recover economic or noneconomic damages, including proximate cause language. Added economic loss and noneconomic loss headings. Added language that recovery is subject to comparative negligence.

36.11

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

September 2022: Renumbered to M Civ JI 36.01.

36.15

Burden of Proof—Economic and/or Noneconomic Loss

September 2022: Deleted “(To Be Used in Cases in Which 1995 PA 222 Applies)” from 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 language to the use note from MCL 500.3135(3)(c) pertaining to tort liability for certain damages, from MCL 500.3107c permitting insureds to select lesser first-party benefits, and from MCL 500.3107d permitting qualified persons to exclude coverage for allowable expense benefits.

October 2022: Deleted in its entirety. Language copied with minor changes to M Civ JI 36.06.

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