March 04, 2011
Bob MacAlpine, our friend and partner, died on February 25, 2011, after a long and valiant battle with
multiple myeloma. Roz Rochkind shared her feelings about Bob in an e-mail to the rest of the firm on the day
after his passing. With Roz’s permission, we share this e-mail with you. We think you will agree that it is a
beautiful tribute to a fallen warrior.
As someone who had the privilege of working with Bob when he assumed principal responsibility
for a new client in a new area of practice for the firm, and having had a day to compose myself,
I just wanted to say a few words about this honorable man and how much he will be missed.
Bob was, without exception, a man of principle. He was always dependable and did whatever it
took to get the job done within the time available and never took short cuts to do so. Whenever
he saw something that he thought was wrong, he spoke up to correct it. Whenever he saw
something that he thought was right, he did whatever it took to keep it that way. He knew how
to take responsibility. He was 100% loyal to his clients, to his staff, and to this firm. He was a
wonderful mentor to those who have worked with him, providing guidance when necessary, and
praise when due. He was a man to be counted on, and we did so. Even while ill, he remained “in
the game” and did whatever was asked of him or that he thought necessary. He was a rare and
wonderful person and we are less for the loss of him.
We will all think of him often and the story of Bob MacAlpine will become part of the history of
this firm, hopefully inspiring those who may never have met him to be the best person, and the
best lawyer, they can be. He and his family are in my prayers.
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COURT OF APPEALS HOLDS THAT TEACHERS ARE ENTITLED TO WORK LOSS
BENEFITS FOR WORK THEY HAVE NOT PERFORMED
CONTRIBUTOR – DAVID N. CAMPOS1
In a published opinion, the Court of Appeals held in Copus v MEEMIC, ___Mich App ___
(2011) (Docket No. 295499) that a teacher who chooses to work 8/9 months is entitled to wage
loss during the remaining months of the year even though that teacher chose not to work during
the remaining months of the year.
Plaintiff earned a salary of approximately $63,000/yr, and only worked from late August to
mid June of each year, or a total of 183 days, though she elected to have her pay evenly allocated
in checks issued on an every-other-week basis for the full 12 months of the year.
Plaintiff contended that the determination of her work loss benefits should be made on a
12-month basis such that her monthly work loss, after reducing it by 15% as required by 3107,
would come to approximately $4,525.90. Defendant insurer maintained that her entire annual
salary was actually earned or performed during the course of nine months, and thus the “loss of
income for work (she) would have performed” had she not been injured, which would come to
amounts each month regularly exceeding the No Fault maximum benefit of $4,713.00 from
September to June, comes to Zero during the months when the Plaintiff did not have a “work loss”.
The difference in the two calculations approximated $10,000 in work loss benefits.
The applicable provision of the statute upon which MEEMIC based its opinion was MCLA
500.3107(1)(b) which states as follows:
“1. Except as provided in subsection (2), personal protection insurance benefits
are payable for the following:
(b) Work 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. * * * …
beginning March 30, 1973, the benefits payable for work loss
sustained in a single 30-day period and the income earned by
an injured person for work during the same period together
shall not exceed $1,000.”
In conjunction therewith, Attorney General Opinion No. 5673 issued April 1, 1980, in
relevant part states:
“In the case of teachers there is no actual loss of income during the summer months
unless the teacher is employed during those months … this would mean that the
benefits would have to be calculated based upon 9-1/2 months of work at a rate of
pay commencing in September, with the assumption there are no earnings during
the summer months unless a teacher was engaged in summer employment or
demonstrates that he or she would have been employed during the summer but for
the injuries suffered or is usually employed during the summer.”
Notwithstanding the statute and the Attorney General Opinion, the Court of Appeals held:
“There is nothing ambiguous about MCLA 500.3107(1)(b) … However, the statute
does not mandate any sort of temporal correlation between the work and the
income, as Defendant asserts.”
The Court went on to state:
“Put another way, MCLA 500.3107(1)(b) does not say when ‘work loss’ must be
deemed to occur. This is reasonable. In a straight forward hourly context, many
employers delay paychecks by some number of pay periods, so missing a day of
work may not be reflected in a claimant’s pay check for some considerable time.”
The Opinion goes on to state:
“Defendant’s position is not even substantively consistent with the Attorney General
Opinion upon which Defendant relies, at least when the Opinion was read as a
whole instead of as an isolated excerpt.”
Therefore, it would seem that the application of this opinion would be that notwithstanding
the language of MCLA 500.3107 requiring that work loss be for “loss of income from work an
injured person would have performed during the first three years after the date of the accident”,
a teacher who chooses to be paid for nine months of performed work during those nine months
will receive less work loss benefits than a teacher who simply chooses to receive nine months of
wages for nine months of work over a 12-month period.
MEEMIC is applying for leave to appeal this decision to the Michigan Supreme Court.
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GRAND RAPIDS SPRING BREAKFAST SEMINAR
The Grand Rapids office of Garan Lucow Miller P.C. is pleased to present its Annual Spring
Breakfast Seminar on April 13, 2011 at the Frederik Meijer Gardens and Sculpture Park, located at 1000
East Beltline, NE in Grand Rapids {(616) 957-1580}.
Comprehensive written materials will be distributed to all who attend.
After the seminar, feel free to enjoy all of the open indoor and outdoor garden areas as
our guest, including the exciting Butterfly Exhibit! In addition, a membership to Frederik Meijer Gardens
and Sculpture Park will be presented to two lucky seminar attendees, along with day passes to enjoy this
lovely venue.
If you are able to attend this complimentary annual event, please register via e-mail to:
lbeatty@garanlucow.com or phone Lynn Beatty at (616) 742-5500 or (800) 494-6312 for reservations. We
look forward to seeing you!
8:00 – 8:25 am Registration and Continental Breakfast
8:25 – 8:30 am Welcome and Introduction
David N. Campos, Moderator
8:30 – 9:00 am The Three Phases of Surveillance
Speaker: Bob Chapman
Blue Diamond Investigations, LLC
9:00 – 9:20 am Premises Liability Update
C Lugo v Ameritech – Chinks in the Armor C Who will be Deemed an
Owner of an Animal that Causes Injury? C Social Host Claims – Narrow
Avenues for Recovery if the Facts are Right
Speaker: David A. Couch
9:20 – 9:40 am Adjusters and Their Estate Planning
C How to Avoid the 6 most Common Estate Planning Mistakes C Medicaid
Planning C Special Needs C New Tax Laws
Speaker: Tara L. Velting
9:40 – 10:00am Coverage Issues
C Fraud C Theft C Joyriding C Excluded Drivers C Excluded Drivers C
Priorities C Parked Vehicles C Alighting C ORV’s C UM/UIM
Speaker: Thomas G. Herman
10:00 – 10:15 am Break
10:15 – 10:35 am The Medical Marihuana Controversy
COverview of Michigan Medical Marihuana Act C How to Obtain It C Compensable
Benefit in Michigan under the No-Fault Act?
Speaker: Sarah L. Walburn
10:35 – 10:55 am No-Fault Home Accommodation Claims
C Griffith v. Wilcox
Speaker: Emily L. Partridge
10:55 – 11:15 am Third-Party Auto Threshold & Renewed Importance of Surveillance
Life After “McCormick” C Surveillance and “the Pay Off”
Speaker: L. Ladd Culbertson
11:15 – 11:45 am Michigan Auto No-Fault Update
C Case Law Update C Year in Review and Anticipated
Future Case Law Development
Speaker: David N. Campos
11:45 – noon Questions and Answers