July 22, 2021
The Court of Appeals recently upheld an order of summary disposition disposing of plaintiff’s wage-loss benefits, where the plaintiff failed to mitigate his damages by not seeking employment after being released from disability by his physician.
In Baum v Home-Owners, Unpublished Opinion per curium of the Court of Appeals, (Docket No. 352763), the plaintiff claimed that he had been “temporarily laid off” from his employment with Michels Corporation at the time of his December 3, 2017 motor vehicle accident. He further claimed that he had tried to apply for a construction position while on furlough, but the position was filled before he was able to contact the construction company.
In his answers to interrogatories and during his deposition, the plaintiff stated that he had been working for Michels Corporation until the date of the accident, and had been taken off work temporarily the week before the accident, while the company changed job sites. However, the plaintiff’s employer at Michels completed an affidavit during discovery indicating that the plaintiff had been fired nearly a month before the accident, demonstrating that he had in fact been unemployed at the time he was injured.
Home-Owners filed a Motion for Summary Disposition arguing that the insurance policy was void because the plaintiff had fraudulently misrepresented his employment status in pursuit of wage-loss claims. The insurer also argued that the plaintiff had failed to mitigate his damages by not seeking alternative employment after his doctor released him from disability, and permitted him to perform light-duty. The trial court ultimately granted summary disposition on both issues. Although the Court of Appeals determined that there remained questions of fact regarding the allegations of fraud, it upheld summary disposition on the issue of the plaintiff’s failure to mitigate his damages.
During his deposition, the plaintiff testified that he had not even attempted to find alternative employment after his doctor released him to light duty work with restrictions. He testified that he felt that he was only suited for physical work, and that he believed he was unqualified to perform a more sedentary job. Because of this belief, the plaintiff never made any attempt to find alternative work within his restrictions.
The Court of Appeals therefore upheld summary disposition and dismissal of the plaintiff’s wage-loss claims based upon his failure to mitigate his damages.
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or email@example.com