TIMOTHY WARD V TITAN INS CO
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY WARD,
FOR PUBLICATION
March 16, 2010
Plaintiff-Appellant/Cross-Appellee,
v
No. 284994
Kent Circuit Court
LC No. 04-006032-NF
TITAN INSURANCE COMPANY,
Defendant-Appellee/CrossAppellant.
Before: SERVITTO, P.J., and BANDSTRA and MARKEY, JJ, JJ.
MARKEY, J., (dissenting).
I believe that the trial court properly denied plaintiff’s request for work-loss benefits,
penalty interest and attorney fees; therefore, I dissent in respect to the majority’s decision to
reverse on that issue.
MCL 500.3158(1) provides:
An employer, when a request is made by a personal protection insurer against
whom a claim has been made, shall furnish forthwith, in a form approved by the
commissioner of insurance, a sworn statement of the earnings since the time of
the accidental bodily injury and for a reasonable period before the injury, of the
person upon whose injury the claim is based. (Emphasis added).
The language of § 3158 is unequivocal and unambiguous. The word “shall” signals that
the requirement of section 3158 is mandatory. There is absolutely nothing about the wording of
§ 3158 that provides for any method of proving a claim for work-loss benefits when an insurer
has requested verification from an employer other than that set forth in § 3158. Nor is there any
case law that creates an alternate means. The majority’s decision creates, although perhaps
inadvertently, an exception to § 3158 or an alternative method of proving the amounts claimed
for work-loss benefits. Under the facts of this case, I find the majority’s crafting a loophole for
an employer and his complicit employee who cannot or will not provide the requisite
documentation because they are flouting federal and state tax laws contrary to the plain
language, intent, and spirit of the no-fault act. It is legislating from the bench and creating public
policy where that function resides with the Legislature. Moreover, under the facts of this case, I
can find no injustice to plaintiff. Indeed, both the law and the equities of this fact scenario to me
lie with Titan Insurance, the personal protection insurer.
-1-
Here, there is simply no question whatsoever that plaintiff’s employer although requested
by Titan Insurance failed to provide any documentation whatsoever of wages paid to plaintiff,
much less in accord with § 3158. There is no dispute about this, nor is there any dispute about
the fact that plaintiff’s employer provided no documentation because he maintained no records.
Plaintiff worked “under the table.” It is, however, incumbent upon claimants to prove how much
they would have earned had they not been injured in the automobile accident. Popma v Auto
Club Ins Ass’n, 446 Mich 460, 472; 521 NW2d 831 (1994). Plaintiff and his employer patently
decided together that plaintiff would work “under the table.” This was a joint decision obviously
made to avoid either of them having to pay taxes. But the side effect of that decision is that it
renders the employer and the employee unable—or unwilling—to comply with § 3158, and in
this case, it patently leaves plaintiff unable to prove how much he would have earned had he not
been injured in the automobile accident. MCL 500.3158 does not provide for any alternative
method of proving a claim for work-loss benefits. Nor under this particular scenario, should we
allow for affidavits, testimony, or any other means of proving a claim for wage loss benefits.
Had the Legislature intended for there to be another way of proving such a claim under these
circumstances, surely by now it would have done so, and if it sees the need to, the Legislature
may still, of course, modify the existing statutory requirement.1
What makes this decision, I believe, particularly easy is that plaintiff and his employer
were provided numerous opportunities to furnish the requisite sworn statement of plaintiff’s
earnings. The case languished for years; subpoenas were issued for such records and
documentation, and depositions were scheduled. Yet the information was never provided. This
is not a situation where an injured employee is being punished because of a recalcitrant employer
stubbornly or neglectfully failing to provide proof of income.
When one chooses to accept employment for which he or she will be paid “under the
table,” surely there may be some negative repercussions, and people who make such decisions
should expect some. Because of his own and his employer’s actions, I believe plaintiff forfeited
his ability to claim work-loss benefits under MCL 500.3158. It is improper for this Court to
write in exceptions to the requirement of § 3158, and I believe the plain language of the statute
absolutely forbids us from doing anything other than affirming the trial court in this respect.
Additionally, there is no authority, nor has the majority cited any, for the creation of an
exception to § 3158. The other employees of plaintiff’s employer, also paid under the table,
have indeed submitted affidavits and other evidence, but it is all conflicting. Moreover, without
plaintiff’s hurdling the requirements of § 3158, the issue should be examined no further. The
courts cannot create “a genuine issue of material fact” as the majority concludes where the initial
statutory requirement has not and cannot be met. The simple fact of this case is that plaintiff
cannot provide documentation as required under the statute to make a claim for wage loss
benefits. It is profoundly unfair to allow a judicially created means to collaterally attack the
requirement that such documentation be provided because it puts the no-fault insurance carrier in
1
I can envision factual situations where this Court might consider such evidence to prove a
work-loss claim.
-2-
an untenable position. It has no way whatsoever to dispute or prove – when it is not its burden of
proof – the amount the plaintiff was earning at the time of the accident. It creates a situation rife
with the potential for fraud, frankly, what seems to be precisely the case here. Moreover, we
must look at the no-fault statute in its entirety to interpret it harmoniously. When one reads
MCL 500.3107(1)(b), that portion of the statute that sets forth in detail the computation of work
loss for an injured party, it is again patent that the calculations must stem from the
documentation received from the employer as to how much the injured claimant was earning.
Additionally, I do not believe that my analysis requires us to address or be concerned
with whether plaintiff or his employer filed federal or state income tax returns. I agree that
plaintiff apparently is entitled to other forms of first-party no-fault benefits, for example the
attendant care and housing that is also claimed in this case. I would not deny him, nor do I
believe the trial court denied his claim for work-loss benefits based on the fact that he or his
employer failed to comply with tax laws. In short, I see no applicability under the facts of this
case and in view of the statutory language previously discussed for any resort to MCL 500.3l13.
In conclusion, the unfortunate ramification for plaintiff in this case who chose to work
“under the table” is that he cannot meet the statutory requirements for documenting his wages.
Nor can his employer supply the requisite proof by any other means. Without documentation for
the amount he was allegedly earning, I do not believe he can prove a claim for work-loss benefits
under MCL 500.3107. Summary disposition is proper under MCR 2.116(C)(10) where the
evidence fails to establish a genuine issue regarding any material of fact, and the moving party is
entitled to judgment as a matter of law. Here, there is no genuine issue of the material fact that
plaintiff cannot and did not provide the requisite statutory documentation in respect to his
earnings at the time of the accident. The statute requires he provide such documentation when
the insurer, here, Titan, so requests. Because there is no genuine issue regarding that fact,
defendant was entitled to summary disposition as a matter of law, and the trial court was correct
in doing so.
I would affirm the trial court on this issue.
/s/ Jane E. Markey
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.