Davey v. Detroit Automobile Inter-Insurance Exchange , 98 Mich. App. 123 ( 1980 )

98 Mich. App. 123 (1980) 296 N.W.2d 12

DAVEY
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE

Docket No. 44477.

Michigan Court of Appeals.

Decided April 30, 1980.

Rosenburg, Stanton, Bullen & Nelson (by Terry J. Klaasen), for plaintiff.

Susskind, Hedstrom & Falahee, for defendant on appeal.

Before: MacKENZIE, P.J., and BASHARA and D.C. RILEY, JJ.

PER CURIAM.

Plaintiff's husband was killed in a motor vehicle accident in the state of Michigan on August 7, 1975. Following his death, plaintiff sought benefits under a no-fault insurance policy issued by the defendant. A dispute arose between plaintiff and defendant over the amount of benefits plaintiff was entitled to as her husband's survivor pursuant to MCL 500.3108; MSA 24.13108. Plaintiff subsequently filed suit in Jackson County Circuit Court, alleging that she was entitled to benefits totaling $1,111 per month and that she need not set off social security and veterans benefits against her no-fault survivor's benefits.

Based upon the Court of Appeals opinion in O'Donnell v State Farm Mutual Automobile Ins Co, 70 Mich. App. 487; 245 NW2d 801 (1976), which declared the no-fault setoff provisions unconstitutional, the court found plaintiff to be entitled to benefits without any setoffs. The court awarded plaintiff $1,111 per each 30-day period, the amount her husband would have been entitled to under MCL 500.3107; MSA 24.13107, had he survived the accident.

Section 3107 of the no-fault act provides work-loss benefits for individuals surviving motor vehicle accidents. The maximum statutory benefit for those injured parties is $1,000 per each 30-day period plus any cost-of-living increases. Section 3108 which provides benefits for surviving dependents also has a ceiling of $1,000 per each 30-day period. However, prior to an amendment in 1978 (which would not affect the instant plaintiff), this section made no provision for cost-of-living increases for those surviving the death of family members.

The lower court agreed with plaintiff that the distinction between the two classifications deprived her of equal protection rights under the law. Therefore, the award of $1,000 plus cost-of-living benefits, or $1,111 per month, was held to be proper.

The Supreme Court subsequently overruled O'Donnell (404 Mich. 524; 273 NW2d 829 [1979]), thus upholding the setoff provisions of the no-fault act. The Legislature amended § 3108 to include cost-of-living increases effective October 16, 1978.

On February 2, 1979, plaintiff filed a motion to enforce the earlier judgment, claiming defendant had not paid $1,111 for each 30-day period due, or interest or attorney fees as ordered by the court. Defendant responded that since O'Donnell, had been reversed by the Supreme Court, plaintiff was no longer the prevailing party and, therefore, was not entitled to attorney fees pursuant to MCL 500.3148; MSA 24.13148. The court granted plaintiff's motion to enforce in an opinion dated March 14, 1979, in which the court indicated that the parties had agreed between themselves as to how to deal with the setoff issue subsequent to the Supreme Court's holding in O'Donnell, supra.

"Plaintiff, according to the pleadings and file, has acquiesced in the off-set of Social Security benefits she receives against the defendant's survivor benefits payment, dispite [sic] this Court's May 4, 1978, Judgment pursuant to the agreement of counsel."

With regard to the cost-of-living question, the court stated:

"This Court found no rationale [sic] basis for the classification made in benefits where injured parties receive cost of living adjustments against survivor benefits where cost of living adjustments were not so provided, and the deceased first incurred injuries that caused his death and his survivors are entitled to the benefits of such costs of living.

"The issue of denial of equal protection of law and unconstitutionality of benefit differentials for injured persons versus survivors was not decided by O'Donnell, and thus, the Judgment of May 4, 1978 is res adjudicata [sic] as to the factual situation here presented."

Defendant now appeals the court's ordering of payments of $1,111 per month plus attorney fees and interest. It specifically questions the lower court's finding that § 3108 of the no-fault insurance act was unconstitutionally violative of plaintiff's equal protection rights. The court's ruling on the setoff provision is not challenged on appeal.

The equal protection test for socioeconomic legislation such as the no-fault act is whether the statute is reasonably related to a legitimate legislative objective. O'Donnell v State Farm Mutual Automobile Ins Co, 404 Mich. 524, 540-541; 273 NW2d 829 (1979), Shavers v Attorney General, 402 Mich. 554, 612-613; 267 NW2d 72 (1978). The purpose of both § 3107 and § 3108 is presumably to provide motor vehicle accident victims and their dependents with compensation for lost wages and medical expenses, a perfectly legitimate legislative objective. See MCL 500.3105; MSA 24.13105. However, defendant has set forth no possible relation, nor can we postulate one, between that objective and the cost-of-living distinctions. We believe that this deficiency was implicitly recognized by the Legislature when it added cost-of-living benefits to § 3108 in 1978. Therefore, it was proper for the trial court to declare the original § 3108 unconstitutional, based on equal protection grounds, and to remedy the matter by awarding plaintiff the full benefits that her deceased husband would have received under § 3107 had he survived. See People v Neumayer, 405 Mich. 341; 275 NW2d 230 (1979).

Defendant's brief on appeal does not challenge the validity of the circuit court's judgment holding defendant liable for benefits without any necessity for setoffs. It is well settled that issues not raised and briefed on appeal will be deemed abandoned. Meshriy v Sun Oil Co, 67 Mich. App. 709, 711; 242 NW2d 497 (1976), Taylor v Klahm, 40 Mich. App. 255, 269; 198 NW2d 715 (1972). Since plaintiff has won on the equal protection issue and the defendant has failed to appeal the setoff issue, plaintiff is still the prevailing party. It is clear then that plaintiff remains entitled to attorney fees. MCL 500.3148; MSA 24.13148.

Affirmed.