Summary
holding that the plaintiff, having been unemployed for four years, was not "temporarily unemployed" but, rather, was permanently unemployed
Summary of this case from Popma v. Auto Club Ins Ass'nOpinion
Docket No. 47854.
Decided November 5, 1980. Leave to appeal applied for.
Tercha Daavettila, for plaintiff.
Priscilla S. Burnham for defendant.
Before: J.H. GILLIS, P.J., and BASHARA and CYNAR, JJ.
Plaintiff appeals as of right from an order of the Houghton County Circuit Court granting defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1), 117.2(3). Plaintiff claims on appeal that his complaint stated a cause of action and also that a genuine issue as to a material fact existed.
This case arises out of an automobile accident which occurred on July 11, 1978. Plaintiff claimed he was entitled to lost wages under the no-fault insurance act, specifically, under MCL 500.3107a; MSA 24.13107(1). A review of the relevant facts is necessary to properly frame the issue on appeal.
Plaintiff attended college off and on from 1967 to 1976. He obtained a bachelor of science degree in psychology from Michigan State University in 1972. He was employed by the Copper Country Dairy from 1973 to 1974. He then worked at Fort Wilkins State Park from June 1974 to August 1974. This was his last employment until the accident in 1978.
Plaintiff attended Grand Valley State College from 1975 to 1976 for the purpose of obtaining a teaching certificate. He voluntarily terminated his enrollment at Grand Valley State College one term short of obtaining certification. He then returned to live with his parents. Shortly thereafter, he moved in with his girlfriend, who apparently supported him from 1976 until the date of the accident, July 11, 1978. Plaintiff did not actively seek work until sometime in 1979.
Plaintiff brought suit against defendant because it refused to pay him any lost wages. Plaintiff claimed he was "temporarily unemployed" as that term is used in MCL 500.3107a; MSA 24.13107(1). Defendant made a motion for summary judgment under GCR 1963, 117.2(1), 117.2(3). This motion for summary judgment was granted by the trial court on both grounds: 1) failure to state a claim upon which relief may be granted; and 2) as a matter of law defendant was entitled to judgment since there was no genuine issue as to a material fact. Our disposition on the latter ground renders discussion of the former unnecessary.
Plaintiff argues that the trial court erred in granting defendant's motion for summary judgment based on GCR 1963, 117.2(3). We reject this argument.
Plaintiff contends that whether one is "temporarily unemployed" always is a question of fact for the jury. In this case, it is undisputed that plaintiff had been unemployed for approximately four years prior to the accident, with the last two years being after he voluntarily left college. The record is also clear that plaintiff did not actively attempt to return to work until sometime after the accident. Plaintiff, however, claims that his intention was to return to work and that defendant failed to inquire into the reasons for plaintiff's unemployment.
Under GCR 1963, 117.2(3) the court may consider the evidence and the depositions of the parties in ruling on the motion. Stefan v White, 76 Mich. App. 654, 658; 257 N.W.2d 206 (1977), Sanders v Clark Oil Refining Corp, 57 Mich. App. 687, 692; 226 N.W.2d 695 (1975). The purpose of this court rule is to test the factual support for plaintiff's claim. Walker v Cahalan, 97 Mich. App. 346; 296 N.W.2d 18 (1980).
Plaintiff had ample opportunity to establish a factual dispute regarding the circumstances surrounding his unemployment. See, GCR 1963, 117.3. Although plaintiff has hypothesized many situations in which one may be unemployed for a substantial length of time and still be considered "temporarily unemployed", he did not establish in the court below or on appeal any circumstances peculiar to him under which he might be considered "temporarily unemployed". While the intent of plaintiff to return to gainful employment may be an important element, the mere assertion, after the fact, that he had such intent, which is not supported by any of his actions during the four-year period, does not, in our opinion, raise a genuine issue as to a material fact.
We conclude that the granting of defendant's motion for summary judgment based upon GCR 1963, 117.2(3) was proper on the facts of the case at bar. Defendant was entitled to judgment as a matter of law, as plaintiff was not "temporarily unemployed" within the meaning of that term under § 3107a, for in all the documents, etc. properly considered by the trial court and before us on review, there was no genuine issue raised on this material fact. This is not to say that a student may not recover for wage losses caused by an automobile accident. In Kennedy v Auto-Owners Ins Co, 87 Mich. App. 93; 273 N.W.2d 599 (1978), the Court allowed a student to recover for losses which he could prove. However, the plaintiff in that case apparently had been employed the previous summer before entering college and also had been employed part-time during the school year, as well as part of the following summer. In this case, unlike Kennedy, plaintiff had not been employed for the previous four years without any mitigating circumstances relative thereto having been shown to exist.
The trial court properly granted defendant's motion for summary judgment under GCR 1963, 117.2(3). The decision of the court below, therefore, is affirmed.
Affirmed. Costs to defendant.