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Maloney v. Auto Owners Insurance8/15/2000
FOR PUBLICATION
9:10 a.m.
In this action for no-fault survivor's loss benefits, defendant Auto Owners Insurance appeals as of right from the May 19, 1997, directed verdict in favor of plaintiff Meggen Maloney, as next friend of Trevor Gauntlett, a minor. Defendant also appeals as of right from the trial court's August 29, 1996, order denying defendant's motion for summary disposition and the trial court's January 23, 1997, order denying defendant's renewed motion for summary disposition and granting plaintiff's motion for summary disposition as to liability. We reverse.
In 1993, Trevor Gauntlett was fourteen years old and lived in Augusta, Michigan with his mother, Ellen Flinn, who was divorced. Flinn was not employed; however, she was the beneficiary of a trust. On March 19, 1993, Gauntlett and Flinn were in an automobile accident. Flinn suffered fatal injuries and died that evening. Gauntlett became the sole beneficiary of the trust after his mother's death. With the assistance of his next friend and sister, Meggen Maloney, Gauntlett submitted a claim for no-fault insurance survivor's benefits under his mother's policy with defendant. Defendant denied the claim, contending that Gauntlett failed to show any compensable loss of support after his mother's death.
Plaintiff filed a claim in the circuit court on November 2, 1995, seeking payment of the requested benefits by defendant. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that Gauntlett suffered no compensable loss after his mother's death because he continued to receive support from weekly child support payments and trust withdrawals, which were in the trustee's discretion but were never denied to Gauntlett; thus he received the same support after his mother's death as he received before her death. Plaintiff opposed the motion and moved for summary disposition pursuant to MCR 2.116(I)(2), arguing that the trust corpus was decreased due to estate and inheritance taxes, funeral expenses, and bequests; therefore, Gauntlett suffered a yearly loss of investment income. On August 23, 1996, the trial court entered an order denying both parties' motions and holding that plaintiff was required to show that Gauntlett suffered a loss due to his mother's death, which the court would measure as the difference between the amount he received from the trust during his mother's life and the amount he received in the trustee's discretion after his mother's death.
Defendant filed a renewed motion for summary disposition on November 15, 1996, arguing that plaintiff failed to show a loss as required by the court's August 23, 1996, order. The trial court denied defendant's motion and held that it would measure Gauntlett's loss as the decrease in his mother's income-producing assets. The court then granted plaintiff's motion for summary disposition with regard to liability only.
A jury trial on the issue of damages was held on April 21, 1998. Gauntlett testified that he received various disbursements from the trustee after his mother's death, including disbursements for school, vacations, and a car, and he had never been denied a disbursement when he requested one. He further stated that he received approximately $33,000 a year in child support, half of which he was allowed to use and half of which was deposited into the trust. Pat Lewellen, an employee of the Old Kent Bank Trust Department, testified that her bank managed Ellen Flinn's trust. Lewellen stated that Gauntlett was the sole beneficiary of the trust after Flinn's death and he would be entitled to all of the trust income at age eighteen, half of the trust corpus at age twenty-five, and the balance of the trust co
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