Court returns "under the table" wage, PIP dispute to the trial judge for resolution of fact issuesTimothy Ward sued Titan Insurance for wages lost and housing expenses. The trial judge split the baby on summary disposition, awarding the insured his housing costs resulting from the injuries but not awarding any lost wages. The judge concluded that Ward couldn not collect wages for his work as a bouncer because the employer paid Ward cash under the table and Ward did not report the income. The judge also ruled that Ward could collect his full housing costs, with no adjustment to reflect the costs he would have incurred but for the injury.
On appeal, the three Appellate judges sent the case back for a trial on the merits. The majority noted that the legislature did not adopt a rule punishing insureds for a failure of their employer to properly document wages: if such punishment were to be adopted as a matter of public policy, it should be adopted by the Legislature, not the courts. The jury will have to listen to the evidence and decide whether Ward or his employer is telling the truth about "wages he would have earned for work he would have performed."
With regard to living expenses, the judges noted that in dicta in the Griffith decision, the Engler Majority of the Supreme Court suggested that a PIP injury victim could only collect as a PIP benefit for housing expenses resulting from his or her injury. Since Ward did not attempt to distinguish between his pre- and post-injury living expenses, he could not recover the expenses by summary disposition.