                                                                             Michigan Supreme Court
                                                                                   Lansing, Michigan
                                                       Chief Justice:          Justices:



Opinion                                                Robert P. Young, Jr. Michael F. Cavanagh
                                                                            Marilyn Kelly
                                                                            Stephen J. Markman
                                                                            Diane M. Hathaway
                                                                            Mary Beth Kelly
                                                                            Brian K. Zahra

                                                                        FILED JULY 23, 2012

                             STATE OF MICHIGAN

                                   SUPREME COURT


 MYRIAM VELEZ,

              Plaintiff-Appellee/Cross-
              Appellant,

 v                                                              No. 138952

 MARTIN TUMA, M.D.,

              Defendant-Appellant/Cross-
              Appellee.


 BEFORE THE ENTIRE BENCH

 MARY BETH KELLY, J.
       In this joint and several liability medical malpractice case, defendant, Dr. Martin

 Tuma, seeks a reduction of the final judgment rendered against him by the amount of his

 codefendants’ settlement.    This case therefore concerns the interplay between the

 common-law setoff rule, whereby a jointly and severally liable tortfeasor is entitled to a

 setoff from any adverse verdict in the amount of the cotortfeasor’s settlement, and the

 noneconomic damages cap of MCL 600.1483, which limits a medical malpractice

 plaintiff’s recovery of noneconomic damages. Specifically, we must decide whether the
Legislature intended to abrogate the common-law setoff rule and, if not, the order in

which the setoff rule and the noneconomic damages cap of MCL 600.1483 apply to a

jury’s verdict. Both the circuit court and Court of Appeals held, pursuant to Markley v

Oak Health Care Investors of Coldwater, Inc,1 that the common-law setoff rule applies

and that the setoff must be applied to the jury’s verdict before application of the cap on

noneconomic damages.

       We agree that Markley was correctly decided and thus hold that the Legislature

did not abolish the common-law setoff rule in the context of joint and several liability

medical malpractice cases. We affirm the Court of Appeals in this regard and further

clarify that where the Legislature has retained principles of joint and several liability, the

common-law setoff rule applies. The lower courts’ sequencing of the setoff and the

noneconomic damages cap, however, results in an outcome contrary to the Legislature’s

requirement that medical malpractice plaintiffs “shall not” recover more noneconomic

losses than the amount determined by MCL 600.1483. Rather, the Legislature has

exercised its authority to limit a medical malpractice plaintiff’s recovery by capping

noneconomic losses and requiring the reduction of economic losses by the amounts paid

by collateral sources. Because application of the setoff to the jury’s verdict can result in

a recovery beyond those statutorily mandated damages limitations, we further hold that a

joint tortfeasor’s settlement must be set off from the final judgment after application of

the noneconomic damages cap of MCL 600.1483, as well as the collateral source rule.


1
 Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245; 660 NW2d
344 (2003).



                                              2
We therefore reverse that portion of the Court of Appeals’ judgment affirming the circuit

court’s application of the common-law setoff rule.

                       I. FACTS AND PROCEDURAL HISTORY

       In September 2001, plaintiff, Myriam Velez, filed suit against Detroit Receiving

Hospital, Harper Hospital, and Drs. Lawrence Schwartz and Martin Tuma, alleging that

their failure to timely operate on her leg necessitated its amputation below the knee.

After plaintiff filed her notice of intent to sue, the hospitals entered into a settlement

agreement with plaintiff in which those defendants paid plaintiff a total of $195,000.

After the settlement, plaintiff’s lawsuit was dismissed by stipulation but without

prejudice with respect to Tuma, who was not a part of the settlement agreement.

       Plaintiff then filed a new complaint against defendant Tuma in January 2004,

raising the same allegations against defendant.2 After a four-day jury trial, the jury found

defendant to be professionally negligent and returned a $1,524,831.86 verdict in

plaintiff’s favor.   As required by MCL 600.1483(2), the jury itemized the verdict,

separating it into past and future economic and noneconomic damages. The jury awarded

plaintiff a total of $124,831.86 in economic damages and a total of $1.4 million in

noneconomic damages.3




2
  Throughout the rest of this opinion, “defendant” refers to Tuma only, while
“codefedants” refers to the hospital defendants that settled with plaintiff.
3
  MCL 600.1483(3) defines “noneconomic loss” as “damages or loss due to pain,
suffering, inconvenience, physical impairment, physical disfigurement, or other
noneconomic loss.”



                                             3
        Before the circuit court entered a final judgment in plaintiff’s favor, defendant

requested that the circuit court apply the noneconomic damages cap to the jury’s verdict

and then subtract codefendants’ $195,000 settlement from the final judgment. Plaintiff

objected, relying on Markley, and argued that the circuit court was required to subtract

codefendants’ settlement from the jury’s unadjusted “verdict.”4 The circuit court denied

defendant’s request, citing Markley for the proposition that codefendants’ settlement had

to be applied to the jury’s unadjusted “verdict,” as opposed to the “judgment.” The court

agreed with plaintiff’s interpretation of Markley:

              The question to the Court is whether or not I believe that
        Markley . . . stand[s] for the proposition that the verdict is subject to the set
        off. Or whether the judgment is subject to the set off.

               The Court believes that Markley says verdict. I don’t know what
        they meant, but I’ll take it literally and we will apply it to the verdict. I will
        absolutely concur that that will result in a plaintiff receiving more money
        than the cap amount.

        Thereafter, the circuit court entered a judgment awarding plaintiff $394,200,

which is the amount of the noneconomic damages cap in this case.5 To calculate this

amount, the circuit court first subtracted codefendants’ $195,000 settlement from the

jury’s total unadjusted verdict of $1,524,831. Because plaintiff’s economic damages had

been satisfied through collateral sources, the circuit court applied the collateral source




4
    Markley, 255 Mich App at 250-251.
5
  There is no dispute between the parties that plaintiff’s noneconomic damages are
capped at $394,200.



                                                4
rule and reduced plaintiff’s economic damages to zero.6 Finally, the circuit court reduced

the remaining noneconomic damages to the amount of the statutory cap on noneconomic

damages, $394,200. The circuit court entered a final judgment for plaintiff in this

amount.7 Including the prior settlement amount, plaintiff’s total recovery was $589,200.

         In the Court of Appeals, defendant argued that the circuit court had erred by

applying the setoff to the jury’s unadjusted verdict rather than to the amount of the final

judgment after applying the noneconomic damages cap. The Court of Appeals, however,

affirmed the circuit court’s decision to apply the setoff to the unadjusted verdict.8 The

6
  In medical malpractice cases, the collateral source rule requires a circuit court to reduce
a jury’s award of economic damages by the amount already paid by collateral sources,
such as insurers or other providers. MCL 600.6303. There is no dispute that plaintiff’s
total economic damages are eliminated by the collateral source rule because plaintiff has
received, and will continue to receive, supplemental security income benefits from the
Social Security Administration.
7
    The circuit court’s calculation can be demonstrated as follows:

                     Total Jury Verdict                $1,524,831.86

                      Settlement Setoff                  - $195,000

                       Post Setoff Verdict             $1,329,831.86

                                                   $0 due to reduction for
                     Economic Damages
                                                     collateral sources
                                               $394,200 due to statutory cap
                   Noneconomic Damages
                                                on noneconomic damages

                      Final Judgment                     $394,200


8
    Velez v Tuma, 283 Mich App 396; 770 NW2d 89 (2009).



                                               5
Court first reasoned that the common-law setoff rule remained applicable in medical

malpractice cases involving joint and several tortfeasors and that the rule should be

applied so that a plaintiff will not be overcompensated for his or her actual loss. Turning

to the question whether the setoff is to be applied to a jury’s verdict or the final judgment

after application of the noneconomic damages cap, the appeals panel could “discern no

reason why the same principles that applied to the [now repealed] statutory right to

setoffs [wherein prior settlements were set off against the verdict] should not apply to the

common-law right to setoffs . . . .”9      Without addressing the language of the statute

capping noneconomic damages, the Court of Appeals reasoned that “[i]n cases where

joint and several liability is imposed, the trier of fact’s determination of damages sets the

limit regarding the amount a plaintiff can recover for his or her loss.”10 The Court thus

concluded “that the application of the setoff rule to the jury verdict [which comprises a

plaintiff’s actual loss], rather than the final judgment, is proper.”11

           Defendant applied for leave to appeal in this Court, and plaintiff filed a cross-

appeal. Initially, we denied both applications,12 but we later granted defendant’s motion

for reconsideration and granted leave to appeal, limited to the issue “whether the Court of

Appeals correctly held that the setoff amount in this case was properly set off against the

9
    Id. at 412.
10
     Id. at 413.
11
     Id.
12
  Velez v Tuma, 488 Mich 903 (2010). Before our initial denial, we had held the case in
abeyance for the resolution of issues not involved in this appeal. Velez v Tuma, 775
NW2d 146 (Mich, 2009).



                                               6
jury verdict, before application of the noneconomic damages cap of MCL 600.1483 and

calculation of the final judgment.”13 After hearing oral argument on that limited issue,

we sua sponte reconsidered plaintiff’s cross-application and granted leave to cross-appeal

to consider “whether Markley . . . correctly decided that the common-law setoff rule

applies in medical malpractice actions where joint and several liability is imposed.”14

                                II. STANDARD OF REVIEW

           The questions presented in these appeals are questions of law that we review de

novo.15 To the extent we must interpret the meaning of applicable statutes, our review is

also de novo.16

                   III. EXISTENCE OF COMMON-LAW SETOFF RULE

           Plaintiff argues that the Legislature abrogated the common-law setoff rule and

thus any setoff of codefendants’ settlement award is not warranted. In support, plaintiff

posits that in 1995 PA 161, the Legislature clearly intended to abrogate the common-law

rule when it repealed former MCL 600.2925d(b), as added by 1974 PA 318, which had

codified the setoff rule and provided that a settlement “reduces the claim against the other

tort-feasors to the extent of any amount stipulated by the release . . . .”



13
   Velez v Tuma (On Reconsideration), 489 Mich 956 (2011). With respect to
defendant’s remaining issue, leave to appeal is denied, because we are not persuaded that
the question presented should be reviewed by the Court.
14
     Velez v Tuma, 491 Mich 873 (2012).
15
     Kaiser v Allen, 480 Mich 31, 35; 746 NW2d 92 (2008).
16
     Id.



                                               7
           The common law remains in force until “changed, amended or repealed.”17

Whether the Legislature has abrogated, amended, or preempted the common law is a

question of legislative intent.18 We will not lightly presume that the Legislature has

abrogated the common law.19        Nor will we will extend a statute by implication to

abrogate established rules of common law.20 “Rather, the Legislature ‘should speak in no

uncertain terms’ when it exercises its authority to modify the common law.”21

           We cannot conclude that the Legislature intended to abolish the common-law

setoff rule in the context of joint and several liability medical malpractice cases. While

the pertinent statutes are silent with respect to the application of the common-law setoff

rule, we cannot agree with plaintiff that the repeal of the statutory setoff, former MCL

600.2925d(b), by 1995 PA 161 demonstrates a clear intent to abrogate the common-law

rule. Plaintiff’s argument ignores the fact that the repeal of former MCL 600.2925d(b)

was but one part of comprehensive tort-reform legislation and that there is no conflict

between the common-law rule and the current legislation that would prevent the setoff’s

application. Those 1995 reforms abolished joint and several liability in most contexts


17
     Const 1963, art 3, § 7.
18
     Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 750 (2006).
19
     Id.
20
  Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 507-508; 309 NW2d
163 (1981).
21
  Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780 NW2d 272 (2010),
quoting Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340
(2006).



                                            8
and created an allocation-of-fault system in which each tortfeasor is liable only for the

portion of the total damages that reflects that tortfeasor’s percentage of fault.22 Because a

system of several liability already incorporates the fault of all tortfeasors in establishing

every individual tortfeasor’s proportion of fault, there is no danger that the plaintiff will

be overcompensated for the injury by the failure to set off the amount of another

tortfeasor’s settlement.

       The same comprehensive tort-reform legislation, however, also specifically

retained “joint and several liability” in medical malpractice cases under MCL

600.6304(6)(a) where, as in the present case, the plaintiff is determined to be without

fault.23 For reasons we explain, the Legislature’s unambiguous intent to maintain joint

and several liability in this context also evinces a clear intent to retain the common-law

setoff rule in joint and several liability medical malpractice cases.

       The term “joint and several” liability, as used in MCL 600.6304(6)(a), is a technical

legal term. It has a long-acquired meaning that is well established in our jurisprudence:

“[]Where multiple tortfeasors caused a single or indivisible injury, the injured party

[may] either sue all tortfeasors jointly or he [may] sue any individual tortfeasor severally,

and each individual tortfeasor [is] liable for the entire judgment . . . .”24 Consistent with

22
   1995 PA 161 added MCL 600.2956 to the Revised Judicature Act to provide that “the
liability of each defendant for damages is several only and is not joint.”
23
  MCL 600.6304(6)(a) states that “joint and several” liability applies to a medical
malpractice claim as long as the plaintiff is determined to be without fault.
24
   Gerling Konzern Allgemeine Versicherungs AG v Lawson, 472 Mich 44, 49; 693
NW2d 149 (2005); see also Maddux v Donaldson, 362 Mich 425, 433; 108 NW2d 33
(1961); Verhoeks v Gillivan, 244 Mich 367, 371; 221 NW 287 (1928).



                                              9
our rules of construction, “technical words and phrases, and such as may have acquired a

peculiar and appropriate meaning in the law, shall be construed and understood according

to such peculiar and appropriate meaning.”25 The Legislature’s use of the term “joint and

several” liability, therefore, indicates a plain intent to adopt that term’s technical legal

meaning.

        Inherent in the meaning of joint and several liability is the concept that a plaintiff’s

recovery is limited to one compensation for the single injury.26            Because in some

instances a jointly and severally liable tortfeasor settles before trial, the common-law

setoff rule is necessary to ensure that the plaintiff does not recover more than a single

recovery for the single injury.      The common-law setoff rule entitles the remaining

tortfeasors, who are still liable for the entire injury, to set off the amount of the

cotortfeasor’s settlement from any verdict rendered against them.27 By reiterating that

liability in most medical malpractice cases is joint and several, the Legislature thus

retained the common-law setoff rule. When understood in this way, the purpose of the

25
     MCL 8.3a.
26
   Lawson, 472 Mich at 49 (“[Under principles of joint and several liability,] each
individual tortfeasor was liable for the entire judgment, although the injured party was
entitled to full compensation only once.”); Verhoeks, 244 Mich at 371 (“‘The injured
party has the right to pursue [tortfeasors] jointly or severally at his election, and recover
separate judgments; but, the injury being single, he may recover but one
compensation.’”) (citation omitted).
27
  Thick v Lapeer Metal Prod, 419 Mich 342, 348 n 1; 353 NW2d 464 (1984) (“[W]here
a negligence action is brought against joint tortfeasors, and one alleged tortfeasor agrees
to settle his potential liability by paying a lump sum in exchange for a release, and a
judgment is subsequently entered against the non-settling tortfeasor, the judgment is
reduced pro tanto by the settlement amount.”).



                                               10
Legislature’s repeal of the statutory setoff was not to abrogate the common-law setoff

rule, but to acknowledge that a setoff does not apply in actions that involve several

liability only.

         The Court of Appeals decision in Markley is consistent with this reasoning.

There, the defendant sought a setoff against a jury verdict in the amount of the joint

codefendant’s settlement. The Court of Appeals rejected the circuit court’s reasoning

that the Legislature’s repeal of former MCL 600.2925d(b) was intended to abrogate any

common-law right to a setoff. Instead, the appeals court reasoned:

                 [I]t is logical to conclude that common-law setoff in joint and
         several liability cases remained the law, where the new legislation was
         silent, where application of the common-law rule does not conflict with any
         current statutes concerning tort law, and where a plaintiff is conceivably
         overcompensated for its injury should the rule not be applied. Considering
         the general nature and tone of tort reform legislation, we conclude that the
         Legislature did not intend to allow recovery greater than the actual loss in
         joint and several liability cases when it deleted the relevant portion of
         [MCL 600.2925d], but instead intended that common-law principles
         limiting a recovery to the actual loss would remain intact.[28]

Thus, the Court of Appeals held that “the principle of one recovery and the common-law

rule of setoff, in the context of joint and several liability cases, continue to be the law in

Michigan.”29



28
     Markley, 255 Mich App at 256-257.
29
   Id. at 257. We disagree with plaintiff’s characterization of Markley as “reviving” the
common-law setoff rule. To the contrary, Markley’s reasoning, in our understanding, is
consistent with our reasoning that the Legislature intended to preserve setoffs of a joint
tortfeasor’s settlement because the Legislature expressly retained joint and several
liability in the medical malpractice context.



                                             11
          After Markley, this Court in Kaiser v Allen30 considered whether principles of joint

and several liability and the common-law setoff rule applied in vehicle-owner vicarious-

liability cases. After the jury returned a verdict in the plaintiff’s favor, the defendant

sought a setoff in the amount of his codefendant’s settlement, which would reduce the

plaintiff’s award to zero. Because there can be no allocation of fault in vicarious-liability

cases and there exists no amount of damages that belong to the vehicle owner separately

from the negligent operator, we held that “[t]he tort-reform statutes do not apply to . . .

vehicle-owner vicarious-liability cases . . . .     Therefore, the common-law setoff rule

remains the law in Michigan for vehicle-owner vicarious-liability cases.”31

          While the present case is factually dissimilar from Kaiser, the principles espoused

in Kaiser nonetheless support our interpretation of the tort-reform statutes; mainly, that

where the Legislature has retained joint and several liability, the common-law setoff rule

remains intact. Indeed, as the Court of Appeals acknowledged in Markley, we are aware

of no conflicting provision that would prevent the setoff’s application, and plaintiff has

identified none. Given our reasoning and our decision in Kaiser, we cannot hold that

Markley was wrongly decided, as plaintiff urges.            Accordingly, we hold that the

common-law setoff rule remains the law in joint and several liability medical malpractice

cases.      We further clarify, consistent with our decision in Kaiser, that where the

Legislature has specifically retained the technical common-law term “joint and several

liability,” the common-law setoff rule remains applicable.

30
     Kaiser, 480 Mich 31.
31
     Id. at 36.



                                               12
                 IV. APPLICATION OF COMMON-LAW SETOFF RULE

         Our conclusion that the common-law setoff rule remains applicable in joint and

several liability cases does not end our analysis. Rather, we must address the issue of the

sequence in which to apply the common-law setoff rule and the statutory cap on

noneconomic damages to the jury’s verdict. We therefore examine the interplay between

the common-law rule and MCL 600.1483. We are cognizant that we are the stewards of

the common law and that the Legislature is presumed to be aware of the common law

when enacting legislation.32      Our function in construing statutory language is to

effectuate the Legislature’s intent.33 Plain and clear language is the best indicator of that

intent, and such statutory language must be enforced as written.34 Further, a statute in

derogation of the common law will not be construed to abrogate the common law by

implication, but if there is any doubt, the statute is to be given the effect that makes the

least change in the common law.35

         We agree with defendant that the lower courts erred by applying the setoff before

applying the noneconomic damages cap, thereby allowing plaintiff to recover a total

judgment beyond what Michigan law permits. While the Court of Appeals properly

recognized that the common-law setoff rule applies in this case and is necessary to ensure


32
  Henry v Dow Chem Co, 473 Mich 63, 83; 701 NW2d 684 (2005); Nation v W D E
Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997).
33
     Nation, 454 Mich at 494.
34
     Driver v Naini, 490 Mich 239, 247 n 24; 802 NW2d 311 (2011).
35
     Nation, 454 Mich at 494.



                                             13
that a plaintiff is not overcompensated for his or her injury, the Court erred by failing to

address how the mandatory limitation on noneconomic damages affects application of the

setoff.

          As noted, MCL 600.1483(1) limits a plaintiff’s damages for “noneconomic losses

recoverable” and provides, in part:

                In an action for damages alleging medical malpractice by or against
          a person or party, the total amount of damages for noneconomic loss
          recoverable by all plaintiffs, resulting from the negligence of all
          defendants, shall not exceed $[394,200] . . . .[36]

This language mandates an absolute cap on all available noneconomic losses: a medical

malpractice plaintiff’s “total amount” of noneconomic damages “recoverable” “shall not

exceed” the statutory cap. Use of the term “recoverable,” giving it its plain meaning,

denotes noneconomic losses that are capable of being recovered, which necessarily

includes recovery through settlements, jury verdicts, or arbitration.37 Because the term

“total” modifies “amount of damages for noneconomic loss recoverable,” it makes clear

that all such sums recovered “shall not exceed” the cap. The Legislature, through the

unambiguous language of MCL 600.1483(1), has then determined that a plaintiff’s actual

36
  Emphasis added. Although there is no dispute regarding the cap amount in this case,
the amount of the cap is adjustable “at the end of each calendar year to reflect the
cumulative annual percentage change in the consumer price index.” MCL 600.1483(4).
37
  In the absence of a statutory definition, we may rely on dictionary definitions. Cox v
Flint Bd of Hosp Managers, 467 Mich 1, 18; 651 NW2d 356 (2002). Black’s Law
Dictionary (9th ed) broadly defines “recoverable” to mean “[c]apable of being
recovered.” Justice HATHAWAY, however, claims that we have added language to MCL
600.1483 because the provision “makes no reference to settlements at all.” Post at 9.
This interpretation ignores entirely the breadth of the definition of the term
“recoverable.”



                                             14
loss—and thus full compensation—for noneconomic losses caused by the single injury

may be less than what a jury awards and may not in total exceed the statutory limit.38

       Despite the unequivocal language of MCL 600.1483 limiting noneconomic

damages, the statute is silent with respect to when the cap is to be applied both generally

and in relation to the common-law setoff.39 And while the common-law setoff rule is

38
   Justice HATHAWAY mischaracterizes MCL 600.1483, and other provisions limiting
damages, as measures that “preclude a plaintiff from receiving overcompensation,” post
at 5, and opines that a “court must determine whether the plaintiff is being
overcompensated,” post at 6. As we have explained, however, by automatically limiting
a verdict of noneconomic damages to the amount of the cap, MCL 600.1483 sets the total
amount of compensation allowed. Because the cap represents a predetermined legislative
policy limitation on a plaintiff’s total compensation for noneconomic injuries, it forms
the basis of determining to what extent a recovery for noneconomic damages necessarily
represents overcompensation, and a court cannot exceed that predetermined limitation on
compensation.
39
   MCL 600.6306 directs a trial court to make certain deductions from a jury’s award of
damages before entering a final judgment, but it does not provide guidance with respect
to application of the cap or the common-law setoff rule. MCL 600.6306 states in relevant
part:

              (1) After a verdict rendered by a trier of fact in favor of a plaintiff,
       an order of judgment shall be entered by the court. Subject to [MCL
       600.2959], the order of judgment shall be entered against each defendant,
       including a third-party defendant, in the following order and in the
       following judgment amounts:

             (a) All past economic damages, less collateral source payments as
       provided for in [MCL 600.6303].

              (b) All past noneconomic damages.

              (c) All future economic damages, less medical and other health care
       costs, and less collateral source payments determined to be collectible
       under [MCL 600.6303(5)] reduced to gross present cash value.

              (d) All future medical and other health care costs reduced to gross
       present cash value.



                                             15
traditionally applied to a jury’s verdict, we do not view the statutory silence or the

traditional application of the common-law setoff to be dispositive of the sequencing

issue. Rather, the clear legislative directive of MCL 600.1483, when considered in

juxtaposition with the purpose of the common-law setoff rule, provides the necessary

guidance. Because a medical malpractice plaintiff cannot by operation of law recover

more noneconomic damages than the statutory limit, it follows that a plaintiff’s full

recovery of noneconomic losses for the single injury—assuming the jury verdict exceeds

the cap—is legislatively predetermined to be limited to the statutory amount.        If a

plaintiff has been partially compensated through a prior settlement from a jointly and

severally liable tortfeasor, then the common-law setoff rule, consistent with its purpose

and the statute, must be applied to ensure that the plaintiff is not compensated beyond

statutorily permissible limits. To achieve this result, the settlement must be subtracted

from a jury verdict after application of the noneconomic damages cap, as well as the

collateral source rule; otherwise, the plaintiff could recover more than his or her full

compensation, that is, the plaintiff could recover the settlement amount, plus the amount

of the cap and the amount of statutorily permissible economic damages, if any.40


               (e) All future noneconomic damages reduced to gross present cash
      value.
40
   Justice HATHAWAY contends that our application of the setoff creates a “new rule that
bears little resemblance to the common-law setoff rule or its underlying purpose,” post
at 8, and that our failure to recognize the verdict as the measure of full compensation
“disregards the obvious,” post at 7. However, before the Legislature’s creation of the cap
on noneconomic damages, there was no need for the common law to make the distinction
that we recognize. We have not, therefore, ignored that the setoff has traditionally been
applied to the verdict. Rather, consistent with our jurisprudence, we have applied both
the common-law rule and the statute in the manner that best gives effect to the purposes


                                           16
       Yet this is exactly what the lower courts did in this case. Neither the circuit court

nor the Court of Appeals recognized that the Legislature has statutorily limited a medical

malpractice plaintiff’s recovery and that a setoff must be applied to ensure that the

plaintiff does not recover an amount more than that which the Legislature has fixed by

statute. Instead, the lower courts ignored the mandate of MCL 600.1483 and measured

plaintiff’s “actual loss,” or full compensation, as the jury’s verdict. This erroneous

reasoning led to the legally incorrect conclusion that plaintiff’s recovery for her single

injury could not exceed the amount of the verdict, thereby justifying a setoff from the

jury’s verdict, rather than the judgment, after application of the noneconomic cap and

collateral source rule. By applying the setoff directly to the unadjusted verdict, the lower

courts thus subverted both the clear directive of MCL 600.1483—that medical

malpractice plaintiffs not recover noneconomic losses beyond the legislatively

determined amount—and the purpose of the common-law setoff rule—to ensure that

overcompensation does not occur. Under the lower courts’ application of the cap and

common-law setoff rule, plaintiff recovered $195,000 more than her actual loss as

determined by the Legislature. Because plaintiff’s economic losses were zero, because of

collateral sources, the remaining final judgment of $394,200 after the cap was necessarily

composed of only noneconomic losses.             Plaintiff’s total recovery from all joint


of both. See, e.g., People v Nowack, 462 Mich 392, 406; 614 NW2d 78 (2000) (noting
that the common law is adopted into our jurisprudence to the extent that it is consistent
with our state and federal constitutions and statutes). Consequently, it is the dissent’s
interpretation that fails to effectuate both the purpose of the statute and the common-law
rule because, as the dissent does not dispute, its interpretation would allow a medical
malpractice plaintiff to recover more than the statutorily limited amount.



                                            17
tortfeasors, however, was $589,200—which is $195,000 more than that allowed by the

collateral source rule and the cap on noneconomic damages.

         Plaintiff would have us affirm the lower courts’ erroneous application of the cap

and rule, but her argument fails due to similar shortcomings. Like the Court of Appeals,

plaintiff and Justice HATHAWAY’s dissent assert that the measure of her actual losses for

purposes of the setoff is the jury’s verdict and that she can only be overcompensated for

purposes of the common-law setoff rule if she receives more than the jury’s verdict.

Plaintiff cites both Kaiser and Markley for the proposition that the unadjusted jury verdict

is the measure of the one full recovery to which plaintiff is entitled, but these cases are

simply inapposite. Kaiser involved a vehicle owner’s vicarious liability for those who

drive the owner’s vehicle, and there is no similar damages cap in the context of vehicle-

owner vicarious-liability cases. It was not necessary for Kaiser to address the interaction

between a statutory limitation on damages and the common-law setoff and, thus,

distinguish between “judgments” and “jury verdicts” as the measure of the one full

recovery to which a plaintiff is entitled.     Markley also does not support plaintiff’s

position. Indeed, Markley itself acknowledged that “there [was] no reason to address the

damage cap” when applying the setoff rule.41 Like in Kaiser, it was unnecessary for

Markley to distinguish between “judgments” and “jury verdicts” as the measure of actual

loss. Plaintiff also cites our decision in Rittenhouse v Erhart42 for the same proposition,



41
     Markley, 255 Mich App at 258.
42
     Rittenhouse v Erhart, 424 Mich 166; 380 NW2d 440 (1985).



                                             18
but Rittenhouse is likewise unhelpful because it did not address the interaction between

the damages cap and the common-law setoff rule.43

      Accordingly, we hold that where principles of joint and several liability apply in a

medical malpractice case and a codefendant has settled a plaintiff’s claim before trial, a

circuit court must first apply to the jury’s verdict the noneconomic damages cap, as well

as any other statutorily required adjustments, before reducing the award by the amount of

the codefendant’s settlement. Here, plaintiff received a settlement from codefendants in

the amount of $195,000. At a later trial against defendant, the jury returned a verdict for

43
   As additional support, plaintiff and Justice HATHAWAY argue that MCL 600.1483 does
not limit the total amount of noneconomic damages plaintiff may recover because MCL
600.1483(1) only applies to jury awards, not settlements. Specifically, the dissent posits
that MCL 600.1483(1) applies only to jury awards because the language of MCL
600.1483(2), which requires juries “awarding damages” to “itemize damages,” refers
only to jury awards. This conclusion does not logically follow when the subsections are
read together because MCL 600.1483(1) makes no reference to a jury award, but uses the
broader phrase “the total amount of damages for noneconomic loss recoverable . . . .”
Justice HATHAWAY further asserts that the Legislature only intended jury awards, not
settlements, to be reduced by the noneconomic damages cap because MCL 600.6304(5)
is silent with respect to any reduction by reason of a settlement. Post at 10. That
provision requires a circuit court to reduce an excessive “award of damages” to the
amount of the noneconomic damages cap. This silence, however, does not preclude a
court from applying the common-law setoff rule after applying the noneconomic
damages cap to the jury verdict. Finally, these arguments are unavailing because to
interpret the noneconomic damages cap as applying only to jury awards and not
settlements would render nugatory the term “recoverable” in MCL 600.1483(1), which as
we have explained does not delimit the manner in which recovery is obtained. Plaintiff
and the dissent’s construction is one we cannot adopt because we “‘must give effect to
every word, phrase, and clause in a statute and avoid an interpretation that would render
any part of the statute . . . nugatory.’” Jenkins v Patel, 471 Mich 158, 167; 684 NW2d
346 (2004) (citation omitted). Justice HATHAWAY, like plaintiff, simply neglects to
consider that the Legislature did not intend a plaintiff to recover noneconomic damages
greater than that allowed by the statute and that plaintiff’s recovery of noneconomic
damages is, in effect, set by law.




                                            19
plaintiff for $1,524,831.86. Given our holding, it was error for the lower courts to apply

the setoff against the jury’s verdict. Rather, the proper order of operation was to first

apply both the collateral source rule and the noneconomic damages cap to arrive at the

final judgment, which is plaintiff’s full compensation for her injury as determined by the

Legislature.44 Because plaintiff has already received partial compensation for that injury,

application of the common-law setoff rule requires that codefendants’ settlement be

subtracted from the final judgment so that plaintiff does not receive more than a single




44
   Justice CAVANAGH criticizes this application of the setoff rule because it “provides
defendants with both the benefit of the damages cap and the further reduction of the
common-law setoff.” Post at 2. Yet this result is exactly what we intend because it is
also what the Legislature intends. Had the Legislature intended to preclude this result
from inuring to the benefit of a medical malpractice defendant, it could have used a
phrase less broad than “total amount of damages for noneconomic loss recoverable” in
MCL 600.1483(1) or otherwise prohibited any application of the setoff rule.



                                            20
recovery for her single injury.45 Consequently, plaintiff is entitled to a judgment against

defendant in the amount of $199,200.46

         This result and our holding are in accord with decisions of other jurisdictions with

similar damages-cap statutes. In Fairfax Hosp Sys, Inc v Nevitt,47 the Virginia Supreme

45
   By allegedly reducing plaintiff’s “noneconomic damages award” by the amount of the
settlement, Justice HATHAWAY is concerned that our decision has assumed that the
settlement proceeds consisted of noneconomic damages and that this result “ignores the
actual agreement of the settling parties.” Post at 12. These concerns are unfounded. Our
holding does not require the reduction of plaintiff’s noneconomic damages by the amount
of the settlement. Rather, our holding requires a court to subtract the entire amount of the
settlement from whatever damages remain after applying the relevant statutory
adjustments. Nor have we assumed that the settlement in this case was composed solely
of noneconomic damages. Indeed, as the dissent admits, the settlement was an aggregate
award for all the damages, including economic and noneconomic damages, costs,
attorney fees, and interest. As an aggregate award, subtraction of the settlement from the
adjusted verdict in this case does not alter the terms of the settling parties’ agreement.
While collateral sources that exist in this case happened to reduce the economic damages
to zero, the order-of-operations rule that we establish today applies to all adjusted
verdicts, whether they contain only economic damages, only noneconomic damages, or
some combination thereof.
46
     This equation can be summarized as follows:

                 Total Jury Verdict                           $1,524,831.86
                                                      $124,831.86, reduced to $0 by
                Economic Damages
                                                            collateral sources
                                                   $1,400,000, reduced to $394,200 due
              Noneconomic Damages
                                                     to cap on noneconomic damages
                 Settlement Setoff                              - $195,000

                  Final Judgment                                $199,200


47
  Fairfax Hosp Sys, Inc v Nevitt, 249 Va 591, 599; 457 SE2d 10 (1995) (citation
omitted).



                                              21
Court ruled that the $1 million cap on medical malpractice damages reduces a verdict

before any settlements are set off against it: “[W]here there is a verdict by a jury or a

judgment by a court against a health care provider for ‘injury to . . . a patient’ and the

total amount recovered in that action and in all settlements related to the medical

malpractice injury exceeds one million dollars, the total amount the plaintiff can recover

for that injury is one million dollars.” Similarly, in Lockshin v Semsker,48 the Maryland

Court of Appeals ruled that “any verdict rendered by a jury exceeding the amount of the

non-economic damages cap inherently is a verdict in the amount of the cap from the

moment it is rendered.” The court therefore concluded that “the appropriate order of

operations is to apply first the cap to the jury’s verdict for non-economic damages,

followed by a credit for the joint tortfeasor settlement.”49

         Plaintiff criticizes this position and claims that it requires the itemization of

settlements. Plaintiff’s position actually causes this perceived harm, however. When a

judgment contains both economic and noneconomic damages, a circuit court applying the

48
     Lockshin v Semsker, 412 Md 257, 283; 987 A2d 18 (2010).
49
   Id. Numerous other jurisdictions have also required application of noneconomic
damages caps before setting off a settlement so that plaintiffs do not recover more
damages than permitted by the applicable law. See Mayes v Bryan, 139 Cal App 4th
1075, 1099-1103; 44 Cal Rptr 3d 14 (2006) (holding that the trial court properly applied
the noneconomic damages cap, Cal Civ Code 3333.2, first before reducing the judgment
by the percentage of fault attributed to the settlement the plaintiff had already recovered
because “the plaintiff could not recover more than $ 250,000 in noneconomic damages
from all health care providers for one injury,”); Garhart v Columbia/Healthone, LLC, 95
P3d 571, 591 (Colo, 2004) (holding that noneconomic damages cap allowing a total
recovery of $250,000, Colo Rev Stat 13-64-302, must be applied to a jury’s verdict first
before allocating fault attributed to a settlement, so that the plaintiff does not recover
more than the cap).



                                              22
setoff to the jury’s verdict before application of the collateral source rule would have to

determine how to allocate the settlement between economic and noneconomic damages.

This is a result we cannot condone, not only because it can result in an outcome contrary

to the mandate of MCL 600.1483, but also because it could discourage settlements in

instances in which there are multiple related defendants.50 Additionally, in instances like

the present, in which the composition of the settlement is unknown, circuit courts would

be left to guess at how a settlement should be allocated. Requiring circuit courts to

engage in this guesswork, from which a range of potential outcomes could result,

unreasonably burdens them with a determination that they are, in the absence of any

statutory guidance, ill-prepared to make. Our holding, on the other hand, that a circuit

court must subtract the total settlement from the final judgment, creates no need to

allocate the settlement proceeds between economic or noneconomic damages before

applying the setoff. Rather, the settlement is treated as an aggregate award to be applied

against the plaintiff’s total actual loss, meaning the final judgment after application of the

applicable statutory adjustments.

                                    V. CONCLUSION

       To the extent the Legislature has not abolished principles of joint and several

liability, those principles and the common-law setoff rule remain the law in Michigan.



50
    Under plaintiff’s rule, medical malpractice plaintiffs would have an incentive to
structure settlement agreements as entirely economic damages, especially when the
plaintiff expects collateral sources to wipe out all economic damages. The settling
codefendants, however, might be unwilling to enter into such an agreement, knowing that
it could potentially prejudice their associates and potentially sour business relationships.



                                             23
Markley reached this same conclusion, and we decline plaintiff’s invitation to conclude

that Markley was wrongly decided. Further, when joint and several liability principles

apply in medical malpractice cases, any settlement must be set off from the final

judgment after application of the noneconomic damages cap and the collateral source

rule. The lower courts erroneously set off codefendants’ settlement against the jury’s

verdict, which resulted in plaintiff receiving $195,000 more for her injury than permitted

by law.    Accordingly, we reverse the portion of the Court of Appeals’ judgment

upholding the circuit court’s application of the common-law setoff rule and remand to the

circuit court for entry of an order reducing the final judgment by $195,000.


                                                 Mary Beth Kelly
                                                 Robert P. Young, Jr.
                                                 Stephen J. Markman (except for the
                                                       fourth sentence of the first
                                                       paragraph on page 8)
                                                 Brian K. Zahra




                                            24
                            STATE OF MICHIGAN

                                  SUPREME COURT


MYRIAM VELEZ,

             Plaintiff-Appellee/Cross-
             Appellant,

v                                                           No. 138952

MARTIN TUMA, M.D.,

             Defendant-Appellant/Cross-
             Appellee.


MARKMAN, J. (concurring).
      I concur in the majority opinion with the exception of the majority’s statement that

“we will [not] extend a statute by implication to abrogate established rules of common

law.” Ante at 8. I do believe that a statute may by implication abrogate established rules

of common law. That is, the Legislature does not have to explicitly state that it is

abrogating a common-law right in order for it to abrogate a common-law right. The

Legislature’s intent to abrogate the common law may be sufficiently clear without its

having to explicitly state that this is its intent. A legislative body need not provide a

running commentary of the effect of its actions on the common law when its actions will

admit of only the most obvious interpretation. The statement is unnecessary to the

opinion, and no injury would be done to the opinion were it not there. I join the majority

because I believe the Legislature has not, either expressly or implicitly, abrogated the
common-law setoff rule in the context of joint and several liability medical malpractice

cases.




                                                      Stephen J. Markman




                                           2
                             STATE OF MICHIGAN

                                   SUPREME COURT


MYRIAM VELEZ,

               Plaintiff-Appellee/Cross-
               Appellant,

v                                                           No. 138952

MARTIN TUMA, M.D.,

               Defendant-Appellant/Cross-
               Appellee.


CAVANAGH, J. (concurring in part and dissenting in part).
        I agree with both the majority and dissenting opinions that the common-law setoff

rule applies in the context of joint and several liability medical malpractice cases. There

is no indication that the Legislature intended to abrogate the common-law setoff rule

when it eliminated the statutory setoff rule in MCL 600.2925d(b).1 Contrary to plaintiff’s

argument, in the absence of clear legislative intent to abrogate the common law, “[t]he

repeal of a statute revives the common-law rule as it was before the statute was enacted.”

People v Reeves, 448 Mich 1, 8; 528 NW2d 160 (1995).

        I would, however, affirm the judgment of the Court of Appeals with respect to

how the common-law setoff rule should be applied because, in my view, the panel did not

clearly err by holding that the common-law setoff should be applied as it traditionally has



1
    Former MCL 600.2925d(b), as added by 1974 PA 318, was deleted by 1975 PA 161.
been—to the unadjusted jury verdict.      To apply the common-law setoff after the

operation of the medical malpractice noneconomic-damages cap provides defendants

with both the benefit of the damages cap and the further reduction of the common-law

setoff. I agree with Justice HATHAWAY that the jury verdict represents the total amount

of damages a plaintiff is entitled to recover and that applying the common-law setoff to

the unadjusted jury verdict before operation of the damages cap ensures that plaintiff is

not overcompensated for a single, indivisible injury. Further, applying the common-law

setoff to the unadjusted jury verdict does not impair the protections afforded to a

defendant by the medical malpractice damages cap, as the Legislature intended.


                                                      Michael F. Cavanagh
                                                      Marilyn Kelly




                                           2
                             STATE OF MICHIGAN

                                    SUPREME COURT


MYRIAM VELEZ,

              Plaintiff-Appellee/Cross-
              Appellant,

v                                                             No. 138952

MARTIN TUMA, M.D.,

              Defendant-Appellant/Cross-
              Appellee.


HATHAWAY, J. (dissenting).

       I generally agree with the majority that when a trier of fact determines that a

plaintiff in a medical malpractice case is not comparatively negligent, the common-law

setoff rule applies. However, I disagree with the manner in which the majority applies

this rule because it does so in a fashion that is contrary to the rule’s purpose. Because

today’s decision departs from the common-law setoff rule, I respectfully dissent.

       For many years, the rule in this state was that concurrent tortfeasors were held to

be jointly and severally liable. Joint and several liability operated to place the full burden

of the injustice on a tortfeasor, rather than on the injured party.1 When a defendant is

jointly and severally liable, that defendant is liable for all the injured party’s damages,



1
 See Maddux v Donaldson, 362 Mich 425, 432-434; 108 NW2d 33 (1961); Velez v
Tuma, 283 Mich App 396, 409; 770 NW2d 89 (2009); Bell v Ren-Pharm, Inc, 269 Mich
App 464, 471-472; 713 NW2d 285 (2006).
including damages for injury caused by a codefendant or a nonparty, in order to ensure

that an injured party is fully compensated.2

          A corollary of joint and several liability is the common-law setoff rule.3

Common-law setoff is grounded in the principle that an injured party is entitled to only

one recovery for a single, indivisible injury and precludes an injured party from receiving

a double recovery.4      Thus, historically, when an injured party suffered a single,

indivisible injury as a result of the negligent conduct of two or more tortfeasors, any

amount paid by a settling defendant was “set off” or subtracted from the verdict awarded

by the trier of fact.5 The common-law application of setoff carried out the purpose of the

rule: the injured party was fully compensated, but not overcompensated.6

          The common-law setoff rule was codified in former MCL 600.2925d by 1974 PA

318 and this statutory version of the setoff rule was applied in the same manner as it was

at common law in instances in which the defendants were jointly and severally liable.

However, statutory setoff was subsequently eliminated by 1995 PA 161, along with joint

and several liability for virtually all tort claims.7 Because no relevant statute currently

addresses setoff, the question arises whether the Legislature intended common-law setoff

2
    Id.
3
    Kaiser v Allen, 480 Mich 31, 41; 746 NW2d 92 (2008) (KELLY, J., concurring).
4
    See Larabell v Schuknecht, 308 Mich 419, 423; 14 NW2d 50 (1944).
5
    Id.
6
    Kaiser, 480 Mich at 39-40.
7
    MCL 600.2956.



                                               2
to apply to the limited categories of tort claims for which joint and several liability was

retained.8 Although factually dissimilar to this case, Kaiser v Allen, 480 Mich 31; 746

NW2d 92 (2008), provides guidance in answering this question.

         Kaiser addressed the issue of whether the common-law setoff rule applies to

claims against owners and operators of motor vehicles when vicarious liability is

statutorily imposed. In holding that the common-law setoff rule applies to such cases,

this Court explained:


                The common-law setoff rule is based on the principle that a plaintiff
         is only entitled to one full recovery for the same injury. An injured party
         has the right to pursue multiple tortfeasors jointly and severally and recover
         separate judgments; however, a single injury can lead to only a single
         compensation.

                 . . . Allowing plaintiff to recover the entire verdict against Allen
         [vehicle owner] and to retain all the proceeds from the settlement with [the
         vehicle’s operator] would allow the plaintiff to recover four times more
         than the jury determined plaintiff should be awarded for his injuries. The
         Legislature did not intend that a plaintiff be awarded damages greater than
         the actual loss in vicarious-liability cases, resulting in a double recovery.
         The common-law setoff rule should be applied to ensure that a plaintiff
         only recovers those damages to which he or she is entitled as compensation
         for the whole injury. . . .

                                            * * *

                 To the extent that joint and several liability principles have not been
         abrogated by statute, they remain intact, and the common-law setoff rule
         remains the law in Michigan with regard to vehicle-owner vicarious-
         liability cases.[9]

8
 See, for example, MCL 600.2956, which retains vicarious liability for employers, and
MCL 257.401(1), which retains vicarious liability for vehicle owners.
9
    Kaiser, 480 Mich at 39-40 (citation omitted).



                                               3
        Thus, Kaiser recognized that when a party suffers a single, indivisible injury as the

result of the conduct of multiple tortfeasors, the injured party is entitled to be made

whole. This means that the injured party is entitled to be fully compensated, but not

overcompensated. I see no reason why the principles set forth in Kaiser should not be

extended to the category of medical malpractice claims that also retain joint and several

liability.10

        Moreover, I believe that in Markley v Oak Health Care Investors of Coldwater,

Inc, 255 Mich App 245, 256-257; 660 NW2d 344 (2003), the Court of Appeals correctly

reasoned that

        [w]ith tort reform and the switch to several liability, it is logical to conclude
        that common-law setoff in joint and several liability cases remained the
        law . . . where application of the common-law rule does not conflict with
        any current statutes concerning tort law, and where a plaintiff is
        conceivably overcompensated for its injury should the rule not be applied.

Thus, Markley correctly held that in medical malpractice cases that retain joint and

several liability, the common-law setoff rule applies. However, with that said, if the

common-law setoff rule is to be imposed in the absence of statutory authority, it must be

applied in the same manner and for the same purpose as it was at common law.

Otherwise, the common-law setoff rule is not being applied; instead, an entirely new rule

is created.


10
  Medical malpractice claims are bifurcated into two categories on the basis of whether
the plaintiff is comparatively negligent. Under MCL 600.6304(6)(b), when a plaintiff is
comparatively negligent, joint and several liability has been abolished, and the
defendants’ liability is several. When a plaintiff is not comparatively negligent, joint and
several liability is imposed under MCL 600.6304(6)(a).



                                               4
         The undisputed historical purpose of the common-law setoff rule was to preclude a

plaintiff from being overcompensated for a single, indivisible injury.11 That is its only

goal. The common-law setoff rule accomplished this goal by subtracting any settlement

amount for that injury from the trier of fact’s determination of the entire amount of the

injured party’s damages.      When applying the common-law setoff rule to medical

malpractice cases under the current statutory scheme, the goal of preventing

overcompensation remains the same.

         In analyzing whether a medical malpractice plaintiff has been overcompensated,

we must be mindful of the so-called “tort reform” liability statutes that contain measures

to preclude a plaintiff from receiving overcompensation in many regards. For example,

the fact-finder is required to separate all economic damages from noneconomic ones,12

with future damages itemized on a year-by-year basis13 and any future damages reduced

to present cash value.14 Economic damages are subject to statutory setoff for payments

made by a collateral source.15 Payment for future damages exceeding $250,000 may be

satisfied by the purchase of an annuity contract.16 Noneconomic damages awarded at



11
     Kaiser, 480 Mich at 39-40.
12
     MCL 600.6305(1)(a) and (b).
13
     MCL 600.6305(1)(b).
14
     MCL 600.6306(1)(c).
15
     MCL 600.6303.
16
     MCL 600.6307.



                                             5
trial are subject to two different limitations based on the nature of the injury.17 Each of

these measures serves to reduce the amount that an injured party may ultimately receive

in a judgment entered as a result of a verdict rendered in his or her favor. These

measures greatly reduce the possibility that a medical malpractice plaintiff can be

overcompensated.

         To determine whether a medical malpractice plaintiff has actually been

overcompensated, a multistep analysis is required that considers all the principles

discussed above. The first step is to consider whether the plaintiff was comparatively

negligent. If the plaintiff was comparatively negligent, a defendant’s liability is several

and, as such, the defendant is only responsible for his or her pro rata share of the

plaintiff’s damages.18 In these instances, the issue of setoff is irrelevant because there is

no possibility of the plaintiff being overcompensated. On the other hand, if the jury

determines that the plaintiff was not comparatively negligent, the court must determine

whether the plaintiff is being overcompensated and, if so, the common-law setoff rule is

applicable. In these instances, after a verdict has been rendered, any settlement amounts

paid for damages arising from that single, indivisible injury must be set off in the same

manner and for the same purpose as at common law—to prevent overcompensation.

Thus, settlement amounts should be subtracted from the amount that the trier of fact




17
     MCL 600.1483.
18
     MCL 600.6304(6)(b).



                                             6
determines is the full amount that the plaintiff is entitled to recover so that the plaintiff is

made whole, but not overcompensated.19

       The majority opines that the verdict must first be reduced by the applicable

limitation on noneconomic damages;20 then, only after the verdict is reduced to that

amount, is any settlement set off or subtracted from the reduced award. Additionally,

under the majority’s analysis, the entire amount of the settlement proceeds must be set off

from the noneconomic-damages portion of the plaintiff’s adjusted net verdict, without

any consideration of whether all the settlement proceeds were intended to compensate the

plaintiff for noneconomic damages. I disagree with this analysis.

       The majority applies setoff in a manner that is at odds with the common-law rule,

which was used to prevent a plaintiff from receiving a double recovery or

overcompensation for a single, indivisible injury. The majority seemingly disregards the

obvious—the trier of fact determines the total amount of a plaintiff’s damages, and only

when a plaintiff receives more than that amount as compensation is the plaintiff

overcompensated. A plaintiff is not overcompensated when he or she receives less than

the trier of fact’s determination of the amount that is required to make him or her whole.

The goal of the common-law setoff rule is merely to prevent overcompensation; it is not

to further undercompensate the plaintiff.          Unfortunately, the majority’s method of


19
  As will be discussed, MCL 600.6305 requires damages to be separated into economic
and noneconomic damages and, accordingly, only amounts paid for like damages should
be set off.
20
  The limitations on damages contained in MCL 600.1483 are commonly referred to as
“caps” on noneconomic damages.



                                               7
applying this rule fails to achieve the goal of common-law setoff. While the majority

asserts that it is applying “common-law setoff,” it instead creates a new rule that bears

little resemblance to the common-law setoff rule or its underlying purpose.               It is

axiomatic that if a common-law rule is to be used, it should be applied in the manner and

for the purposes that it was intended at common law. To do otherwise defies logic and

does nothing more than judicially create a new rule in order to fill what the creator of the

new rule perceives to be a statutory void.

         The majority counters that its manner of applying the common-law setoff rule is

mandated by the language of MCL 600.1483(1), which sets forth the limitations on

damages.21 The majority claims that the limitations in this subsection preclude any


21
     The full text of MCL 600.1483 provides:

                (1) In an action for damages alleging medical malpractice by or
         against a person or party, the total amount of damages for noneconomic
         loss recoverable by all plaintiffs, resulting from the negligence of all
         defendants, shall not exceed $280,000.00 unless, as the result of the
         negligence of 1 or more of the defendants, 1 or more of the following
         exceptions apply as determined by the court pursuant to [MCL 600.6304],
         in which case damages for noneconomic loss shall not exceed $500,000.00:

                 (a) The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting
         in a total permanent functional loss of 1 or more limbs caused by 1 or more
         of the following:

                (i) Injury to the brain.

                (ii) Injury to the spinal cord.

                 (b) The plaintiff has permanently impaired cognitive capacity
         rendering him or her incapable of making independent, responsible life
         decisions and permanently incapable of independently performing the
         activities of normal, daily living.


                                                  8
recovery above that amount regardless of whether an award of damages by a trier of fact

is involved. I disagree. The majority reaches its conclusion by myopically focusing on a

few selected words of MCL 600.1483(1), rather than the entirety of that subsection, and

then adds language to that subsection that does not exist. It argues that because MCL

600.1483(1) uses the terms “total amount,” “recoverable,” and “shall not exceed,”

recoverable noneconomic losses “necessarily include[] recovery through settlements, jury

verdicts, or arbitration.”22 However, contrary to the majority’s position, subsection (1)

makes no reference to settlements at all. Moreover, when MCL 600.1483 is read as a

whole and in conjunction with MCL 600.6304, as was intended, it is clear from the text




                (c) There has been permanent loss of or damage to a reproductive
         organ resulting in the inability to procreate.

                 (2) In awarding damages in an action alleging medical malpractice,
         the trier of fact shall itemize damages into damages for economic loss and
         damages for noneconomic loss.

                (3) As used in this section, “noneconomic loss” means damages or
         loss due to pain, suffering, inconvenience, physical impairment, physical
         disfigurement, or other noneconomic loss.

                 (4) The state treasurer shall adjust the limitation on damages for
         noneconomic loss set forth in subsection (1) by an amount determined by
         the state treasurer at the end of each calendar year to reflect the cumulative
         annual percentage change in the consumer price index. As used in this
         subsection, “consumer price index” means the most comprehensive index
         of consumer prices available for this state from the bureau of labor statistics
         of the United States department of labor.

22
     Ante at 14.



                                               9
of those sections that the limitations on damages are only intended to be applied to

awards of damages, not settlements.

      The majority’s analysis ignores the full language of MCL 600.1483(2), which

requires the “trier of fact” to segregate the economic and noneconomic elements of

damages. This language logically means that only awards by a trier of fact are within the

scope of the subsection, not settlements, which do not involve a trier of fact. More

importantly, MCL 600.6304(5) mandates that only following an “award of damages” is

the court to reduce that “award” of noneconomic damages to the appropriate limitation

found in MCL 600.1483. MCL 600.6304(5) provides:

              In an action alleging medical malpractice, the court shall reduce an
      award of damages in excess of 1 of the limitations set forth in section 1483
      to the amount of the appropriate limitation set forth in section 1483. The
      jury shall not be advised by the court or by counsel for either party of the
      limitations set forth in section 1483 or any other provision of section 1483.

However, no comparable language can be found allowing a court to reduce awards by the

amount of a settlement. Thus, two logical conclusions can be drawn from the actual text

of this provision. First, the Legislature did not intend to preclude a trier of fact from

determining the full amount of recovery that is necessary to make the plaintiff whole and,

second, the Legislature only intended awards by a trier of fact to be reduced to the

noneconomic-damages limitation.       If the Legislature had intended the interpretation

adopted by the majority, it would be logical to assume that it would have made some

reference to settlement somewhere in the statutory scheme. Instead, the statutory scheme

is silent with respect to settlements. While the absence of such language does not

preclude common-law setoff, the common-law setoff rule is only applicable when




                                            10
overcompensation is involved. When there is no overcompensation, the common-law

setoff rule does not apply. In the absence of statutory authority, and in situations where

the common-law setoff rule does not apply, there is simply no basis to apply the

reduction in the manner that the majority requires.

       In this case, a jury determined that as a result of defendant Dr. Tuma’s negligence,

plaintiff Ms. Velez’s left leg had to be amputated. The jury found that defendant was

both professionally negligent and the proximate cause of plaintiff’s injuries. The jury

returned a verdict in plaintiff’s favor that included $124,831.86 in economic damages and

$1.4 million in noneconomic damages for a total verdict of $1,524,831. It is the total

verdict that constitutes full recovery and makes plaintiff whole. Only if she receives

more than this total amount would she be receiving a double recovery or

overcompensation.      Plaintiff is clearly not receiving a double recovery or

overcompensation because the trial court reduced the amount the jury determined would

make her whole to $394,200.23 The trial court reached this judgment amount by first

subtracting the settling codefendants’ payment to plaintiff ($195,000) from the jury’s

total verdict ($1,524,831) and then reducing the net verdict ($1,329,831) to the amount

required under MCL 600.6303 (in this instance, the noneconomic-damages limitation was

23
   The jury verdict included a total of $124,831.86 in economic damages and a total of
$1,400,000 in noneconomic damages. Economic damages were reduced pursuant to
MCL 600.6304(3) to zero, because all economic damages had been paid by a collateral
source. Noneconomic damages were reduced pursuant to MCL 600.6304(5) to the
amount of the applicable limitation on damages, which at the time was $394,200. The
final judgment totaled $649,655.59, which included the reduced verdict in the amount of
$394,200, as well as $43,000 in taxable costs, $105,812.50 for attorney fees, and
$106,643.09 in statutory interest covering the period up to the date of the judgment.



                                            11
$394,200). The Court of Appeals affirmed this equation. I agree with the trial court and

the Court of Appeals, and the majority errs by failing to take this approach. Rather than

applying the common-law setoff rule, the majority creates a new rule and simply calls it

“common-law setoff.” I cannot agree with this approach.

      My final concern regarding the majority’s decision is that it concludes that the

entire amount of plaintiff’s prior settlement with Tuma’s codefendants must be set off or

subtracted from plaintiff’s noneconomic-damages award. I find this action considerably

troubling because it ignores the actual agreement of the settling parties. The settlement

agreement between plaintiff and the settling codefendants is contained in a document

entitled “Covenant Not to Sue Agreement.” The total settlement amount was $195,000,

and the agreement specifically states the settlement is for all the damages including

economic, noneconomic, costs, attorney fees, and interest. This settlement was intended

to resolve all of plaintiff’s claims with the settling codefendants.    Pursuant to the

unambiguous terms of the agreement, the amount of $195,000 was not allocated into any

specific category of damages. As such, there is no logical way to conclude that all the

settlement proceeds were for noneconomic damages. Despite this, the majority ignores

the terms of the agreement and instead assumes that the entire settlement was for

noneconomic damages that are limited by the noneconomic-damages limitation contained




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in MCL 600.1483. Because an agreement between the parties is a contract, the majority

is not free to alter its unambiguous terms by making such an assumption.24

      For all the foregoing reasons, I respectfully dissent.



                                                        Diane M. Hathaway




24
 Grosse Pointe Park v Mich Muni Liability & Prop Pool, 473 Mich 188, 198; 702
NW2d 106 (2005); Lintern v Mich Mut Liability Co, 328 Mich 1, 4; 43 NW2d 42 (1950).



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