FILED JULY 23, 2012
S T A T E O F M I C H I G A N
SUPREME COURT

MYRIAM VELEZ,Plaintiff-Appellee/CrossAppellant,
v No. 138952 MARTIN TUMA, M.D.,Defendant-Appellant/CrossAppellee.

BEFORE THE ENTIRE BENCH
M ARY B ETH K ELLY , J. In this joint and several liability medical malpractice case, defendant, Dr. Martin Tuma, seeks a reduction of the final judgment rendered agains t him by the amount of his
codefendants’ settlement. This case ther efore 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 600.1 483, which limits a medical malpractice plaintiff’s recovery of noneconomic damages. Specifically, we must decide whether the Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 Legislature intended to abrogate the common- law setoff rule and, if not, the order in
which the setoff rule and th e noneconomic damages cap of MCL 600.1483 apply to a jury’s verdict. Both the circuit cour t and Court of Appeals held, pursuant to Markley v Oak Health Care Invest ors of Coldwater, Inc , 1 that the common-law setoff rule applies
and that the setoff must be a pplied 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 Co urt 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 lowe r courts’ sequencing of the setoff and the noneconomic damages cap, however, results in an outcome contrary to the Legislature’s requirement that medical malpractice plain tiffs “shall not” recover more noneconomic
losses than the amount dete rmined by MCL 600.1483. Rather, the Legislature has exercised its authority to limit a medical ma lpractice plaintiff’s recovery by capping noneconomic losses and requiring the reduction of economic losses by the amounts paid by collateral sources. Because application of th e 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 of f 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 In vestors of Coldwater, Inc , 255 Mich App 245; 660 NW2d 344 (2003).3 We therefore reverse that portio n of the Court of Appeals’ judgment affirming the circuit court’s application of th e common-law setoff rule.
I. FACTS AND PROCEDURAL HISTORY In September 2001, pl aintiff, Myriam Velez, filed suit against Detroit Receiving Hospital, Harper Hospital, and Drs. Lawren ce Schwartz and Martin Tuma, alleging that their failure to timely operate on her leg necessitated its amputa tion below the knee. After plaintiff filed her notice of intent to sue, the hospitals ente red into a settlement agreement with plaintiff in wh ich those defendants paid plai ntiff 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 allega tions 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 requir ed by MCL 600.1483(2), the jury itemized the verdict, separating it into past and future economic a nd 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 th is opinion, “defendant” refe rs to Tuma only, while “codefedants” refers to the hospital de fendants that settle d with plaintiff.

3 MCL 600.1483(3) defines “noneconomic lo ss” as “damages or loss due to pain, suffering, inconvenience, physical impairme nt, physical disfigurement, or other noneconomic loss.”4 Before the circuit court entered a final judgment in plainti ff’s favor, defendant requested that the circuit court apply the none conomic damages cap to the jury’s verdict and then subtract codefendants’ $195,000 se ttlement from the final judgment. Plaintiff objected, relying on Markley , and argued that the circuit c ourt was required to subtract
codefendants’ settlement from th e jury’s unadju sted “verdict

. ” 4 The circuit court denied defendant’s request, citing Markley for the proposition that co defendants’ settlement had to be applied to the jury’s un adjusted “verdict,” as opposed to the “judgment.” The court agreed with plaintiff’s interpretation of Markley : The question to the Court is wh ether 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 sa ys verdict. I don’t know what they meant, but I’ll take it literally and we will apply it to th e verdict. I will absolutely concur that th at will result in a plaintiff receiving more money than the cap amount. Thereafter, the circuit court entered a j udgment 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 plai ntiff’s economic damages had been satisfied through collateral sources, the circuit c ourt 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 $394,200.5 rule and reduced plaintiff’s economic damages to zero. 6 Finally, the circuit court reduced the remaining noneconomic dama ges to the amount of the statutory cap on noneconomic damages, $394,200. The circuit court ente red a final judgment for plaintiff in this

amount. 7 Including the prior settlement amount, plai ntiff’s total recovery was $589,200. In the Court of Appeals, defendant argu ed that the circuit court had erred by applying the setoff to the jury’s unadjusted verdict rather th an to the amount of the final judgment after applying the noneconomic dama ges cap. The Court of Appeals, however,
affirmed the circuit court’s decision to apply the setoff to th e unadjusted verdict. 8 The

6 In medical malpractice cases, the collateral source rule requi res 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 prov iders. 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, suppl emental security inco me benefits from the Social Security Administration.

7 The circuit court’s calculation ca n be demonstrated as follows: Total Jury Verdict $1,524,831.86
Settlement Setoff - $195,000

Post Setoff Verdict $1,329,831.86
Economic Damages $0 due to reduction for collateral sources Noneconomic Damages $394,200 due to statutory cap on noneconomic damages Final Judgment $394,200

8 Velez v Tuma , 283 Mich App 396; 770 NW2d 89 (2009).6 Court first reasoned that the common-law seto ff rule remained applicable in medical malpractice cases involving jo int and several tortfeasors and that the rule should be applied so that a plaintiff will not be overcomp ensated for his or her actual loss. Turning to the question whether th e setoff is to be applied to a jury ’s verdict or the final judgment after application of the noneconomic damage s 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] sh ould 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 ru le to the jury verdic t [which comprises a plaintiff’s actual loss], rather th an the final judgment, is proper.” 11 Defendant applied for leave to appeal in this Court, and plaintiff filed a crossappeal. Initially, we de nied both applications, 12 but we later granted defendant’s motion for reconsideration and granted leave to appeal, limited to th e issue “whether the Court of Appeals correctly held that the setoff amount in this case was proper ly set off against the

9 Id . at 412.

10 Id. at 413.

11 Id

. 12 Velez v Tuma , 488 Mich 903 (2010). Be fore our initial denial, we had held the case in abeyance for the resoluti on of issues not involve d in this appeal. Velez v Tuma , 775 NW2d 146 (Mich, 2009).7 jury verdict, before application of the noneconomic damages cap of MCL 600.1483 and calculation of the final judgment.” 13 After hearing oral argumen t 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 wh ere joint and several liability is imposed.” 14
II. STANDARD OF REVIEW The questions presented in these appeals ar e questions of law that we review de

novo. 15 To the extent we must in terpret the meaning of applicab le statutes, our review is
also de novo. 16
III. EXISTENCE OF CO MMON-LAW SETOFF RULE Plaintiff argues that the Legislature ab rogated the common-law setoff rule and thus any setoff of codefendants’ settlement aw ard 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 form er MCL 600.2925d(b), as added by 1974 PA 31 8, which had codified the setoff rule and pr ovided 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, l eave to appeal is denied, beca use 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

.8 The common law remains in force until “changed, amended or repealed.” 17 Whether the Legislature has abrogated, am ended, or preempted the common law is a question of legislative intent. 18 We will not lightly presum e 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 Legislatur e ‘should speak in no uncertain terms’ when it exercises its authority to modify the common law.” 21 We cannot conclude that the Legislat ure intended to abolish the common-law
setoff rule in the context of joint and several liability medica l malpractice cases. While the pertinent statutes are silent with respec t to the application of the common-law setoff rule, we cannot agree with plaintiff that th e 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 fo rmer MCL 600.2925d(b) was but one part of comprehens ive tort-reform legislation a nd that there is no conflict
between the common-law rule and the current legislation that would prevent the setoff’s application. Those 1995 refo rms abolished joint and severa l 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 Ba r-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).9 and created an allocation-of-fau lt system in which each tortfe asor 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 alre ady incorporates the fault of all tortfeasors in establishing every individual tortfeasor’s pr oportion of fault, there is no danger that the plaintiff will be overcompensated for the injury by the failure to set off th e amount of another
tortfeasor’s settlement. The same comprehensive tort-reform le gislation, 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 pl aintiff is determined to be without
fault. 23 For reasons we explain, the Legislatur e’s unambiguous intent to maintain joint and several liability in this co ntext also evinces a clear inte nt to retain the common-law setoff rule in joint and several lia bility 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 singl e or indivisible injury, the injured party [may] either sue all tortfeasor s 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 600.2 956 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 a nd 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).10 our rules of construction, “technical words an d phrases, and such as may have acquired a peculiar and appropriate meani ng in the law, shall be cons trued and understood according to such peculia r 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 severa l liability is the concept that a plaintiff’s recovery is limited to one comp ensation for the single injury. 26 Because in some instances a jointly and severally liabl e tortfeasor settles before trial, the common-law setoff rule is necessary to en sure that the plaintiff does not recover more than a single recovery for the single in jury. 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 a ny verdict rendered against them. 27 By reiterating that liability in most medical malp ractice cases is joint and se veral, 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 entir e judgment, although the injured party was entitled to full compen sation only once.”); Verhoeks , 244 Mich at 371 (“‘The injured party has the right to pursue [tortfeasors] join tly 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 to rtfeasors, and one alleged tortfeasor agrees to settle his potential liability by paying a lu mp 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.”).11 Legislature’s repeal of the statutory seto ff was not to abrogate the common-law setoff rule, but to acknowledge that a setoff does not apply in ac tions 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 verdic t in the amount of the joint codefendant’s settlement. The Court of Appe als rejected the circuit court’s reasoning that the Legislature’s repeal of former MC L 600.2925d(b) was inte nded to abrogate any common-law right to a setoff. Instea d, the appeals court reasoned: [I]t is logical to conclude th at common-law setoff in joint and several liability cases re mained 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 th e rule not be applied. Considering the general nature and tone of tort refo rm legislation, we conclude that the Legislature did not intend to allow reco very greater than the actual loss in joint and several liability cases when it deleted th e relevant portion of [MCL 600.2925d], but instead inte nded that common-law principles limiting a recovery to the actua l loss would remain intact. [28] Thus, the Court of Appeals held that “the principle of on e recovery and the common-law rule of setoff, in the context of joint and seve ral 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 Legisl ature intended to preserve setoffs of a joint tortfeasor’s settlement because the Legislat ure expressly retained joint and several liability in the medical malpractice context.12 After Markley , this Court in Kaiser v Allen 30 considered whether principles of joint and several liability and the common-law setoff rule applied in vehi cle-owner vicariousliability cases. After the jury returned a verdict in the pl aintiff’s favor, the defendant sought a setoff in the amount of his codefe ndant’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 amou nt of damages that belong to the vehicle owner separately from the negligen t operator, we held that “[t]he tort-re form statutes do not apply to . . . vehicle-owner vicarious-liability cases . . . . Therefore, the common-law setoff rule remains the law in Michigan for vehi cle-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 stat utes; mainly, that where the Legislature has reta ined 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 a pplication, and plaintiff has identified none. Given our re asoning and our decision in Kaiser , we cannot hold that Markley was wrongly decided, as plaintiff urge s. Accordingly, we hold that the common-law setoff rule remains the law in join t and several liability medical malpractice cases. We further clarify, c onsistent with our decision in Kaiser , that where the Legislature has specifically retained the te chnical common-law term “joint and several liability,” the common-law seto ff rule remains applicable.

30 Kaiser , 480 Mich 31.

31 Id . at 36.13 IV. APPLICATION OF COMMON-LAW SETOFF RULE
Our conclusion that the common-law setoff rule remains appli cable 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-la w 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 6 00.1483. We are cognizant th at 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 languag e must be enforced as written. 34 Further, a statute in derogation of the common law will not be constr ued to abrogate the common law by implication, but if there is an y 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 applyi ng the setoff before applying the noneconomic damages cap, ther eby allowing plaintiff to recover a total judgment beyond what Michigan law permits . While the Court of Appeals properly recognized that the common-law se toff 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 494.14 that a plaintiff is not overcompensated for hi s or her injury, the Court erred by failing to address how the mandatory limitation on noneco nomic damages affects application of the
setoff. As noted, MCL 600.1483(1) limits a plai ntiff’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 damage s 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 no neconomic damages “recoverable” “shall not exceed” the statutory cap. Use of the term “recoverable,” giving it its plain meaning, denotes noneconomic losses that are capabl e of being recovered, which necessarily includes recovery through settlements, jury verdicts, or arbitration. 37 Because the term “total” modifies “amount of damages for no neconomic loss recoverable,” it makes clear
that all such sums recovered “shall not exc eed” the cap. The Legi slature, through the unambiguous language of MCL 60 0.1483(1), has then determined that a plaintiff’s actual

36 Emphasis added. Although there is no dis pute regarding the cap amount in this case, the amount of the cap is adjustable “at th e 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 “rec overable” to mean “[c]apable of being recovered.” Justice H ATHAWAY , however, claims that we have added la nguage to MCL 600.1483 because the provision “makes no reference to settlements at all.” Post at 9. This interpretation ignores entirely the breadth of th e definition of the term “recoverable.”15 loss—and thus full compensatio n—for noneconomic losses cause d by the single injury may be less than what a jury awards a nd 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 comm on-law setoff rule is

38 Justice H ATHAWAY mischaracterizes MCL 600.1483 , and other provisions limiting damages, as measures that “preclude a plaintiff from receivi ng 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 automa tically 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 compen sation for noneconomic injuries, it forms the basis of determining to what extent a recovery for noneconomic damages necessarily represents overcompensation, an d 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 render ed by a trier of fact in favor of a plaintiff, an order of judgment shall be entere d by the court. Subject to [MCL 600.2959], the order of judgment sha ll 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 paym ents determined to be collectible under [MCL 600.6303(5)] reduced to gross present cash value. (d) All future medical and other h ealth care costs reduced to gross present cash value.16 traditionally applied to a jury’s verdict, we do not view the statutory silence or the traditional application of the common-law se toff to be dispositive of the sequencing issue. Rather, the clear le gislative directive of MCL 600.1483, when considered in juxtaposition with the purpos e of the common-law setoff ru le, provides the necessary guidance. Because a medical malpractice plai ntiff cannot by operation of law recover more noneconomic damages than the statutor y limit, it follows that a plaintiff’s full recovery of noneconomic losses for the sing le 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 th rough 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 app lied to ensure that the plain tiff is not comp ensated beyond statutorily permissible limits. To achieve th is result, the settlement must be subtracted from a jury verdict after application of the noneconomi c damages cap, as well as the collateral source rule; otherwise, the plainti ff could recover more than his or her full compensation, that is, the plaintiff could re cover the settlement amount, plus the amount of the cap and the amount of statutorily permissible economic damages, if any. 40

(e) All future noneconomic damage s reduced to gro ss present cash value.

40 Justice H ATHAWAY contends that our application of the setoff creates a “new rule that bears little resemblance to the common-law se toff rule or its underlying purpose,” post at 8, and that our failure to recognize th e 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 fo r the common law to make the distinction that we recognize. We have not, therefore, ignored that the seto ff has traditionally been applied to the verdict. Rather, consistent w ith our jurisprudence, we have applied both the common-law rule and the stat ute in the manner that best gives effect to the purposes17 Yet this is exactly what the lower courts di d in this case. Neith er 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 conclusi on 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 applyi ng the setoff directly to the unadjusted verd ict, the lower
courts thus subverted both the clear directive of MCL 600.1483—that medical malpractice plaintiffs not recover no neconomic 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 plai ntiff’s economic losses we re zero, because of collateral sources, the remaini ng final judgment of $394,200 after the cap was necessarily composed of only nonecono mic losses. Plaintiff’s to tal recovery from all joint

of both. See, e.g., People v Nowack , 462 Mich 392, 406; 61 4 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 st atutes). 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 disput e, its interpretation would allow a medical malpractice plaintiff to recover more than the statutorily limited amount.18 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 H ATHAWAY ’s dissent assert that the measure of her actual losses for purposes of the setoff is the ju ry’s verdict and that she can only be overcompensated for purposes of the common-law setoff rule if she receives more than th e jury’s verdict.
Plaintiff cites both Kaiser and Markley for the proposition that th e 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 vi carious liability for those who drive the owner’s vehicle, and there is no si milar damages cap in the context of vehicleowner 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 th e 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 “the re [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 “jud gments” and “jury verdicts” as the measure of actual
loss. Plaintiff also cites our decision in Rittenhouse v Erhart 42 for the same proposition,

41 Markley , 255 Mich App at 258.

42 Rittenhouse v Erhart , 424 Mich 166; 380 NW2d 440 (1985).19 but Rittenhouse is likewise unhelpful because it did not address the interaction between the damages cap and th e common-law setoff rule

. 43 Accordingly, we hold that wh ere principles of joint and several liability apply in a medical malpractice case and a codefendant ha s settled a plaintiff’s claim before trial, a circuit court must first apply to the jury’s verdict the nonec onomic damages cap, as well as any other statutorily required adjustments, before reducing the award by the amount of the codefendant’s settlement. Here, plaintif f received a settlement from codefendants in the amount of $195,000. At a later trial agai nst defendant, the jury returned a verdict for

43 As additional support, plaintiff and Justice H ATHAWAY argue that MCL 600.1483 does not limit the total amount of noneconomic da mages plaintiff may recover because MCL 600.1483(1) only applies to jury awards, not settlements. Sp ecifically, the dissent posits that MCL 600.1483(1) applies only to jury awards because the language of MCL 600.1483(2), which requires juries “awardi ng 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 H ATHAWAY further asserts that the Legislat ure only intended jury awards, not settlements, to be reduced by the noneco nomic damages cap because MCL 600.6304(5) is silent with respect to any re duction 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. Th is 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 da mages cap as applying only to jury awards and not settlements would render nugatory the term “recoverable” in MCL 60 0.1483(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 a nd 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 H ATHAWAY , 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 an d that plaintiff’s rec overy of noneconomic damages is, in effect, set by law.20 plaintiff for $1,524,831.86. Given our holding, it was error for the lower courts to apply the setoff against the jury’s ve rdict. Rather, the proper or der of operation was to first apply both the collateral sour ce rule and the noneconomic damages cap to arrive at the final judgment, which is plain tiff’s full compensation for her in jury as determined by the Legislature. 44 Because plaintiff has already received partial compensati on for that injury, application of the common-law setoff rule requires that codefendants’ settlement be subtracted from the final judgmen t so that plaintiff does not receive more than a single

44 Justice C AVANAGH criticizes this application of th e 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 exac tly what we intend because it is also what the Legislature intends. Had th e Legislature intended to preclude this result from inuring to the benefit of a medical ma lpractice defendant, it could have used a phrase less broad than “total amount of da mages for noneconomic loss recoverable” in MCL 600.1483(1) or otherwise prohibite d any application of the setoff rule.21 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 w ith 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 “noneconom ic damages award” by the amount of the settlement, Justice H ATHAWAY 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 pl aintiff’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 disse nt admits, the settlement was an aggregate award for all the damages, including econ omic and noneconomic damages, costs, attorney fees, and interest. As an aggregat e award, subtraction of the settlement from the adjusted verdict in th is 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 contai n only economic damages, on ly noneconomic damages, or some combination thereof.

46 This equation can be summarized as follows: Total Jury Verdict $1,524,831.86 Economic Damages $124,831.86, reduced to $0 by collateral sources Noneconomic Damages $1,400,000, reduced to $394,200 due to cap on noneconomic damages Settlement Setoff - $195,000 Final Judgment $199,200

47 Fairfax Hosp Sys, Inc v Nevitt , 249 Va 591, 5 99; 457 SE2d 10 (1995) (citation omitted).22 Court ruled that the $1 million cap on medica l malpractice damages reduces a verdict before any settlements are set off against it: “[ W]here there is a verd ict by a jury or a judgment by a court against a health care pr ovider 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 rende red 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 th e jury’s verdict for non-economic damages, followed by a credit for the joint tortfeasor settlement.” 49 Plaintiff criticizes this position and clai ms that it requires the itemization of settlements. Plaintiff’s position actually caus es this perceived ha rm, however. When a judgment contains both economic and nonecono mic damages, a circuit court applying the

48 Lockshin v Semsker , 412 Md 257, 283; 987 A2d 18 (2010).

49 Id . Numerous other jurisdictions have al so 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 th at the trial court properly applied the noneconomic damages cap, Cal Civ Code 3 333.2, first before re ducing the judgment by the percentage of fault attr ibuted to the settlement the plaintiff had already recovered because “the plaintiff could not recover mo re than $ 250,000 in noneconomic damages from all health care providers for one injury,”); Garhart v Columb ia/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 app lied to a jury’s verdict first before allocating fault attributed to a settleme nt, so that the plaintiff does not recover more than the cap).23 setoff to the jury’s verdict before application of the collateral source rule would have to
determine how to allocate the settlement betw een economic and noneconomic damages. This is a result we cannot condone, not only b ecause 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 comp osition of the settlement is u nknown, circuit courts would be left to guess at how a settle ment 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 th e other hand, that a circuit
court must subtract the total settlement fro m the final judgment, creates no need to allocate the settlement procee ds between economic or no neconomic damages before applying the setoff. Rather, the settlement is treated as an aggregat e award to be applied against the plaintiff’s total actual loss, meani ng the final judgment after application of the applicable statutory adjustments.
V. CONCLUSION To the extent the Legislature has not a bolished principles of joint and several liability, those principles and the common-law setoff rule remain th e law in Michigan.

50 Under plaintiff’s rule, medical malpracti ce plaintiffs would have an incentive to structure settlement agreements as entirel y economic damages, es pecially when the plaintiff expects collateral sources to wipe out all economic damages. The settling codefendants, however, might be unwilling to en ter into such an agr eement, knowing that it could potentially prejudice their associates and potentially sour business relationships.24 Markley reached this same conclusion, and we d ecline plaintiff’s invitation to conclude
that Markley was wrongly decided. Fu rther, when joint and seve ral liability principles apply in medical malpractice cases, any se ttlement must be se t off from the final judgment after application of the nonec onomic 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 po rtion of the Court of Appeals’ judgment upholding the circuit court’s application of the common-law setoff ru le and remand to the circuit court for entry of an order re ducing the final judg ment 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. ZahraS T A T E O F M I C H I G A N
SUPREME COURT

MYRIAM VELEZ,Plaintiff-Appellee/CrossAppellant,
v No. 138952 MARTIN TUMA, M.D.,Defendant-Appellant/CrossAppellee.

M ARKMAN , J. ( concurring ). I concur in the majority opi nion with the exception of th e 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 imp lication abrogate established rules of common law. That is, the Legislature doe s not have to explic itly 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 comm on law may be sufficiently clear without its having to explicitly state that this is its intent. A legi slative body need not provide a running commentary of the effect of its acti ons on the common law wh en its actions will admit of only the most obvious interpretati on. 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 Legislat ure has not, either expressly or implicitly, abrogated the2 common-law setoff rule in the context of jo int and several liability medical malpractice

cases.

Stephen J. MarkmanS T A T E O F M I C H I G A N
SUPREME COURT

MYRIAM VELEZ,Plaintiff-Appellee/CrossAppellant,
v No. 138952 MARTIN TUMA, M.D.,Defendant-Appellant/CrossAppellee.

C AVANAGH , J. ( concurring in part and dissenting in part ). I agree with both the majority and disse nting opinions that the common-law setoff rule applies in the context of joint and seve ral liability medical malp ractice cases. There is no indication that the Legislature intende d 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; 52 8 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 app lied because, in my view, the panel did not clearly err by holding that th e common-law setoff should be applied as it traditionally has

1 Former MCL 600.2925d(b), as added by 19 74 PA 318, was delete d by 1975 PA 161.2 been—to the unadjusted jury verdict. To apply the common-law setoff after the operation of the medical malpractice nonec onomic-damages cap provides defendants with both the benefit of th e damages cap and the further reduction of the common-law setoff. I agree with Justice H ATHAWAY that the jury verdict represents the total amount of damages a plaintiff is entitled to recover and that applying th e common-law setoff to the unadjusted jury verdict before operation of the damages cap ensures that plaintiff is not overcompensated for a single, indivisibl e injury. Further, applying the common-law setoff to the unadjust ed jury verdict does not impair the protections afforded to a defendant by the medical malpractice dama ges cap, as the Legislature intended.

Michael F. Cavanagh Marilyn KellyS T A T E O F M I C H I G A N
SUPREME COURT

MYRIAM VELEZ,Plaintiff-Appellee/CrossAppellant,
v No. 138952 MARTIN TUMA, M.D.,Defendant-Appellant/CrossAppellee.

H ATHAWAY , 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 w ith 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-la w setoff rule, I respectfully dissent. For many years, the rule in this state was that concurre nt tortfeasors were held to be jointly and severally liable. Joint and seve ral 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, th at 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; 71 3 NW2d 285 (2006).2 including damages for injury caused by a code fendant or a nonparty, in order to ensure that an injured party is fully compensated. 2 A corollary of joint and several lia bility is the common-law setoff rule. 3 Common-law setoff is grounded in the principl e 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 negligen t conduct of two or more tortfeasors, any amount paid by a settling defend ant was “set off” or subtracted from the verdict awarded by the trier of fact. 5 The common-law application of se toff 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 jo intly and severally liable. However, statutory setoff was subsequently elim inated by 1995 PA 16 1, 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) (K ELLY , 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 600.2956.3 to apply to the limited categories of tort cl aims 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 th e common-law setoff rule applies to claims against owners and ope rators of motor vehicles when vicarious liability is statutorily imposed. In holding that the co mmon-law setoff rule app lies 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 tortfeas ors jointly and severally and recover separate judgments; however, a single injury can lead to only a single compensation. . . . Allowing plaintiff to recove r the entire verdict against Allen [vehicle owner] and to re tain all the proceeds from the settlement with [the vehicle’s operator] would allow the pl aintiff to recover four times more than the jury determined plaintiff should be awarded for his injuries. The Legislature did not intend that a plain tiff be awarded damages greater than the actual loss in vicarious-liability case s, resulting in a do uble recovery. The common-law setoff rule should be ap plied to ensure that a plaintiff only recovers those damages to which he or sh e is entitled as compensation for the whole injury. . . .
* * * To the extent that joint and severa l liability principles have not been abrogated by statute, they remain in tact, and the common-law setoff rule remains the law in Mich igan with regard to vehicle-owner vicariousliability cases. [9]

8 See, for example, MCL 600. 2956, which retains vicarious liability for employers, and MCL 257.401(1), which re tains vicarious liability for vehicle owners.

9 Kaiser , 480 Mich at 39-40 (citation omitted).4 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 reta in joint and several liability. 10 Moreover, I believe that in Markley v Oak Health Care Investors of Coldwater,
Inc , 255 Mich App 245, 25 6-257; 660 NW2d 3 44 (2003), the Court of Appeals correctly
reasoned that [w]ith tort reform and th e switch to several liability, it is logical to conclude that common-law setoff in joint and several liability cas es remained the law . . . where application of the co mmon-law rule does not conflict with any current statutes concerning to rt law, and where a plaintiff is conceivably overcompensated for its injury should the rule not be applied. Thus, Markley correctly held that in medical malp ractice cases that retain joint and several liability, the common-law setoff rule applies. Howeve r, with that said, if the common-law setoff rule is to be imposed in th e 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 severa l liability has been abolished, and the defendants’ liability is several. When a plaintiff is not comp aratively negligent, joint and several liability is imposed under MCL 600.6304(6)(a).5 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 accomplishe d this goal by subtracting any settlement amount for that injury from the trie r of fact’s determination of the entire amount of the injured party’s damages. When applyi ng the common-law seto ff rule to medical malpractice cases under the current stat utory scheme, the goal of preventing overcompensation remains the same. In analyzing whether a medical malprac tice plaintiff has been overcompensated, we must be mindful of the so-called “tort refo rm” liability statutes that contain measures to preclude a plaintiff from receiving overcomp ensation 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 basis 13 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 600.6307.6 trial are subject to two different limitati ons 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 verd ict rendered in his or her favor. These measures greatly reduce the possibility that a medical ma lpractice plaintiff can be overcompensated. To determine whether a medical malp ractice plaintiff has actually been overcompensated, a multis tep analysis is required that considers all the principles discussed above. The first step is to cons ider whether the plaintiff was comparatively negligent. If the plaintiff wa s comparatively negligent, a de fendant’s liability is several and, as such, the defendant is only responsi ble for his or her pro rata share of the plaintiff’s damages. 18 In these instances, the issue of se toff is irrelevant because there is no possibility of the plaintiff being overcompensated . On the other ha nd, if the jury determines that the plaintiff was not comparatively negligen t, the court must determine whether the plaintiff is being overcompensate d and, if so, the common-law setoff rule is applicable. In these instances, after a verd ict has been rendered, any settlement amounts paid for damages arising from that single, indi visible injury must be set off in the same manner and for the same purpose as at co mmon 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).7 determines is the full amount that the plaintiff is entitl ed 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 subtract ed from the reduced award. Additionally, under the majority’s analysis, the entire amount of the settleme nt proceeds must be set off from the noneconomic-damages portion of the pl aintiff’s adjusted ne t verdict, without any consideration of whether all the settleme nt 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 inju ry. The majority seemingly disregards the
obvious—the trier of fact determines the tota l amount of a plaintiff’s damages, and only when a plaintiff rece ives 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 me rely to prevent overco mpensation; it is not to further undercompensate the plaintiff. Unfortunately, the ma jority’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 pa id 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.8 applying this rule fails to achieve the goa l 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 th e common-law setoff rule or its underlying purpose. It is
axiomatic that if a common-law rule is to be used, it should be ap plied in the manner and for the purposes that it was intended at comm on law. To do otherw ise 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 th at the limitations in this subsection preclude any

21 The full text of MCL 600.1483 provides: (1) In an action for damages a lleging medical malpractice by or against a person or party, the tota l amount of damages for noneconomic loss recoverable by all plaintiffs, re sulting from the negligence of all defendants, shall not ex ceed $280,000.00 unless, as the result of the negligence of 1 or more of the de fendants, 1 or more of the following exceptions apply as determ ined 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, pa raplegic, 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 th e spinal cord. (b) The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapabl e of independently performing the activities of normal, daily living.9 recovery above that amount regardless of whet her an award of damages by a trier of fact is involved. I disagree. The majority reache s its conclusion by myop ically focusing on a few selected words of MCL 600. 1483(1), rather than the entir ety 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 in clude[] recovery through settlements, jury verdicts, or arbitration.” 22 However, contrary to the majo rity’s position, subsection (1)
makes no reference to settlements at all. Mo reover, 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 in ability to procreate. (2) In awarding damages in an action alleging medical malpractice, the trier of fact shall itemize damage s into damages for economic loss and damages for noneconomic loss. (3) As used in this section, “n oneconomic loss” means damages or loss due to pain, suffering, inconvenien ce, physical impairment, physical disfigurement, or other noneconomic loss. (4) The state treasurer shall ad just the limitation on damages for noneconomic loss set forth in subsecti on (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 cons umer price index. As used in this subsection, “consumer price index” means the most comprehensive index of consumer prices available for this st ate from the bureau of labor statistics of the United States department of labor.

22 Ante at 14.10 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 fu ll language of MCL 600.1483(2), which requires the “trier of fact” to segregate the economic and none conomic elements of damages. This language logically means that on ly awards by a trier of fact are within the scope of the subsection, not settlements, whic h do not involve a trier of fact. More importantly, MCL 600.6304(5) ma ndates 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 malpr actice, the court shall reduce an award of damages in excess of 1 of th e limitations set forth in section 1483 to the amount of the a ppropriate limitation set fort h in section 1483. The jury shall not be advised by the court or by counsel for e ither party of the limitations set forth in section 1483 or any other provisi on of section 1483. However, no comparable language can be found allowing a cour t 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 Le gislature had intended the interpretation adopted by the majority, it woul d be logical to assume that it would have made some reference to settlement somewhere in the statut ory 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 when11 overcompensation is involved. When ther e is no overcompensation, the common-law setoff rule does not apply. In the absence of statutory auth ority, 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 determ ined that as a result of defe ndant Dr. Tuma’s negligence, plaintiff Ms. Velez’s left leg had to be am putated. The jury found that defendant was both professionally negligent and the proximate cause of plaintiff’s injuries. The jury returned a verdict in plainti ff’s favor that included $124,83 1.86 in economic damages and $1.4 million in noneconomi c damages for a total verdict of $1,524,831. It is the total verdict that constitutes full recovery and make s plaintiff whole. Only if she receives more than this total amount would she be receiving a double recovery or overcompensation. Plaintiff is clearl y not receiving a double recovery or overcompensation because the trial court redu ced 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’ paymen t to plaintiff ($195,00 0) from the jury’s total verdict ($1,524,831) and then reduci ng the net verdict ($1,329,831) to the amount required under MCL 600.6303 (in this inst ance, the noneconomic-damages limitation was

23 The jury verdict in cluded a total of $124,831.86 in economic damages and a total of $1,400,000 in noneconomic damages. Eco nomic damages were reduced pursuant to MCL 600.6304(3) to zero, becau se all economic damages had been paid by a collateral source. Noneconomic damages were redu ced pursuant to MC L 600.6304(5) to the amount of the applicable limitation on damage s, which at the time was $394,200. The final judgment totaled $649,655.59, which in cluded the reduced verdict in the amount of $394,200, as well as $43,000 in taxable co sts, $105,812.50 for attorney fees, and $106,643.09 in statutory interest covering th e period up to the da te of the judgment.12 $394,200). The Court of Appeals affirmed this equation. I agree wi th 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 major ity creates a new rule and simply calls it “common-law setoff.” I cannot agr ee with this approach. My final concern regarding the majority’s decision is that it concludes that the entire amount of plaintiff’s prio r settlement with Tuma’s codefe ndants must be set off or subtracted from plaintiff’s noneconomic-damage s award. I find this action considerably troubling because it ignores the actual agreem ent 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 sp ecifically 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 se ttling 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, th ere is no logical way to conclude that all the settlement proceeds were for non economic damages. Despite this, the majority ignores the terms of the agreement and instead a ssumes that the entir e settlement was for noneconomic damages that are limited by the noneconomic-damages limitation contained13 in MCL 600.1483. Because an agreement betw een 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 Liabilit y & Prop Pool , 473 Mich 188, 198; 702 NW2d 106 (2005); Lintern v Mich Mut Liability Co , 328 Mich 1, 4; 43 NW2d 42 (1950).