For purposes of calculating the employer's lien under the Franges formula, the plaintiff's recovery and recovery expenses should be determined as they appear on the judgment date. Bonarek v Wayne Co Bd of Institutions, 165 Mich. App. 346, 353; 419 N.W.2d 21 (1987), lv gtd 430 Mich. 891 (1988), app dis 433 Mich. 880 (1989). Thus, in the case of a structured settlement award, the present value of the structured settlement must be used to calculate the employer's workers' compensation lien.
There is authority to support the plaintiffs' factual allegations in this regard. See, e.g., Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 58 (Ky.App. 1986) ("[t]he prevailing law is that a structured settlement should be valued at its present cash value"); Bonarek v. Wayne County Board of Institutions, 165 Mich. App. 346, 354, 419 N.W.2d 21 (1987) ("[t]he cost of the annuities are their present values"); Merendino v. FMC Corp., 181 N.J. Super. 503, 509, 438 A.2d 365 (1981) ("the cost of the annuities reflects the actual present value in the marketplace"); 3 J. Stein, Personal Injury Damages (3d Ed. 1997) § 16:40, p. 16-40 ("[c]ourts have consistently held that the present value of an annuity used to fund a structured settlement is its cost"). Whether the terms "cost" and "present value" were represented to be synonymous is a question of fact to be resolved at trial.