April 18, 2019
No-Fault Update--The Michigan Court of Appeals Reviews Voluntary Payments of an Insurer as Admissions of an Injury
Ross v Dyment, Dkt. No. 341273 (Mich Ct. App. March 14, 2019)
TheMichigan Court of Appeals recently issued an unpublished Opinion in Ross v Dyment finding that the plaintiffin an action for uninsured/underinsured motorist ("UM/UIM") benefits wasallowed to argue that the insurance company admitted that the plaintiff'sinjuries were related to the accident by virtue of the insurance company payingplaintiff's personal injury protection ("PIP") benefits. Specifically, the defendantinsurance company argued that the plaintiff suffered no injuries as a result of an automobile accident. Plaintiff responded with argument that theinsurance company voluntarily paid PIP benefits; and therefore, the insurancecompany effectively admitted that plaintiff suffered "an" injury as a result ofthe accident.
Importantly,the Court of Appeals found that because the insurance company failed to requestfor curative instruction and/or move for a mistrial, it failed preserve itsdefenses against the plaintiff's argument.The jury awarded a verdict in favor of Plaintiff, and the insurancecompany appealed for attorney misconduct.The Ross Court further foundthat the plaintiff's arguments did not deny a fair trial, and the prejudice, ifany, could have been cured by a curative instruction that was not requested.
Whileunpublished, the Ross Opinion couldhave far reaching impacts with respect to the interplay between the adjustmentof a PIP claim and preserving defenses in an UM/UIM action on behalf of thesame insured. The most critical portionof the Ross Opinion at this time isthe fact that defenses for these arguments must be developed and preserved asearly as possible, as well as having Motions in Limine and curativeinstructions prepared in anticipation of these arguments. Please feel free to review the remainder ofthis article for a more detailed discussion of this case.
Summary of Facts and Appellate Opinion
Plaintiffsued defendant insurance company for uninsured motorist benefits for injuriesarising out of an automobile accident.In opening statements before the jury, plaintiff introduces argumentthat the insurance company had voluntarily paid for Plaintiff's PIP benefitsand, in effect, admitted that plaintiff suffered injuries as a result of theaccident. Defendant objected to relevance and improper standard. The Trial Court ruled that opening statementswere not evidence and the jury was not to consider it as such. During trial plaintiff testified that shefiled an application for benefits with the insurance company and advised thecompany that she was injured in the accident.Defendant again objected. TheCourt inquired whether defendant was going to introduce expert testimony that plaintiffsuffered no injuries in the accident.Defendant affirmed. As a result,the Court permitted plaintiff to proceed with direct examination. Finally, plaintiff again presented theargument in closing. Defendant did not request a curative instruction and/ormove for a mistrial. Defendant thenappealed for attorney misconduct.
Notably,the Court of Appeals held that defendant did not preserve the issue for appealby failing to request a curative instruction and/or move for a mistrial. Even if a party fails to preserve an issuefor appeal, the Court of Appeals may still reverse when the (1) attorneyremarks were so prejudicial that a party was denied a fair trial and (2) theprejudice could not have been cured by a curative instruction.
TheCourt held that the argument was not so prejudicial to deny defendant a fairtrial and the prejudice, if any, could have been cured by a curativeinstruction that the defendant failed to request. Importantly, plaintiff's argument was onlyused to rebut the defense's position that plaintiff did not suffer any injuries. Plaintiff did not use the argument to assertthat plaintiff met the threshold injury standard. Additionally, the Court instructed the juryon the correct threshold injury standard separate and distinct from a showingthat plaintiff was generally injured as a proximate result of the drivers'negligence. Furthermore, the jury heardtestimony from Plaintiff, plaintiff's husband, and plaintiff's doctor regardingthe injuries she claimed to sustain, the seriousness of the injuries, and howthose injuries affected plaintiff's life.Even if the Plaintiff's argument was improper, the Court held thatargument could have been cured by a curative instruction, which defendantfailed to request. In sum, the Court of Appeals opinion came down to proceduralerrors.