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)

Introduction

The Michigan Court of Appeals recently issued an unpublished Opinion in Ross v Dyment finding that the plaintiff in an action for uninsured/underinsured motorist ("UM/UIM") benefits was allowed to argue that the insurance company admitted that the plaintiff's injuries were related to the accident by virtue of the insurance company paying plaintiff's personal injury protection ("PIP") benefits.

Specifically, the defendant insurance company argued that the plaintiff suffered no injuries as a result of an automobile accident. Plaintiff responded with argument that the insurance company voluntarily paid PIP benefits; and therefore, the insurance company effectively admitted that plaintiff suffered "an" injury as a result of the accident.

Importantly, the Court of Appeals found that because the insurance company failed to request for curative instruction and/or move for a mistrial, it failed preserve its defenses against the plaintiff's argument. The jury awarded a verdict in favor of Plaintiff, and the insurance company appealed for attorney misconduct. The Ross Court further found that the plaintiff's arguments did not deny a fair trial, and the prejudice, if any, could have been cured by a curative instruction that was not requested.

While unpublished, the Ross Opinion could have far reaching impacts with respect to the interplay between the adjustment of a PIP claim and preserving defenses in an UM/UIM action on behalf of the same insured. The most critical portion of the Ross Opinion at this time is the fact that defenses for these arguments must be developed and preserved as early as possible, as well as having Motions in Limine and curative instructions prepared in anticipation of these arguments. Please feel free to review the remainder of this article for a more detailed discussion of this case.

Summary of Facts and Appellate Opinion

Plaintiff sued defendant insurance company for uninsured motorist benefits for injuries arising out of an automobile accident.In opening statements before the jury, plaintiff introduces argument that the insurance company had voluntarily paid for Plaintiff's PIP benefits and, in effect, admitted that plaintiff suffered injuries as a result of the accident. 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 she filed an application for benefits with the insurance company and advised the company that she was injured in the accident. Defendant again objected. The Court inquired whether defendant was going to introduce expert testimony that plaintiff suffered 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 then appealed for attorney misconduct.

Notably, the Court of Appeals held that defendant did not preserve the issue for appeal by failing to request a curative instruction and/or move for a mistrial. Even if a party fails to preserve an issue for appeal, the Court of Appeals may still reverse when the (1) attorney remarks were so prejudicial that a party was denied a fair trial and (2) the prejudice could not have been cured by a curative instruction.

The Court held that the argument was not so prejudicial to deny defendant a fair trial and the prejudice, if any, could have been cured by a curative instruction that the defendant failed to request. Importantly, plaintiff's argument was only used to rebut the defense's position that plaintiff did not suffer any injuries. Plaintiff did not use the argument to assert that plaintiff met the threshold injury standard. Additionally, the Court instructed the jury on the correct threshold injury standard separate and distinct from a showing that plaintiff was generally injured as a proximate result of the drivers' negligence. Furthermore, the jury heard testimony from Plaintiff, plaintiff's husband, and plaintiff's doctor regarding the injuries she claimed to sustain, the seriousness of the injuries, and how those injuries affected plaintiff's life. Even if the Plaintiff's argument was improper, the Court held that argument could have been cured by a curative instruction, which defendant failed to request. In sum, the Court of Appeals opinion came down to procedural errors.