Michigan Court of Appeals; Docket # 347379; Unpublished
Judges Fort Hood, Beckering, and Boonstra; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals first reversed the trial court’s denial of the defendant’s motion in limine seeking to exclude evidence of the defendant’s plea of no contest to criminal charges arising out of the subject motor vehicle collision. In so reversing, the Court of Appeals determined that the trial court misinterpreted the term “claim” in MRE 410(2) to mean any assertion of right or fact, as opposed to a cause of action. The Court of Appeals next vacated in part the trial court’s denial of the defendants’ motion to exclude evidence of insurance coverage pursuant to MRE 411. The trial court instructed the plaintiff’s counsel that he could ask, on cross-examination, whether the defendants’ expert witness was being paid and by whom, but could not ask, “did the [defendants’] insurance company pay you[?]” The trial court’s subsequent order as written, however, seemingly allowed the plaintiff’s counsel to ask just that: “did the [defendants’] insurance company pay you[?]” Thus, the Court vacated a portion of the trial court’s order but affirmed the remainder of the order setting forth the parameters of permissible reference to liability insurance.
The plaintiff, Michael Morey, and his wife, Marilyn Louise Larock, were rear-ended by a motor vehicle being driven by the defendant, Theodore Arens. Larock was killed in the crash and Morey was injured, and he subsequently sued Arens in his individual capacity and as personal representative of his wife’s estate. Prior to trial, Arens filed a motion in limine seeking to exclude any reference to the related criminal proceeding or to insurance coverage. Morey opposed the motion, arguing that, “should Theodore continue to deny liability for the accident, the plea would be admissible as a prior inconsistent statement to impeach him,” and in reply, Arens “contended that the only exception to MRE 410(2)’s prohibition against admitting or using evidence of the no-contest plea ‘is when the evidence is offered to support a defense against a claim asserted by the person who entered the plea’”—in other words, the only exception applies in cases where the individual who entered the plea is the plaintiff.
As for the admissibility of evidence of insurance coverage, Morey argued that he should be entitled to elicit evidence of insurance on cross examination of Arens’s expert witness to suggest bias—specifically, by asking whether Arens’s insurance company was paying the expert. The trial court ultimately informed Morey that he could not ask Arens’s expert directly whether Arens’s insurance carrier was paying him, but that he could ask “who” was paying him. Ultimately, the trial court issued an order granting in part and denying in part defendants’ motion in limine. As to references of insurance, the order stated:
[Morey’s attorneys are not to introduce evidence or testimony, or in any way bring to the jury’s attention] [t]he wealth, income, liability insurance or assets of the Defendants, and/or their ability to pay any particular verdict or judgment, except by Plaintiff for impeachment purposes in the event that Defendants, their witnesses or attorney first indicate that Defendants payment of a verdict or judgment would create a financial hardship.
The order included a final provision, however, which denied Arens’s request to exclude evidence of insurance coverage “‘with regard to Defendants’ request. . . to preclude Plaintiff’s attorney from asking on cross examination whether Defendants’ expert witnesses were compensated for their services by Defendants’ liability insurance carrier.’”
The trial court’s order also denied Arens’s request to exclude evidence of his no-contest plea, reading the word “claim” broadly to encompass not only a cause of action, but also any assertion of fact. In other words, the trial court determined that Arens’s denial of liability constituted a “claim” under MRE 410(2).
On appeal, Arens first argued that the trial court abused its discretion by denying his motion in limine to exclude evidence of his no-contest plea in the related criminal matter. The Court of Appeals agreed, noting that the trial court misinterpreted the term “claim” in MRE 410(2).
The disagreement between the parties regarding applicability of MRE 410(2) centers on the word “claim.” The trial court read the word broadly to encompass not only a cause of action, but also any assertion of right or fact. However, such a broad interpretation of “claim” for purposes of MRE 410(2) is not supported by the context of the word’s use or by concerns animating the rule’s current form and the Supreme Court’s original intent.
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In other words, if a person who entered a no-contest plea to a criminal charge then files a civil lawsuit, the defendant in the civil suit may use evidence of the now-plaintiff’s no-contest plea as a defense. This construction of MRE 410(2) is supported by the history of MRE 410.
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In light of the foregoing, we conclude that the trial court erred in construing the word “claim” in the phrase “to support a defense against a claim asserted by the person who entered the plea” for purposes of MRE 410(2), and as such, it abused its discretion by denying defendants’ motion in limine to exclude evidence of Theodore Arens’ no-contest plea.
Arens next argued “that the trial court erred by denying their motion to exclude evidence of insurance coverage pursuant to MRE 411, and specifically, that the court erred in concluding that plaintiff could admit evidence of insurance under the guise of showing bias on the part of defendant’s expert witness.” The Court of Appeals noted that while the trial court purported to grant Arens’s motion, its order included a final provision which denied the motion ‘“with regard to Defendants’ request. . . to preclude Plaintiff’s attorney from asking on cross examination whether Defendants’ expert witnesses were compensated for their services by Defendants’ liability insurance carrier.’” The order thus allowed Morey’s counsel to do exactly what the trial court instructed it not to do: directly ask whether Arens’s insurer was compensating his expert witness. The Court of Appeals thus vacated that provision but affirmed the rest of the trial court’s order.
However, as a final provision, the court denied the motion “with regard to Defendants’ request. . . to preclude Plaintiff’s attorney from asking on cross examination whether Defendants’ expert witnesses were compensated for their services by Defendants’ liability insurance carrier.” This provision seems to allow what the court made clear to plaintiff’s attorney he could not do. Although the court told plaintiff’s attorney he could not directly cross-examine defendants’ expert witness on whether defendants’ liability insurance carrier was paying him, the final provision seems to allow precisely that. While questions directed toward the fact that the defense is paying an expert’s fees are entirely appropriate, questioning a witness outright if he or she is being paid by defendants’ insurance carrier would unnecessarily inject the issue of insurance into the case if the expert is not, in fact, being paid by the defendants’ insurance carrier. For example, the expert could receive payment from defendants or defense counsel’s law firm. Further, as aptly noted in Longhofer, courts are free to restrict the impeachment to a reference to the witness’s employment “by the defense,” without allowing mention of insurance. Evidence, Vol. I, § 411.2, p 675.
“A court speaks through its written orders and judgments, not through its oral pronouncements.” Simcor Constr, Inc v Trupp, 322 Mich App 508, 522; 912 NW2d 216 (2018). Here, the court’s order, as written, ostensibly allows plaintiff’s attorney to do what the court said he could not do, and what MRE 411 prohibits: ask outright if the liability insurance carrier is footing the bill for defendant’s expert, rather than asking open-endedly who is paying defendants’ expert. Thus, we vacate that portion of the trial court’s order denying defendants’ request “to preclude Plaintiff’s attorney from asking on cross-examination whether Defendants’ expert witnesses were compensated for their services by Defendants’ liability insurance carrier,” but affirm the remainder of the trial court’s order setting forth the parameters of permissible reference to liability insurance. The trial court is free to make evidentiary rulings during trial that are consistent with MRE 411 and not unduly prejudicial.
