Michigan Court of Appeals; Docket # 342087; Unpublished
Judges Ronayne Krause, Meter, and Stephens; 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In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the judgment of no cause of action in regards to the plaintiff’s claims for no-fault PIP benefits, as well as the trial court’s order denying the defendant’s motion for attorney fees. The Court of Appeals rejected the plaintiff’s arguments on appeal that: (1) the trial court coerced the jury’s verdict so it could leave early for a holiday weekend, (2) defense counsel’s remarks during opening statements and closing arguments improperly inflamed the jury, (3) the defense counsel made an improper civic duty argument, (4) the jury’s verdict was against the great weight of the evidence, and (5) the trial court erroneously instructed the jury on the defense of fraud. The Court of Appeals agreed with the plaintiff, however, that defense counsel improperly submitted new evidence during closing arguments that was not presented at trial, but rejected the plaintiff’s argument that this required a reversal of the jury’s verdict. The Court of Appeals also rejected the defendant’s argument on cross-appeal that the jury’s finding of fraud entitled it to attorney fees under MCL 500.3148.
Nanajah Daikia Colston was injured in a motor vehicle collision, and subsequently treated by multiple different physicians. Both Colston’s primary-care physician and a neuropsychologist concluded that the plaintiff was injured in the subject collision, and the plaintiff subsequently sought no-fault PIP benefits from her insurer, Esurance Insurance Company. Esurance referred Colston for an independent medical examination performed by Dr. Leonard Sahn, and Dr. Sahn concluded that Colston “sustained only a muscle strain in the July 2015 accident and did not suffer from any long-term physical or cognitive impairment,” and “took special note of the fact that ‘runners’ had coordinated [Colston’s] care since the accident.” Colston was then seen by a licensed psychologist, who concluded that Colston was not suffering from any traumatic brain injury.
Colston sought reimbursement from Esurance for replacement services performed by her mother, Barbara Stringer, however, surveillance footage of Colston on the dates for which she was claiming benefits did not show her mother ever visiting the house. Based on the conflicting diagnoses and the surveillance footage, Esurance concluded that Colston’s claims for replacement services were fraudulent and discontinued payment. Colston subsequently filed this action for breach of her no-fault policy, and the case proceeded to trial, where a jury ultimately returned a judgment of no cause of action in favor of Esurance.
On Appeal, Colston first argued that the trial court coerced the jury’s verdict so that it could leave early for the Thanksgiving holiday. Jury deliberations began on the Wednesday before Thanksgiving, but the Court of Appeals determined that there was “nothing in the record from which we may conclude that the jury’s finding was based on its desire to conclude deliberations before Thanksgiving.”
Colston argued secondly that the trial court should have granted her a new trial because the defense counsel’s remarks during opening statements and closing arguments improperly inflamed the jury. The Court of Appeals determined that the defense counsel’s statements presented a “central theme of the defense theory . . . that plaintiff and her physicians abused the no-fault system,” and that the statements “were not so inflammatory as to create a concern that the jury acted out of passion, rather than thoughtful consideration of the merits of plaintiff’s claim.”
Colston argued thirdly that defense counsel made an improper civic duty argument in stating:
I know you’re going to look at the facts, and the evidence, and use your common sense, your collective wisdom, and your life experiences, to understand, this is not what the no-fault act was meant for.
The Court of Appeals determined that this statement “did not inject any issued into the jury’s deliberation that were not already before it,” and that, “taken in context, the statement is an argument that plaintiff’s injuries were fabricated . . .”
Colston argued fourthly that she was entitled to a new trial because defense counsel introduced new evidence during closing arguments that was not presented at trial, specifically that Colston was enrolled in a PhD program and that she was therefore not cognitively impaired. The Court of Appeals agreed that the interjection of this evidence during closing arguments was entirely improper, but determined nonetheless that the statement did not require reversal.
First, when plaintiff’s counsel challenged the statement, defense counsel admitted that the statement had no basis in the record. Second, in front of the jury, the trial court strongly admonished defense counsel that the statement was “improper” because it had no basis in the testimony. Finally, the jury was instructed—at the outset of this case—that the attorney’s statements were not evidence and—at the conclusion of the trial—that the evidence consisted only of the witnesses’ testimony and the exhibits. “Jurors are presumed to follow [the trial court’s] instructions, and instructions are presumed to cure most errors.” Zaremba Equipment, Inc v Harco Nat’l Ins Co, 302 Mich App 7, 25; 837 NW2d 686 (2013), quoting People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). There is nothing in the record from which we can conclude that the jury decided this case on counsel’s improper statement, rather than on the evidence properly before it. Therefore plaintiff is not entitled to relief.
Colston argued fifthly that she should have been granted a new trial because the jury’s verdict was against the great weight of the evidence. The Court of Appeals rejected this argument, however, finding that “competent evidence support[ed] the jury’s verdict.”
Lastly, Colston argued that the trial court erroneously instructed the jury on the defense of fraud because “(1) defendant was required to prove fraud by clear and convincing evidence and (2) the trial court did not instruct the jury on defendant’s burden to prove reliance on the misrepresentation and a resulting injury.” The Court of Appeals rejected this argument as well, noting that the burden of proof for a fraud defense is a preponderance of the evidence, and that a defendant need not show reliance or injury.
On cross-appeal, Esurance argued that the trial court erred by denying its motion for attorney fees under MCL 500.3148, MCR 2.114, MCR 2.625, and MCL 600. 2591. In regards to MCL 500.3148, the Court of Appeals determined that the trial court’s determination not to award attorney fees was not outside the range of reasonable and principled outcomes. In regards to MCRs 2.114, 2.625, and 600.2591—which allow a trial court to impose sanctions on a party who brings a frivolous lawsuit—the Court of Appeals determined noted that there was conflicting evidence presented at trial that supported both party’s positions. Therefore, the trial court did not err by declining to impose attorney fees under the various court rules.
