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Synergy Spine and Orthopedic Surgery Center, LLC, et al v American Country Ins Co (COA – UNP 7/15/2021; RB #4292)

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Michigan Court of Appeals; Docket #350549; Unpublished
Judges Riordan, Kelly, and Shapiro; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence


STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
Allowable Expenses: Causation Requirement [§3107(1)(a)]
Reasonable Proof Requirement [§3142(2)]
General / Miscellaneous [§3142]

TOPICAL INDEXING:
Case Evaluation – Accept/Reject in PIP Cases
Evidentiary Issues


SUMMARY:
In this unanimous unpublished per curiam decision (Kelly, concurring), the Court of Appeals affirmed the trial court’s various rulings before, during, and after trial in Plaintiffs Synergy Spine and Orthopedic Center, LLC and Silver Pine Imaging, LLC’s (“Plaintiffs,” collectively, or “Plaintiff Synergy” and “Plaintiff Silver Pine,” individually) first-party action against Defendant American Country Insurance Company (“American Country”).

Plaintiffs’ patient, Laquita Jackson-Davis, was involved in a motor vehicle collision and received treatment from Plaintiffs for her injuries. She then assigned her right to no-fault PIP benefits for said treatment to Plaintiffs, who sought reimbursement from American Country. American Country denied Plaintiffs’ claims, taking the position that Jackson-Davis’s injuries were not caused by the subject collision. Plaintiffs, in turn, filed the underlying first-party action against American Country. A few days before trial, the trial court ruled that American Country would not be allowed to introduce any evidence regarding a fraudulent claim for PIP benefits Jackson-Davis made in an unrelated first-party action against American Country approximately two years prior. At the same hearing, the trial court ruled that Plaintiff Synergy could introduce a $69,000 medical bill for a surgery it performed on Jackson-Davis just a few weeks prior, even though the statutorily allotted “30-day period for paying such bills under MCL 500.3142 had not yet expired.”

On the second day of trial, American Country called Jackson-Davis as a witness, and after approximately 20 minutes, Jackson “los[t] her temper,” making the following remarks:

“I told you that, sir. But the only thing that I’ve done -- I’ve paid for all insurance with your company, American Country, so I don’t understand. Why are you-all taking me through this? My husband has paid you, and I’ve paid you, so why are you-all taking me through this? This is so unfair. I done had surgery. We’re paying just thousands and thousands. Why don’t you pay these people their money and quit dragging me through this? This is unfair.

Do you know what I’ve gone through to come here today? Then you-all put me on this stand, and you up here confusing me. This is unfair. We’ve paid you thousands of dollars for you to represent us. We done nothing wrong, so quit putting me on the stand. . . . Please. I want to go home. I’m in pain. Quit -- quit bashing me.”

That same day, the trial court decided on the following jury instruction regarding the causation requirement for entitlement to PIP benefits:

“In order for Defendant to be liable under the Michigan No-Fault Law for the services provided to Ms. Jackson-Davis, there must be a sufficient causal connection between injuries Ms. Jackson-Davis sustained in the motor vehicle accident and the services provided to Ms. Jackson- Davis.

The injuries Ms. Jackson-Davis sustained in the motor vehicle accident need not be the sole or only cause of Ms. Jackson’s need for services; rather the law in Michigan provides that a sufficient causal connection exists if the motor vehicle accident is one of the causes for her need for services, even though there may be other independent causes. Therefore, if you determine that the motor vehicle accident was one of the causes Ms. Jackson-Davis needed -- one of the reasons Ms. Jackson-Davis needed the services provided to her, then a sufficient causal connection has been established under the law to render Defendant liable for those services.”

The next morning, American Country moved for a mistrial, arguing that Jackson-Davis’s outburst the previous day improperly swayed the jury, but the trial court denied its motion. Then, in closing arguments, Plaintiffs’ counsel began by saying, “At the beginning of this case, I told you that it was about the payment of over $300,000 in medical bills that the insurance company is trying to stick Ms. Jackson-Davis with,” to which American Country objected, but which objection was overruled by the trial court. Ultimately, the jury returned a verdict in favor of Plaintiffs, and American Country filed a motion for a new trial, remitter, and to strike case evaluation sanctions, all of which the trial court denied.

On appeal, The Court of Appeals first rejected American Country’s argument that the trial court erred by giving a jury instruction regarding the causation requirement under MCLs 500.3105(1) and 500.3107(1)(a) that did not include the “incidental, fortuitous, or but for” language used by the Supreme Court in Thorton v Allstate Ins Co, 425 Mich 643 (1986) to describe that requirement. This is because the subject motor vehicle collision was a straightforward collision and the “incidental, fortuitous, or but for” language is only necessary in cases featuring a question as to whether a plaintiff’s injuries actually arose out of the use of a motor vehicle as a motor vehicle—e.g. Oostdyk v Auto Owners Ins Co, unpublished per curiam opinion of the Court of Appeals, issued December 30, 2014 (Docket No. 317221), in which the Court held that a child’s injuries were caused by a seizure he suffered while on a school bus, not by the use of the school bus as a motor vehicle; or Thornton v Allstate Ins Co, 425 Mich 643 (1986), in which a taxi cab driver’s injuries were caused by an armed robber, not by the use of his taxi cab as a motor vehicle.

In this case, defendant argues that the trial court’s causation instruction was erroneous because it omitted the "incidental, fortuitous, or ‘but for’ " language required by our Supreme Court. This argument misses the mark. As noted previously, the "incidental, fortuitous, or ‘but for’ " test applies when a person suffers injuries that are not clearly caused by the use of a motor vehicle as a motor vehicle. For example, in the case discussed in the trial court, Oostdyk v Auto Owners Ins Co, unpublished per curiam opinion of the Court of Appeals, issued December 30, 2014 (Docket No. 317221), a child was injured when he suffered a seizure on a school bus. The no-fault insurer argued that the school bus was merely the location of the injuries, and that the connection between the use of the school bus and the injuries was chance. Similarly, in Thornton, the taxicab driver was injured by an armed robber. Our Supreme Court explained that the connection between the use of the taxicab and the injuries was merely "incidental, fortuitous, or ‘but for.’" Thornton, 425 Mich at 660.

Here, however, there is no dispute that the March 2017 accident in which Jackson was involved was a straightforward motor-vehicle accident. The only question at trial was whether her injuries and corresponding medical treatment arose out of, i.e., was caused by the March 2017 accident or another accident. In such a case, the trial court properly instructed the jury that "the law in Michigan provides that a sufficient causal connection exists if the motor vehicle accident is one of the causes for her need for services, even though there may be other independent causes. ”

The Court of Appeals next held that, although the trial court abused its discretion by refusing to allow American Country to question Plaintiffs’ patient about her fraud in a former first party action—which it should have been allowed to do to show Jackson-Davis’s potential bias against American Country, and because it tended to undermine Jackson-Davis’s credibility as a witness—this was harmless error because this case involved only a “medical dispute about whether [Plaintiffs’ patient’s] injuries were medically attributable to the [subject motor vehicle collision.” Therefore, Plaintiffs’ patient’s credibility was not at issue so much as the credibility of expert witnesses—i.e. Plaintiffs’ patient’s physicians.

Nonetheless, despite the fact that the trial court abused its discretion, we conclude that reversal is not warranted because the error was harmless. Plaintiff are correct to note that this case was almost entirely a medical dispute about whether Jackson’s injuries were medically attributable to the March 2017 accident. Thus, the case hinged upon the credibility of the expert witnesses, not Jackson’s credibility. Moreover, Jackson’s testimony was brief and only established a few straightforward facts before she was excused as a witness, without objection from defendant. It is therefore not entirely clear from the existing record that defendant would have even asked Jackson about her alleged fraud if the trial court had ruled it could do so before trial. Simply put, given the unusual manner in which Jackson testified and was abruptly excused, it would be speculative to conclude that a new trial is warranted for this issue.

The Court of Appeals next held that the trial court did not err in denying American Country’s motion for a mistrial due to Jackson-Davis’s outburst on the second day of trial, because although the outburst may have made Jackson-Davis a sympathetic witness to the jury, “the jury must have been aware that she was not a party to the case” and that she would not become personally responsible for the medical bills at issue if it were to have rendered a verdict in favor of American Country. The fact that the jury returned a verdict for less than what Plaintiffs’ claimed in damages further suggested that it was not unduly swayed by Jackson-Davis’s outburst.

First, as explained in the discussion of Issue VII, the jury returned a verdict for less than plaintiffs’ request. This fact suggests that the jury was not unduly swayed by prejudice in favor of plaintiffs. Second, Jackson’s testimony lasted only about 20 minutes during the four-day trial. It was therefore not likely to overshadow the remaining presentation of evidence. Third, while the outburst undoubtedly portrayed Jackson as a sympathetic witness, she did not go so far as to assert that she would be personally responsible for all of her medical bills if the jury did not find in favor of plaintiffs. Indeed, the jury must have been aware that she was not a party to the case, and no evidence was presented to indicate that she would be personally responsible for her medical bills. Thus, the jury was unlikely to believe that Jackson would somehow be aided if it found in favor of plaintiffs. Fourth, there is no particular reason to conclude that a curative instruction, if it had been provided by the trial court, would not have been able to cure any prejudice to defendant. See Willett v Ford Motor Co, 400 Mich 65, 72; 253 NW2d 111 (1977) (explaining that a mistrial is not warranted if an instruction would prevent prejudice).

The Court of Appeals next held that the trial court did not err by allowing Plaintiff Synergy to introduce a $69,000 medical bill at trial that was not yet overdue pursuant to MCL 500.3142(2). In so holding, the Court of Appeals relied on McMillan v ACIA, 195 Mich App 463 (1992), which stands for the proposition that proof of a claim for benefits can be presented during trial, and that the jury’s award of damages can be based at least partially on such a claim.

Here, defendant’s argument is well-taken that it was unfairly blindsided by the trial court’s decision to allow plaintiff Synergy to introduce evidence of the March 2019 surgery and seek damages for it. As noted in Williams, MCL 500.3142 provides a 30-day "legislative grace period" for a no-fault insurer to investigate a claim. Defendant clearly did not receive that 30-day grace period, given that it was informed of the claim—at the earliest—merely one day before trial, and the case proceeded to verdict about one week later. The obvious implication of the fact that benefits are not ‘overdue’ until the 30-day "legislative grace period" has expired is that benefits are not actually due until the thirtieth day. Thus, when the jury returned a verdict in favor of plaintiff Synergy—which may have included damages for the March 2019 surgery—it resulted in a situation in which benefits became due before the thirtieth day.

However, this Court has indicated that such a situation is not prohibited by the no-fault act. In McMillan v ACIA, 195 Mich App 463; 491 NW2d 593 (1992), the plaintiff sued the no-fault insurer on September 6, 1986, for benefits owed as the result of a February 1984 accident. Id. at 465. The plaintiff prevailed at trial, but the jury did not award him the full amount of damages that he sought. Id. On appeal, he argued that the trial court erred by denying his motion for no- fault penalty interest. Id. at 467. This Court agreed in part, reasoning as follows:

No-fault penalty interest is not available until the no-fault claimant has presented the insurer with reasonable proof of the claim and thirty days have passed without the insurer paying the claim. [MCL 500.3142.] As plaintiff concedes, the jury could have found that reasonable proof of plaintiff’s claim had not been presented to ACIA until sometime during the trial. Although we cannot say with certainty at what point during the trial ACIA had reasonable proof of plaintiff’s claim, reasonable proof must have been presented to ACIA by the close of evidence on September 8, 1989. Therefore, as ACIA concedes, plaintiff is entitled to no-fault penalty interest from October 8, 1989. [Id. at 467-468.]

Although McMillan was a relatively short opinion and only included a one-paragraph analysis of this issue, it reasonably stands for the proposition that proof of a claim for benefits can be presented during trial. Further, while not expressly stated in McMillan, it is reasonable to infer that the jury’s award of damages was at least partially based on the plaintiff’s claim that was submitted to the no-fault insurer during trial. Thus, applying McMillan here, the trial court did not err by allowing plaintiff Synergy to introduce evidence of the March 2019 surgery and accordingly seek damages for it, even if defendant only became aware of that claim immediately before or during trial.

The Court of Appeals next rejected American Country’s argument that the trial court erred in awarding case evaluation sanctions, which American Country argued should not have been awarded because the jury’s verdict only exceeded the case evaluation award by more than 10% because the jury factored in the aforementioned $69,000 bill, which was not submitted to the case evaluation panel. The Court of Appeals pointed out, however, that while Plaintiff Synergy submitted the $69,000 bill to the jury but not to the case evaluation panel, it did not submit a $95,000 bill to the jury which it had submitted to the case evaluation panel, and which the case evaluation panel factored into its award.

With that in mind, such concerns are irrelevant to this case. Defendant acknowledges that plaintiff Synergy submitted a claim for about $95,000 to the case-evaluation panel arising from a December 8, 2017 knee surgery, but it chose not to present that claim to the jury. Thus, although plaintiff Synergy was able to add the approximately $69,000 shoulder surgery to the claims presented to the jury, it also subtracted the approximately $95,000 knee surgery. Consequently, the ‘inflation’ concerns discussed previously were not clearly present here.

The Court of Appeals next rejected American Country’s argument that the trial court erred by refusing to grant its motion for a new trial based on Plaintiffs’ counsel’s opening remark during closing statements. Although the trial court erred by overruling American Country’s objection to Plaintiffs’ counsel’s statement, such error did not warrant a new trial because (1) the statement was an isolated infraction and “did not reflect a pattern by plaintiffs’ counsel of trying to convince the jury that defendant was trying to leave Jackson-Davis with the medical bills, force her into bankruptcy, and so forth,” and (2) “the jury did not award plaintiffs the full amount of damages that they requested, which suggests that the jury was not necessarily swayed by [the statement].”

Lastly, the Court of Appeals rejected American Country’s argument that the verdict in favor of Plaintiff Silver Pine should have been reduced to “the amount that it originally billed for [sic] MRI’s to Jackson[-Davis]’s knees and brain,” because “the jury did not return specific findings detailing its verdicts in favor of plaintiffs, so it is impossible to determine whether the jury verdict for plaintiff Silver Pine in the amount of $28,400 included the $15,900 now challenged by defendant.”

Justice Kelly concurred in result only.

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