Michigan Court of Appeals; Docket No. 158040; Unpublished
Judges Fitzgerald, Michael J. Kelly, and Post; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Work Loss Benefits: Nature of the Benefit [§3107(1)(b)]
TOPICAL INDEXING:
Evidentiary Issues
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals affirmed a judgment entered in favor of plaintiff in this case for no-fault first-party wage loss coverage.
Plaintiff’s physician had found plaintiff to be disabled from his employment as a result of automobile accident injuries and plaintiff received wage loss benefits. Eighteen months after the accident, the defendant insurer directed plaintiff to be examined by a physician of the insurer's choosing. This physician found that if plaintiff performed certain physical therapy exercises, he would be able to return to work. Plaintiff did not follow the recommendations and claimed continued disability. Two months later, the defendant insurer discontinued wage loss and allowable expense coverage and requested that plaintiff submit to an examination under oath, which the plaintiff refused. Plaintiff subsequently filed a lawsuit and ultimately prevailed at trial on the issue of entitlement to wage loss benefits.
The Court of Appeals affirmed the judgment of the trial court. First, it rejected defendant's argument that the trial court abused its discretion in excluding portions of testimony from one of plaintiff s consulting physicians, as the excluded testimony did not relate to plaintiffs ability to work. Second, the court found the trial court's denial of defendant's motion for a directed verdict to be proper. The insurer claimed that it was entitled to directed verdict because of plaintiff s refusal to appear for the examination under oath. The Court of Appeals upheld the trial court's denial of this motion on several grounds. First, the motion for directed verdict was premature, as the court had not heard testimony regarding plaintiffs refusal to undergo the examination. Second, the court found that plaintiffs deposition in the litigation substantially fulfilled the examination requirement under the policy. Third, the court found it was questionable as to whether the examination under oath requirement, as set forth in defendant's policy, applied to the section providing no-fault first-party coverage.
Defendant also claimed that plaintiff’s counsel had improperly stated in closing argument that plaintiff had no other source of income other than the wage loss benefits, contrary to a ruling of the trial court on defendant's motion in limine. While the Court of Appeals agreed that the statement made in closing argument was improper, it found the error to be harmless because the point was briefly mentioned and was not repetitive. Furthermore, defendant had failed to raise a contemporaneous objection to the comment. Therefore, the court found that the trial court's denial of defendant's motion for a mistrial was not in error.
