Michigan Court of Appeals; Docket #313627; Unpublished
Judges Jansen, Owens, and Shapiro; 2-1 (Judge Owens dissenting); Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
Link to Dissent
The Michigan Supreme Court denied leave to appeal on 5/20/2015; Link to Order
STATUTORY INDEXING:
Causation Issues [§3135]
Evidentiary Issues [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this 2-1 unpublished per curiam Opinion (with Judge Owens dissenting) involving plaintiff’s claims for noneconomic loss under MCL 500.3135, the Court of Appeals held: 1) the trial court properly denied defendant insurer’s motions for summary disposition, directed verdict, new trial, and JNOV because plaintiff presented sufficient evidence to create a question of fact on the issue of proximate cause, and 2) the jury verdict for plaintiff was not against the weight of the evidence.
In so holding, the Court of Appeals found it significant that: 1) the doctors who treated plaintiff before and after the accident testified about plaintiff’s pre-existing back problems, and one doctor testified that “the temporal relationship between the motor vehicle accident and the onset of symptoms, the correlation with the radiologic studies that, indeed, the motor vehicle accident … is the causative factor for me to perform surgery …” and 2) defendant offered contradictory testimony from only one doctor, who said that plaintiff was exaggerating his symptoms and his problems were not the result of the accident.
Plaintiff was in an auto accident with defendant and went to his doctor complaining of back pain. Plaintiff had been diagnosed with lumbar pathology prior to the accident and had undergone physical therapy for it. After the accident, he underwent lumbar spinal fusion surgery. Plaintiff filed an action against defendant for noneconomic damages under §3135. Defendant insurer did not dispute that plaintiff’s claimed injuries met the serious impairment threshold in §3135; rather, defendant disputed whether the accident was the proximate cause of plaintiff’s injuries. Defendant moved for summary disposition, arguing that plaintiff could not show the accident was a proximate cause of his back injury. The trial court denied defendant’s motion and the case went to trial. A jury awarded plaintiff $150,000, finding that: 1) defendant was negligent; 2) plaintiff was injured; 3) defendant’s negligence was a proximate cause of plaintiff’s injury; and 4) plaintiff’s injury resulted in a serious impairment of body function. Defendant filed motions for a new trial, directed verdict, or JNOV, arguing the damages were excessive and the verdict was against the great weight of the evidence. The trial court denied the motions.
Affirming the trial court’s decision, the Court of Appeals rejected defendant’s argument that the proximate cause issue should not have gone to the jury. The court said:
“The question of proximate causation calls for an inquiry into ‘whether the result of conduct that created a risk of harm and any intervening causes were foreseeable.’ … Both at the summary disposition stage and at the JNOV motion, we must consider the evidence in the light most favorable to the non-moving party. … In the instant case, plaintiff offered causation opinion testimony from two physicians. Defendant offered contrary expert testimony, which the jury apparently rejected.”
The Court of Appeals noted it was particularly disinclined to overturn the jury’s findings because the jury had been erroneously instructed that plaintiff had to prove proximate cause by “clear and convincing” evidence.
Accordingly, the Court of Appeals concluded the trial court did not err in its ruling.
In a separate dissenting opinion, Judge Owens said the evidence, when viewed in a light most favorable to plaintiff, was insufficient to support the jury’s finding that the accident caused or aggravated plaintiff’s pre-existing back problems.
