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Nowyorkas v Farm Bureau Mutual Insurance; (COA-UNP, 5/24/1996; RB #1858)

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Michigan Court of Appeals; Docket No. 168726; Unpublished  
Judges Doctoroff, Michael Kelly, and Markey; Unanimous; Per Curiam 
Official Michigan Reporter Citation:  Not Applicable; Link to Opinion alt   


STATUTORY INDEXING: 
Work Loss Benefits: Calculation of Benefits [§3107(1)(b)]  
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)] 
Aggravation of Preexisting Conditions [§3105(1)]

TOPICAL INDEXING:  
Not Applicable    


CASE SUMMARY: 
In this unanimous unpublished per curiam Opinion, the Court of Appeals reversed a jury verdict in favor of plaintiff in a wage loss PIP trial, because the trial court charged the jury under S JI2d 5O. 11 that if the jurors were unable to separate damages for injuries caused by the automobile accident from those which were pre-existing, then the entire amount of plaintiff s damages must be assessed against the defendant PIP insurer. In disapproving this instruction, the court held that:

"This instruction relieved plaintiff of his burden of proof as prescribed by the no-fault act. Williams v DAIIE, 169 Mich App 301 (1988) held that an injury which could not be attributed to a single identifiable event was excluded from coverage under the no-fault act. The application of SJI2d 50.11 is incompatible with that mandatory requirement. The trial court's modification and delivery of SJI2d 50.11 is reversible error. We note that plaintiff claims a similar instruction was approved in Yax v Aetna Casualty & Surety Company (Item No. 1485), an unpublished per curiam of the Court of Appeals. The argument is without merit because the Yax court approved a modified version of SJI2d 50.10, not SJI2d 50.11, and because the unpublished opinion is nonprecedential. The instruction here was likely to mislead and confuse the jury with respect to the applicable law.  The question of causation was hotly contested at trial. Plaintiff admits there was substantial evidence that he experienced problems with his left shoulder before the accident. Since the result might well have been different had the erroneous instruction not been given, the error cannot be harmless."


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