Facts - Defendant failed to respond to Plaintiff's Requests To Admit under MCR 2.312. Subsequently, the Trial Court entered an Order granting Plaintiff's Motion For Summary Disposition, primarily because Defendant had failed to respond and, consequently, those matters included in the Requests To Admit were deemed conclusively proven. As a result, the admissions established that Defendant had no defense in the case.

In upholding the Trial Court's ruling, the Court of Appeals indicated that a "judicial admission" is considered conclusive and is not subject to contradiction or explanation like an evidentiary admission. Judicial admissions are considered to be beyond further challenge, although any matters deemed admitted must be narrowly construed. Howard v Rodriguez, Michigan Court of Appeals Unpublished Decision dated November 15, 2002, Docket No. 225707.

Recommendation - Requests For Admissions are a valuable discovery tool, which can significantly limit the issues to be litigated. Where possible, Requests For Admissions should be utilized. If a party denies the genuineness of a document or the truth of a matter as requested and if the party requesting the admission later proves the genuineness of the document or the truth of the matter, costs and attorney fees may be awarded.

Facts - Defendant was convicted of assault and battery. Plaintiff (the victim) then brought a civil suit for damages based, in part, on the same act that resulted in Defendant's conviction. The Trial Court, relying on Wheelock v Eyl (393 Mich 74 [1974]), held that evidence of Defendant's conviction could not be introduced in the civil case. The Trial Court also excluded evidence of the conviction pursuant to MRE 403.

In reversing the Trial Court's holding, the Michigan Supreme Court indicated that because the Michigan Rules of Evidence were enacted after the Wheelock decision, the rule announced in Wheelock, at least as it pertains to the use of a conviction in a subsequent civil case, did not survive the adoption of the Michigan Rules of Evidence.

The Court went on to explain that evidence is not inadmissible simply because it prejudicial. It is only when the probative value is substantially outweighed by the danger of unfair prejudice, that evidence is excluded.

The Court expressed no opinion regarding whether pleas of nolo contendre are admissible as substantive evidence in subsequent civil proceedings. Waknin v Chamberlain, 467 Mich 329 (2002).

Recommendation - This decision is a substantial departure from prior case law regarding the use of convictions in a civil action. Although presumably limited in its scope (use of convictions arising from the same incident upon which the civil case is based), the Court appears to have left open for further interpretation, the admissibility of pleas of nolo contendre. That type of plea (no contest) is frequently used to preclude any reference to the criminal action in a civil lawsuit. Stay tuned for further developments.

Facts - Defendant rear ended Plaintiff's truck while Plaintiff was stopped at a red light. Neither vehicle was seriously damaged. The following day, Plaintiff experienced pain, weakness and tingling in her neck, right arm and hand which she attributed to the accident. She saw her family doctor two days later. X-rays of the neck showed no abnormalities. Treatment included physical therapy and anti-inflammatory medications. Plaintiff was eventually diagnosed with a brachial plexus "stretch" injury.

At Trial, the Jury made a finding of "no injury" and returned a verdict of No Cause For Action. The Trial Court denied Plaintiff's Motion For New Trial.

At the Deposition of Plaintiff's expert, Plaintiff's attorney advised his witness not to answer certain questions posed by defense counsel. At the time of Trial, the Court disagreed with counsel's interpretation of its prior Order, and determined that the appropriate remedy was to deny use of the Deposition and require Plaintiff to present the witness at Trial, or in some other way supplement the Deposition. Plaintiff's counsel also argued against admission of auto accident photographs showing little or no apparent damage. The Court of Appeals upheld the Trial Court's admission of such photographs inasmuch as a reasonable relationship did exist between the severity of the crash and the nature and extent of injuries claimed by the occupants. It also agreed with the manner in which expert testimony was required to be presented.

Finally, the Court upheld the Jury's finding of no injury based upon conflicting medical evidence, including Plaintiff's expert's admission that a brachial plexus injury is unlikely to result from a very minor accident. Vanatta v Jinkner, Michigan Court of Appeals Unpublished Decision dated November 15, 2002, Docket No. 231374.

Recommendation - As demonstrated above, every attempt should be made to utilize favorable exhibits, especially those which would relate to Plaintiff's claim of injury.

Facts - This case was previously reported in our July, 2002 newsletter. Plaintiff, Allstate, had sought a determination of its obligation to indemnify its insureds in connection with an underlying wrongful death lawsuit stemming from a shooting death. The Michigan Court of Appeals, in its original Opinion, held that the insured's intentional actions created a direct risk of harm which precluded coverage. The Michigan Supreme Court determined that, to avoid coverage, the consequence of the intended act which created a direct risk of harm, reasonably should have been expected by the insured. A subjective standard was utilized for analysis. The Court found that there was no intentional creation of a direct risk of harm because of the undisputed evidence that the insured believed he was pulling the trigger of an unloaded gun. He had no intention of firing a loaded weapon. In other words, his careless and foolish conduct did not rise to the level of an expectation of harm.

This matter was remanded to the Court of Appeals so that a decision could be made as to Allstate's claim that the insured's actions constituted a criminal act under the policy's intentional act exclusion.

On remand, the Court of Appeals held that Allstate's criminal act exclusion to coverage did, in fact, apply in this case. More specifically, it found that the insured was guilty of manslaughter. That crime only requires proof that the Defendant intentionally pointed the gun at the Decedent and that the Decedent died as a result of the subsequent discharge of the firearm. The general rule is that when a person points a gun at someone as a joke, reasonably believing the gun not to be loaded, pulls the trigger and the gun discharges and kills the victim, he is guilty of manslaughter. The Defendant's belief as to whether the gun was loaded or unloaded is irrelevant. A person should reasonably expect that it is highly likely that injury or death will result from the intentional aiming of a firearm at another person and pulling the trigger. The dissent felt that reasonable minds could differ as to whether death occurred as the natural, foreseeable, expected and anticipated result of the insured's intentional or criminal acts. Allstate v McCarn, et al, (After Remand), 471 Mich 283 (2004).

Recommendation - This particular case was handled by our office. As previously stated, when determining whether an insurance company has an obligation to defend and indemnify its insured, one must evaluate coverage according to the policy language in existence at the time of the incident.

Facts - Plaintiff filed suit to recover damages for injuries sustained in an automobile accident. The Trial Court dismissed her Complaint, concluding that Plaintiff failed to establish that her injuries met the serious impairment threshold. The Court of Appeals, in upholding the Trial Court's decision, indicated that, contrary to Plaintiff's arguments, when considering whether an impairment has affected a person's general ability to lead his or her normal life, it is appropriate to compare Plaintiff's lifestyle before and after the accident.

In this case, Plaintiff did not need to substantially curtail her work as long as she was able to switch between sitting and standing (she was a teacher of special education students). Plaintiff was able to perform most household tasks although she did not do as much lifting and did not stand for extended periods. She could drive for relatively lengthy periods of time. Any claim that, given the degenerative nature of her injury, her condition would worsen in the future, was based on speculation. McCarthy v Stoddard, Michigan Court of Appeals Unpublished Decision dated October 25, 2002, Docket No. 232884.

Recommendation - As this case illustrates, the Michigan Court of Appeals is fairly conservative in their review of claims for serious impairment of body function.

Facts - Plaintiff appealed the Trial Court's Order granting Defendant's Motion For Summary Disposition based upon lack of serious impairment of body function. Plaintiff was involved in an automobile accident and did not seek medical attention immediately. Approximately one week after the accident Plaintiff noticed puffiness in this groin and several weeks later began experiencing pain in the upper back. A myelogram performed six months after the accident revealed a small protrusion in a disc in the thoracic area. A similar protrusion had been detected before the accident.

Laproscopic hernia surgery was performed ten months post-accident. Plaintiff was released to return to work within three weeks thereafter with a lifting restriction for an additional three weeks.

The evidence showed that Plaintiff had objectively manifested injuries, including a protruding disc in the thoracic area of his back and a double inguinal hernia. The Trial Court found that a factual dispute existed as to the nature and extent of Plaintiff's injury, nevertheless the dispute was not material to the determination of whether Plaintiff suffered a serious impairment of body function. Plaintiff was off work for three weeks while recovering from hernia surgery and returned to his regular employment with a lifting restriction that was virtually identical to the restriction under which he worked prior to the auto accident. There was no evidence that Plaintiff missed any work due to his back injury. Plaintiff's physical activities were severely limited prior to the auto accident and were not further limited after the auto accident. Plaintiff's general ability to lead his normal life was not significantly altered by the injuries which he sustained. Biesczk v Bane, Michigan Court of Appeals Unpublished Decision Dated October 25, 2002, Docket No. 233643.

Recommendation - In this case, defense counsel was able to determine from Plaintiff's prior medical file, that the claimant had a multitude of pre-existing medical/physical conditions, which resulted in significant pre-accident limitations. The Court agreed that Plaintiff's current condition was not materially different from that which existed pre-accident. Where possible, a detailed medical history should be obtained for review and analysis.

Facts - Plaintiff was involved in an automobile accident. At the emergency room he was found to have a laceration over his right eye, a contusion on his face, a right orbital wall fracture and two non-displaced fractured ribs. The laceration was sutured and the other injuries did not require treatment. Shortly after the accident, Plaintiff developed urinary incontinence which resolved by itself.

Approximately ten months post-accident, Plaintiff sought treatment for back pain. He had told his family physician that he was experiencing intermittent discomfort which worsened in the last two weeks. He discontinued working as a carpenter. An MRI detected two very small disc protrusions in the lumbar area. Tests were negative in all other respects.

In upholding the Trial Court's grant of Summary Disposition, the Court of Appeals indicated that the evidence showed that Plaintiff had several objectively manifested injuries. The undisputed evidence showed that these injuries healed rapidly and did not require further care. Objective testing with respect to the low back did show the existence of two small herniated discs. However, the condition was described as degenerative and was determined not to be the cause of Plaintiff's right sided pain. The evidence did not establish that Plaintiff's pattern of working only sporadically changed after the accident, or that he was no longer able to engage in activities such as hunting and fishing. Rather, the evidence showed that Plaintiff's general ability to lead his normal life was not significantly altered by the injuries he sustained in the accident. Smith v Townsend, Michigan Court of Appeals Unpublished Decision dated November 12, 2002, Docket No. 234446.

Recommendation - It has been our continuing position that Motions For Summary Disposition based upon lack of serious impairment of body function and/or permanent serious disfigurement should be filed whenever there is a reasonable likelihood that the Court may grant such a Motion.

Facts - This Appeal arises from Plaintiff's claim for uninsured motorist coverage issued by Defendant. The Trial Court held that Plaintiff did not suffer a serious impairment of body function. The serious impairment of body function threshold requirement mandated by statute was properly utilized (Auto Club v Hill, 431 Mich 449 [1988]).

In this particular case, Plaintiff claimed to have experienced aches and pains shortly after the accident. X-rays were negative. Plaintiff had full range of motion. The only objective finding by the emergency room doctor was of mild posterior neck tenderness. Plaintiff was returned to work with no restrictions. At her next hospital visit, Plaintiff complained of continued aches and pains but records indicated that her primary complaint was of nausea from a muscle ache medication.

One of the treating physicians had signed a disability certificate for a one week absence from work. However, that doctor urged his patient to return to her employment and declined to continue treatment because Plaintiff refused to do so.

Subsequently, another examining physician unequivocally stated that he could find no clinical injury to support Plaintiff's subjective complaints of pain. All testing was negative.

Yet another examining physician found that Plaintiff had limited range of motion in her neck, although testing revealed no injury. A lower lumbar EMG showed a left S-1 radiculopathy. Massage therapy was prescribed. The patient reported significant improvement and therapy was discontinued. That particular therapy improved the Plaintiff's ability to work and take care of her children. Shortly thereafter, she was performing her work and household chores.

Plaintiff's primary complaint throughout these proceedings was of neck pain which she maintained, radiated to her arms and legs. However, for one year and four months after the accident, Plaintiff had full range of motion in the neck. On the date of her Deposition Plaintiff testified that she was able to lead her normal life both at work and at home. Her ultimate diagnosis of "cervical spine inflammation" which was made two years after the accident did not rise to the level of a serious impairment of an important body function. There was nothing in the record which established a nexus between the S-1 radiculopathy and the auto accident. Chang v Westfield, Michigan Court of Appeals Unpublished Decision dated October 25, 2002, Docket No. 234507.

Recommendation - The Trial Court Judge emphasized the fact that Plaintiff received no medical treatment for approximately one year and that Plaintiff had never complained of low back until more than one year after the accident. The Court of Appeals found that a significant gap in symptoms and treatment can be important to a determination of serious impairment of body function. Again, a complete medical history should be obtained so that such an analysis can be performed.

Facts - A vehicle being driven by Plaintiff was struck from the rear as traffic slowed for road construction. Plaintiff was taken to the emergency room where she was diagnosed with neck strain. X-rays did not reveal any objective injury. Both an EKG and an MRI performed after the accident were normal. A lawsuit alleging injury to the neck, upper back and shoulders was subsequently filed. Through discovery, it was determined that an alleged TMJ syndrome did not manifest itself for nearly one year after the accident.

Defendant filed a Motion For Summary Disposition, pointing out that the treating dentist's office notes revealed that Plaintiff had exhibited signs of TMJ syndrome, including malocclusion and grinding, several years before the accident. In response to the Motion, Plaintiff relied on an Affidavit of a registered physical therapist who had not been identified as a witness. Plaintiff also submitted her own Affidavit claiming that as a result of the TMJ syndrome she was unable to eat properly and suffered migraine headaches.

In upholding the Trial Court's grant of Summary Disposition, the Michigan Court of Appeals noted that an Affidavit submitted in opposition to or in support of a Motion For Summary Disposition is to be considered only to the extent that the contents would be admissible as evidence to support or deny the grounds stated in the Motion. Because the physical therapist had not been included on Plaintiff's original Witness List, his testimony would not have been admissible at Trial absent an Order of the Court. The Trial Court properly found that the admissible evidence did not create an issue of fact as to whether Plaintiff suffered a serious impairment of body function as a result of the accident. Cuttle v Bare, Michigan Court of Appeals Unpublished Decision dated November 15, 2002, Docket No. 234184.

Recommendation - Typically, the filing of a Motion For Summary Disposition based upon lack of serious impairment of body function will force Plaintiff's counsel to disclose, in more detail, that evidence upon which he or she will rely should the matter proceed to Trial. As illustrated in this case, the Trial Court may well refuse to accommodate Plaintiff's counsel with respect to naming additional expert witnesses and extending discovery to allow for the compilation of new evidence.

Facts - Plaintiff sustained injuries on February 18, 1993 while traveling as a passenger in a motor vehicle which was involved in a collision with an uninsured vehicle. Plaintiff's own personal auto policy provided UM coverage on an excess basis. Under the terms of that policy, the insured was required to given written notice of the accident as well as pertinent details as soon as reasonably possible. The policy also provided that a person making a claim for UM coverage must send the insurer a copy of all suit papers at once, when the party liable for the accident was sued for damages. Finally, that policy provided for subrogation.

The driver of the vehicle in which Plaintiff was a passenger was also insured. That policy contained an Arbitration clause which specified that the insured person must file a demand within three years of the date of the accident to invoke Arbitration. Plaintiff, as a passenger within that vehicle, was considered an insured for purposes of UM coverage.

Plaintiff did file a tort action against the uninsured motorist and received a Default Judgment. More than five years after the accident, Plaintiff made a written request to her own insurer for Arbitration. That request was denied. More than six months later, Plaintiff made a demand upon her driver's insurer for Arbitration, such demand having also been rejected for failure to comply with policy terms.

The Court of Appeals found that, because Plaintiff failed to provide her insurer with notice of and copies of papers related to the suit against the uninsured motorist until more than five years after the accident and more than two years after entry of the Default Judgment in that action, there was no question of fact that she had failed to comply with the contract provision which required Plaintiff to provide notice of her lawsuit "at once". The insurer was prejudiced because any claim which it may have had to seek reimbursement from the owners' insurer was time barred under that policy. Additionally, Plaintiff's failure to give notice deprived her insurer of the opportunity to investigate the claim, cross-examine witnesses and to present its own evidence relative to liability and damages.

The Court rejected Plaintiff's argument that the filing of a claim for first-party benefits on the day after the accident was sufficient to provide notice of potential additional claims including a claim for UM benefits. There was no indication in the record that Plaintiff's claim for first-party benefits mentioned a possible UM claim.

With respect to the owners' insurer, Plaintiff argued that the three year period of limitations did not apply to her because she was not a party to the contract. The Court disagreed, holding that, because UM coverage is optional, the insurance policy as a contractual agreement between the parties, governs coverage and is subject to rules of contract interpretation. The rights of third party beneficiaries are subject to the limitations of the contract. Brooks v State Farm and Auto Club, Michigan Court of Appeals Unpublished Decision dated November 19, 2002, Docket No. 231898.

Recommendation - The above decision illustrates the importance of requiring that an insured specifically comply with all policy requirements before acknowledging the existence of a claim.

Should you have any questions or comments regarding this or any of our newsletters, please feel free to contact us by voice 989.799.3033, e-mail jtc@saginaw-law.com or write to Collison & Collison, P.C., 5811 Colony Drive, North, P.O. Box 6010, Saginaw, MI 48608-6010.

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