Akyan v. Auto Club Ins. Ass'n, Docket No. 155501

• Decision Date: 20 September 1994
• Docket Number: Docket No. 155501
• Citation: 207 Mich.App. 92,523 N.W.2d 838
• Parties: Aghavanie AKYAN, Plaintiff-Appellant, v. AUTO CLUB INSURANCE ASSOCIATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 838

523 N.W.2d 838

207 Mich.App. 92

Aghavanie AKYAN, Plaintiff-Appellant, v. AUTO CLUB INSURANCE ASSOCIATION, Defendant-Appellee.

Docket No. 155501.

Court of Appeals of Michigan.

Submitted April 20, 1994, at Detroit.

Decided September 20, 1994, at 9:35 a.m.

Released for Publication Dec. 2, 1994.

Mark L. Bellamy, Fraser, for plaintiff.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by Onjel L. Benson (John A. Lydick, of counsel), Detroit, for defendant.

Before NEFF, P.J., and WHITE and STACEY, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's grant of a directed verdict and a judgment of no cause of action in favor of defendant in plaintiff's action to recover under her insurance policy for the value of her automobile allegedly stolen and destroyed by fire. We affirm in part, reverse in part, and remand.

Plaintiff owned a 1990 Oldsmobile Silhouette minivan insured by defendant. According to plaintiff, she drove the van to work on a morning in early June 1990, found it missing that afternoon when she attempted to leave work, and, with her brother's assistance, reported it stolen to the police within thirty minutes. The police report indicated that plaintiff made her report on June 6, 1990. However, the vehicle had been found burning at approximately 11:00 p.m. on June 5, 1990, the previous evening. Plaintiff subsequently pleaded no contest to a criminal charge of fraud. However, when defendant refused to pay for the loss of the car, citing material misrepresentation, plaintiff sued for breach of contract.

At trial, plaintiff's counsel stated that he would show that the police report date of June 6, 1990, was an error, and also that the car found burning on June 5 was not plaintiff's vehicle. However, plaintiff was the sole witness during the case-in-chief, and did not address these matters. Rather, she testified that her family was not experiencing financial difficulty at the time; that she neither burned her car nor arranged for someone else to steal and burn it; that when she purchased the car on January 31, 1990, it had a sticker price of $22,000, but that she paid $19,212.82 for it with a down payment of $5,000 and a trade-in; that it was approximately four months old, with four thousand miles on it; that she had paid three monthly payments of $374; and that it was "a very good car" and she "loved" it. She also testified that she is a jeweler, and that she used the van to transport her merchandise, as did other jewelers with shops in the same building. Plaintiff, an immigrant who required an interpreter at trial, also repeatedly stated that she does not understand English, and testified that she relied on her brother in making the police report and simply signed it when it was completed. She also stated that she pleaded no contest to the criminal charge because she did not understand that she was charged with a crime, did not understand what was going on, and "[w]hatever my lawyer told me, I did." However, plaintiff acknowledged that she was accompanied throughout the proceedings by her daughter, who was educated in this country and acted as her interpreter.

Defendant moved for a directed verdict on three grounds: (1) that plaintiff had not offered any evidence that the van found on June 5, 1990, was not plaintiff's or that the police report referred to an incorrect date; (2) that plaintiff had not offered any evidence of the van's fair market value on the date of loss; and (3) that plaintiff's no-contest plea was similar to a guilty plea, and, for civil purposes, conclusive evidence of her alleged material misrepresentation to defendant, thus barring her claim.

Plaintiff's counsel admitted that he had not called witnesses, indicating that he intended to present his proofs through the cross-examination of defense witnesses. Concerning the fair market value of the van, he argued that plaintiff had offered sufficient evidence of the van's value to enable the jury to determine its value on the date of the alleged theft. Counsel finally argued that the no-contest plea was admissible, but not conclusive.

The trial court ruled that plaintiff was not required to rebut defendant's defense through proofs in her case-in-chief, allowed plaintiff to reopen her proofs to establish fair market value, and determined that plaintiff's no-contest plea was admissible, but not tantamount to a conclusive factual finding for civil purposes. The court thus denied defendant's motion.

When testimony resumed, plaintiff testified that she did not know how much her van was worth on June 5 and 6, 1990, but that she knew what she had paid for it, that it was about four months old, had four thousand miles on it, that it had no damage or rust and that if someone had approached her at that time wanting to buy it, she would have asked more than $18,000 for it. Plaintiff also testified that she had bought four or five new cars in the sixteen years she has been in this country, each time assisted by her son, who did the negotiating for her.

On the basis of this testimony, defendant again moved for a directed verdict, arguing that the evidence did not indicate fair market value and would only permit a jury to speculate on what the actual value would be. The court granted defendant's motion. Plaintiff now appeals.

I

We agree with defendant that plaintiff had a wide variety of evidentiary options available to her, including expert testimony from an insurance adjuster, bank loan officer, dealer, salesman, or appraiser. We note, however, as does defendant, that expert testimony was not required. Moreover, the question before us, regardless of the presence or absence of such testimony, is whether, considering plaintiff's evidence in the light most favorable to her and granting her the benefit of every reasonable inference that can be drawn from the evidence, the evidence presented was sufficient to establish the van's value at the time of the alleged theft. Rynerson v. Nat'l Casualty Co., 203 Mich.App. 562, 564, 513 N.W.2d 436 (1994). We hold that it was sufficient, and because reasonable minds could differ in regard to whether plaintiff met her burden of proof, the motion should have been denied. Id.

Here, plaintiff's testimony established that on January 31, 1990, the van had a sticker price of $22,000, which was apparently negotiated down to the $19,212.82 actually paid; that the car was approximately four months old when it was allegedly stolen, with four thousand miles on it; that it was a "very good car," with no rust or damage on it; and that plaintiff,...