Argenta v. Shahan

• Decision Date: 19 September 1984
• Docket Number: 66927,Docket Nos. 66840
• Citation: Argenta v. Shahan, 354 N.W.2d 796, 135 Mich.App. 477 (Mich. App. 1984)
• Parties: Robert ARGENTA, Plaintiff-Appellee, v. Opal SHAHAN, Defendant-Appellant. Robert ARGENTA, Plaintiff-Appellant, v. Opal SHAHAN, Defendant-Appellee. 135 Mich.App. 477, 354 N.W.2d 796
• Court: Court of Appeal of Michigan

Page 796

354 N.W.2d 796

Robert ARGENTA, Plaintiff-Appellee, v. Opal SHAHAN, Defendant-Appellant.

Robert ARGENTA, Plaintiff-Appellant, v. Opal SHAHAN, Defendant-Appellee.

Docket Nos. 66840, 66927.

135 Mich.App. 477, 354 N.W.2d 796

Court of Appeals of Michigan.

Submitted March 7, 1984.

Decided June 19, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 481] Frederick W. Lauck, Troy, for plaintiff-appellee.

Law Offices of Daniel Zolkower, Southfield, by Conrad J. Ceglowski, Southfield, for defendant-appellant.

Before T.M. BURNS, P.J., and HOOD and DEMING, ^* JJ.

PER CURIAM.

This case arises out of an automobile accident. Defendant admitted negligence ¹ and plaintiff brought suit, claiming that he suffered back injuries which were a serious impairment of a body function. The jury returned a verdict in plaintiff's favor in the amount of $340,500. The trial court partially granted defendant's motion for remittitur, reducing the award to $165,500. Both plaintiff and defendant appeal.

On appeal, defendant first argues that the trial court improperly instructed the jury. The trial court denied defendant's request to give the standard jury instruction on mitigation of damages. SJI2d 53.05.

The trial court correctly refused to instruct the jury pursuant to SJI2d 53.05 since defendant did not carry her burden. Defendant had the burden to show that plaintiff did not use every reasonable effort within his power to minimize damages. Williams v. American Title Ins. Co., 83 Mich.App. 686, 697, 269 N.W.2d 481 (1978). There was no evidence before the jury which indicated that plaintiff's injury might have been lessened by more frequent [135 MICHAPP 482] visits to a doctor or by surgery. Defendant's own medical witness stated that there was no reason to perform surgery. Defendant's theory at trial was that plaintiff had no injury whatsoever, not that he failed to mitigate his damages. Defendant was not entitled to an instruction on mitigation of damages.

Defendant next argues that the trial court should have placed the issue of serious impairment of body function in context by reading M.C.L. 500.3135(1); M.S.A. 24.13135(1), including the other two exceptions to the abolition of tort liability, namely "death" and "permanent serious disfigurement". The trial court correctly declined to do so. Plaintiff survived the accident, and advanced no disfigurement claim. Reference to the alternative thresholds of tort liability would have been irrelevant and caused confusion. Karas v. White, 101 Mich.App. 208, 211, 300 N.W.2d 320 (1980).

Defendant next argues that she was denied a fair trial by a deliberate and calculated attempt by plaintiff's attorney to create prejudice, bias, and sympathy despite the fact that the trial court specifically found that plaintiff's attorney was not guilty of any misconduct. Defendant points to six areas which she alleges illustrate misconduct by plaintiff's attorney. In some instances, a defense objection was sustained by the trial judge. In others, no objection was raised. A request for a curative instruction or a motion for a mistrial is requisite to appellate review of a claim of attorney misconduct unless the misconduct "may have caused the result or played too large a part and may have denied a party a fair trial". Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 103, 330 N.W.2d 638 (1982). The record does not show that a course of misconduct was so persistently followed [135 MICHAPP 483] that a charge of the court in an effort to obviate prejudice would have been useless. Reetz, supra, p. 112, 330 N.W.2d 638.

Defendant first points to plaintiff's attorney's remark concerning a drummer with broken wrists. Plaintiff's attorney used this argument to illustrate an example of a serious body impairment. One of the jurors was a drummer. It was error to apply a hypothetical set of facts to the jurors personally. Clark v. Grand Trunk W. R. Co., 367 Mich. 396, 400, 116 N.W.2d 914 (1962). Defendant did not object to this remark which could have been cured by a cautionary instruction. Defendant's failure to object, therefore, precludes appellate review.

The record also does not show that plaintiff's attorney improperly appealed to the jury for sympathy. The references to plaintiff's parents were not error since they served to explain why plaintiff kept working despite his injuries. Counsel's argument that it was difficult for plaintiff to take his claim to trial and testify was an attempt to bolster plaintiff's credibility. Defendant's case was based on the premise that plaintiff was malingering. Plaintiff's attorney properly argued that his client was not malingering. Firchau v. Foster, 371 Mich. 75, 78, 123 N.W.2d 151 (1963). Plaintiff's attorney had the right to argue that his witness spoke the truth. Reetz, supra, 416 Mich. p. 109, 330 N.W.2d 638.

Plaintiff's attorney also did not improperly attack defense counsel. Most of these remarks were objected to. The trial court properly cured any error caused by these remarks. These remarks did not constitute reversible error. Wayne County Bd. of Road Comm'rs v. GLS Leasco, 394 Mich. 126, 136-137, 229 N.W.2d 797 (1975).

Plaintiff's attorney also properly referred to the [135 MICHAPP 484] accident in his opening statement. Even though defendant admitted liability, the facts surrounding the collision remained relevant to the likelihood that plaintiff suffered a serious back injury. MRE 401. Defense counsel even commented on the accident and cross-examined plaintiff on the details of the accident.

Plaintiff's attorney also properly cross-examined one of defendant's medical experts, Dr. Larry Blau. Plaintiff's attorney asked Dr. Blau whether he was aware that his evaluation was for purposes of litigation. Surprisingly, Dr. Blau exhibited an unwillingness to admit that he knew his evaluation was in connection with litigation, even though he did it in response to defense counsel's request, and the letter he received from the defense counsel had the case title and docket number listed. Plaintiff's attorney also questioned Dr. Blau about the frequency of his appearing in court cases and the nature of his position at an industrial clinic.

All of these inquiries were proper subjects of cross-examination. Wilson v. Stilwill, 411 Mich. 587, 599-602, 309 N.W.2d 898 (1981). The trial court fulfilled its duty to "be alert to questions which harass, intimidate, or belittle a witness" by sustaining objections to the more roughly phrased inquiries. Wilson, supra, p. 599, 309 N.W.2d 898.

Plaintiff's attorney also properly commented on a prior court ruling regarding defense counsel's misstatement of a legal proposition. Even though the trial court previously ruled that defense counsel's statement was improper, plaintiff's attorney could properly remind the jury not to be influenced by defense counsel's misstatement.

Defendant's argument that the jury's award of damages for past loss of income was purely speculative lacks merit. Plaintiff submitted a tax return [135 MICHAPP 485] to substantiate his claim that his income decreased as a result of the injury. The return evidenced a downward trend in plaintiff's income after the accident. Defendant also argues that plaintiff's failure to exhaust his remedies against his insurance carrier bars him from recovery of damages for lost income in a tort action. The no-fault statute forbids recovery for loss of income, except "work loss" damages "in excess of the daily, monthly and 3-year limitations contained in" M.C.L. 500.3107(b); M.S.A. 24.13107(b). M.C.L. 500.3135(2)(c); M.S.A. 24.13135(2)(c). M.C.L. 500.3107(b); M.S.A. 24.13107(b) contains an adjustable, monthly cap on the sum of benefits paid and the allowable income earned by an injured person for work during the same period. Plaintiff earned well in excess of this monthly cap and had no hope of obtaining work loss benefits from his own carrier and, therefore, could recover damages for lost income in a tort action. M.C.L. 500.3135(2)(c); M.S.A. 24.13135(2)(c).

Defendant further urges that damages for loss of earning capacity are barred by the no-fault statute. She relies on decisions which hold "that the Legislature intended to provide work-loss benefits for actual loss, but excluded recovery for loss of earning capacity". Gerardi v. Buckeye Union Ins. Co., 89 Mich.App. 90, 93, 279 N.W.2d 588 (1979); Struble v. DAIIE, 86 Mich.App. 245, 272 N.W.2d 617 (1978); Nawrocki v. Hawkeye Security Ins. Co., 83 Mich.App. 135, 268 N.W.2d 317 (1978). Each of these cases involved a claim against the plaintiff's own insurance carrier. In each case, this Court stressed the statutory definition of "work loss" as "loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured". M.C.L. 500.3107(b); M.S.A. 24.13107(b).

[135 MICHAPP 486] Since plaintiff proved that he suffers a serious impairment of body function, he may recover economic losses not guaranteed by the no-fault act. Since plaintiff could not have recovered work-loss benefits from his insurance carrier, he could recover for loss of earning capacity in the instant tort action. In Prince v. Lott, 369 Mich. 606, 610, 120 N.W.2d 780 (1963), the Court defined loss of earning capacity as "not what plaintiff would have but what he could have earned but for the injury". In the instant case, the trial judge instructed the jury that it could award damages for loss of income which plaintiff "is reasonably certain to sustain in the future". It seems unlikely that the term "earning capacity", as used on the jury form and in argument, had any significance to the jurors. Since the trial court properly instructed the jury, reversal is not required.

Defendant next argues that the trial court erred by allowing plaintiff to call a medical expert as a rebuttal witness. Defendant's experts testified that there was no objective evidence to support pla...