Beach v. State Farm Mut. Auto. Ins. Co., Docket No. 174556

• Court: Court of Appeal of Michigan (US)
• Citation: 550 N.W.2d 580,216 Mich.App. 612
• Docket Number: Docket No. 174556
• Parties: Guy Richard BEACH, Plaintiff-Appellee/Cross-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant/Cross-Appellee.
• Decision Date: 17 May 1996

Page 580

550 N.W.2d 580

216 Mich.App. 612

Guy Richard BEACH, Plaintiff-Appellee/Cross-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellant/Cross-Appellee.

Docket No. 174556.

Court of Appeals of Michigan.

Submitted Nov. 14, 1995, at Grand Rapids.

Decided May 17, 1996, at 9:00 a.m.

Released for Publication July 12, 1996.

Logeman & Associates, P.C., Ypsilanti by James A. Iafrate, for plaintiff.

Shaner & Olsen, P.C., Ann Arbor by Robert John Daly, for defendant.

Before DOCTOROFF, C.J., and MICHAEL J. KELLY and MARKEY, JJ.

MARKEY, Judge.

In November 1988, plaintiff was involved in a one-car accident and suffered severe injuries to his face and head. Defendant, plaintiff's no-fault insurance provider, paid $41,271.66 in no-fault benefits for plaintiff through December 1991. In 1992, the Department of Social Services referred plaintiff to a psychologist who would determine plaintiff's eligibility for a DSS program exchanging volunteer work for welfare benefits. Dr. Rosenbaum, the psychologist, concluded that residual effects from the 1988 accident were exacerbating plaintiff's prior learning difficulties and recommended that plaintiff receive vocational and other rehabilitation at Ann Arbor Rehabilitation Services, which was owned in part by the psychologist. Defendant refused to pay for this treatment ¹ because defendant could not determine whether plaintiff's rehabilitation was related to the accident. According to defendant, plaintiff dropped out of school in the eighth grade, intelligence tests showed that plaintiff was functioning at lower levels, and plaintiff suffered closed head injuries from a 1977 motorcycle accident in which plaintiff was not wearing a helmet. Thus, because plaintiff could not establish the origin of the problems he suffered with respect to his general cognitive functioning, defendant refused to pay the rehabilitation bills.

Plaintiff filed an action requesting that defendant fulfill its contractual obligations as plaintiff's no-fault insurer and also asked for a declaratory ruling concerning defendant's responsibility for plaintiff's future rehabilitation. A jury awarded plaintiff $17,500 and found that plaintiff was entitled to future vocational counseling, psychiatric or psychological care, and therapy for traumatic brain injury. The jury refused, however, to require that defendant pay for plaintiff's future physical therapy or pay a no-fault interest penalty. On the basis of the jury's refusal to award interest, the court also denied plaintiff's request for attorney fees, M.C.L. § 500.3148(1); M.S.A. § 24.13148(1), even though the court believed that defendant's refusal to pay was unreasonable. The court likewise denied defendant's request for attorney fees pursuant to M.C.L. § 500.3148(2); M.S.A. § 24.13148(2) even though defendant obtained a directed verdict with respect to plaintiff's claims for wage loss and replacement service benefits. Additionally, the court granted plaintiff's requests for prejudgment interest on those claims that existed when plaintiff filed his complaint and for mediation sanctions. Defendant appeals as of right, raising seven issues for this Court to review, and plaintiff raises a separate issue on cross appeal. We affirm in part, reverse in part, and remand for further proceedings.

I

First, defendant asserts that the trial court committed error requiring reversal because the jury verdict form was defective in that (1) it did not ask whether plaintiff's injuries arose out of the November 1988 accident, and (2) it asked the jury to determine what future medical treatment plaintiff needed. After reading the jury verdict form in conjunction with the jury instructions, we disagree. The first and fourth questions on the jury verdict form state:

Question No. 1: Did the plaintiff incur "allowable expenses" arising out of a November 28, 1988 motor vehicle accident which are defined as reasonable charges for reasonably necessary products, services, and accommodations for the plaintiff's care, recovery, or rehabilitation?

Question No. 4: Which of the following types of medical care arises out of the November 28, 1988 accident and [are] reasonable and necessary for [plaintiff's] care, recovery, or rehabilitation at the present time:

a. Physical [t]herapy and treatment?

b. Psychiatric or psychological care?

c. Traumatic brain injury therapy?

d. Vocational counseling? [Emphasis added.]

While we acknowledge that the verdict form did not contain a separate question asking the jury whether plaintiff's injuries arose out of the subject accident, the trial court remedied any doubt left open by the verdict form when it correctly instructed the jury. Specifically, the trial court informed the jury that in order for plaintiff to recover no-fault benefits from defendant, plaintiff had to prove, first, that his injuries arose out of the operation of a motor vehicle as a motor vehicle. The court also instructed that the jury must determine an award based on the 1988 accident alone, if possible. Because the parties' theories and the applicable law were adequately and fairly presented to the jury, any error in the jury verdict form is, therefore, harmless. MCR 2.613(A); see Bordeaux v. Celotex Corp., 203 Mich.App. 158, 169, 511 N.W.2d 899 (1993).

We also believe that the trial court did not err in permitting the jury to determine the type of future medical treatment that plaintiff would need. See Manley v. DAIIE, 425 Mich. 140, 157-159, 388 N.W.2d 216 (1986); Moghis v. Citizens Ins. Co., 187 Mich.App. 245, 248, 466 N.W.2d 290 (1990). Accordingly, defendant properly was found responsible for certain expenses payable in the future related to plaintiff's psychiatric or psychological care, therapy for traumatic brain injury, and vocational counseling. Manley, supra; Moghis, supra.

II

Next, defendant asserts that the court abused its discretion when it failed to exclude plaintiff's expert, Dr. Gerald Shiener, from testifying after plaintiff failed to provide to defendant a copy of Dr. Shiener's evaluation regarding plaintiff's condition until after defendant filed its motion in limine, which was just before trial. We agree that some sanctions are in order. We review for abuse of discretion the decision whether to impose sanctions for discovery violations. Merit Mfg. & Die, Inc. v. ITT Higbie Mfg. Co., 204 Mich.App. 16, 21, 514 N.W.2d 192 (1994).

Here, plaintiff listed Dr. Shiener as an expert, and defendant sent interrogatories inquiring about this expert's treatment and evaluation of plaintiff. The interrogatories requested not only a summary of the expert's opinions that would be offered at trial but also a copy of any treatment notes, correspondence, records, statements, test results or written opinions by Dr. Shiener. In October 1993, plaintiff responded that Dr. Shiener had evaluated plaintiff in September 1993, but no report was available at that time. Plaintiff promised, however, to "forward this report to Defendant, State Farm, as soon as it has been received." The doctor's report was dated November 18, 1993. Defendant neither scheduled nor took a discovery deposition of Dr. Shiener. After defendant filed its motion in limine to exclude Dr. Shiener's testimony, plaintiff faxed a copy of the doctor's report to defendant after business hours on the Thursday before the parties' Monday trial.

Although the trial court overlooked it, MCR 2.302(E)(1)(a)(ii) required plaintiff to supplement his responses to defendant's interrogatories regarding Dr. Shiener, as well as provide the subject matter and substance of the expert testimony that he would give at trial, or face the possibility of the sanctions set forth in MCR 2.313(B), including the exclusion of the expert's testimony at trial. MCR 2.302(E)(2); LaCourse v. Gupta, 181 Mich.App. 293, 296, 448 N.W.2d 827 (1989). Under the court rules, it was plaintiff's affirmative responsibility to answer defendant's interrogatories regarding Dr. Shiener and to supplement his answers, rather than withhold the report until trial. ² Id. at 295-296, 448 N.W.2d 827. An order to compel supplementation was not a prerequisite to excluding this expert evidence. Id. at 296-297, 448 N.W.2d 827. Under the facts of this case, we find that the trial court abused its discretion in permitting plaintiff to withhold Dr. Shiener's evaluation without sanctions until one business day before trial when defendant would have little time to address or rebut the doctor's opinions before trial. Our review of the record leads us to believe that plaintiff's failure to timely present defendant with a copy of Dr. Shiener's evaluation until the day before trial may have been wilful, and but for defendant's motion in limine, plaintiff would have withheld the evaluation and called Dr. Shiener as a witness at trial. See Barlow v. John Crane-Houdaille, Inc., 191 Mich.App. 244, 251-252, 477 N.W.2d 133 (1991). On the other hand, defendant had discovery rights that it could have exercised had it been concerned about Dr. Shiener's possible testimony. Nonetheless, because plaintiff clearly violated the discovery rules and caused defendant to at least file a motion in limine, the trial court abused its discretion in not sanctioning plaintiff. LaCourse, supra at 296, 448 N.W.2d 827; MCR 2.313(B)(2)(b). We therefore remand for a hearing to assess reasonable sanctions for the violation.

III

Defendant further challenges the trial court's denial of its request to admit into evidence an audit report on the bills Ann Arbor Rehabilitation Services generated with respect to plaintiff. We find that the trial court did not abuse its discretion when it excluded from evidence an audit report that defendant had prepared in anticipation of litigation. See Cleary v. Turning Point, 203 Mich.App. 208, 210, 512 N.W.2d 9 (1993). Given that defendant failed to make Martha Shipley, the nurse who wrote the audit report, available for cross-examination, ...