Begin v. Mich. Bell Tel. Co., Docket No. 279891.

Citation284 Mich. App. 581,773 N.W.2d 271
Decision Date25 June 2009
Docket NumberDocket No. 279891.,Docket No. 284114.
PartiesBEGIN v. MICHIGAN BELL TELEPHONE COMPANY.
CourtCourt of Appeal of Michigan (US)

Brinks & Associates (by Sharon R. Brinks and Nadine Renee Klein), Kentwood, for the plaintiff.

Lacey & Jones (by D. Michael McCann, Gerald M. Marcinkoski, and Michael T. Reinholm), Birmingham, for the defendants.

Before: JANSEN, P.J., and HOEKSTRA and MARKEY, JJ.

PER CURIAM.

In Docket No. 279891, defendant Michigan Bell Telephone Company (defendant) and its self-insurance claims manager, Sedgwick Claims Management Services, Inc. (Sedgwick), appeal by a reserved claim of right to appeal a July 19, 2007, consent judgment that, among other provisions, requires defendants to pay $25,059 for a 2005 Pontiac Montana van as an allowable expense under the no-fault act, MCL 500.3107(1)(a). Plaintiff's claim arises out of a 1988 motor vehicle accident that happened while plaintiff worked for defendant. Defendant insures itself for both workers' compensation and no-fault benefits. Plaintiff suffered accidental injuries rendering him a quadriplegic. We affirm.

In Docket No. 284114, defendant appeals by leave granted the trial court's order denying its motion for summary disposition with respect to a complaint plaintiff filed after entry of the consent judgment in Docket No. 279891. The appeals were consolidated. Plaintiff asserts in his second lawsuit several theories of liability arising out of defendant's handling of plaintiff's benefits claims, including intentional infliction of emotional distress, invasion of privacy-trespass, and claims regarding the method of payment for attendant care expenses under theories of breach of contract, promissory estoppel, and statutory construction. Defendant argues that it should be granted summary disposition under MCR 2.116(C)(7) because plaintiff's claims in the second suit could have been brought in the first lawsuit regarding the van, and therefore are barred by the doctrine of res judicata. Defendant also argues that summary disposition of the claim for intentional infliction of emotional distress should be granted under MCR 2.116(C)(8) for failure to state a claim. Because we agree that defendant's arguments have merit, we reverse and remand for the entry of an order granting summary disposition in favor of defendant.

DOCKET NO. 279891

A party that waives an objection to a rule of practice or to evidence, stipulates to facts, or confesses judgment, generally cannot later claim the right to appellate review of those matters. Westgate v. Adams, 293 Mich. 559, 564, 292 N.W. 491 (1940). But this Court "has previously recognized that an appeal of right is available from a consent judgment in which a party has reserved the right to appeal a trial court ruling." Travelers Ins. v. Nouri, 456 Mich. 937, 575 N.W.2d 561 (1998). Nevertheless, unless an issue encompassed within the consent judgment has been specifically preserved for appeal, the general rule is that a party cannot stipulate a matter and then argue on appeal that the resulting action was error. Bonkowski v. Allstate Ins. Co., 281 Mich. App. 154, 168, 761 N.W.2d 784 (2008); see also Chapdelaine v. Sochocki, 247 Mich. App. 167, 177, 635 N.W.2d 339 (2001) ("A party cannot stipulate a matter and then argue on appeal that the resultant action was error.").

In this case, on July 6, 2007, the parties placed a settlement on the record providing, among other things, that defendant pay $25,059 for the van plaintiff had purchased. Since plaintiff's accident, defendant had purchased three other vans without any protest. In addition, defendant did not contest paying for modifications to the van to accommodate plaintiff's disabilities as a claim against its workers' compensation liability. Plaintiff's counsel stated on the record that the parties' settlement "does not waive Defendant's right to appeal from the judgment regarding the issues involving Griffith [v. State Farm Mut. Automobile Ins. Co., 472 Mich. 521, 697 N.W.2d 895 (2005)] and Davis [v. Citizens Ins. Co. of America, 195 Mich.App. 323, 489 N.W.2d 214 (1992)] as set forth in the various motions and cross-motions that have been heard on a number of occasions, including August the 4th, 2006, and June the 15th, 2007." The consent judgment was entered on July 19, 2007, providing that it "does not waive defendants' right to appeal from the Judgment regarding the issues involving Griffith and Davis as set forth in the various motions and cross-motions considered [on August 4, 2006 and June 15, 2007]...."

The agreement regarding defendants' reserved right to appeal is further delineated by review of the two specified motion hearings. At the hearing on August 4, 2006, the trial court received arguments of counsel on defendants' motion for summary disposition under MCR 2.116(C)(8) and plaintiff's cross-motion for summary disposition under MCR 2.116(C)(10). Defendants argued in support of their motion under MCR 2.116(C)(8) as follows:

I believe the Supreme Court case of Griffith ... does give the Court guidance on this. The Davis case, which is the Court of Appeals case cited by counsel, is really sua sponte overruled by Griffith. Griffith indicates that expenses which are the same for an uninjured person are now [sic, not] allowable under the No-Fault Act.

In ruling on the parties' motions, the trial court reasoned:

Of this I am certain. The principle enunciated in Davis, in my opinion, is still viable and controlling. And for that reason I find Griffith distinguishable and inapplicable to this case, and I must respectfully deny the defense motion predicated under [MCR] 2.116(C)(8).

As to the [MCR 2.116](C)(10) motion brought by the plaintiff, again, in attempting to assess the issue presented, I do find this van in its totality represents a necessity because of the particularities of the plaintiff's condition and the necessity of having these accommodations in a vehicle adapted to meet his particular needs.

Despite this legal ruling, the trial court still denied plaintiff's motion for summary disposition because the court was uncertain whether plaintiff's claim exceeded the circuit court's jurisdictional limit of $25,000.

The second pertinent motion hearing was held on June 15, 2007, shortly before the case was scheduled for trial. During that hearing, the trial court addressed defense counsel, who was substituting for defendant's regular attorney because of illness.

The Court: Well, here's [the posture of the case] as I understand it. The plaintiff is a person who requires a van outfitted with certain accommodations, which are not in contest, and the Court ruled that this is a necessary part of his care.

After further colloquy during which defense counsel and the trial court agreed that the $2,600 for necessary accommodations to the van were not at issue because defendant paid for them as part of plaintiff's workers' compensation claim, the trial court continued:

The Court: Right, they have been [paid already]—$2,600 or so—but its not accommodations in a vacuum. It's accommodations and a new van, because an operable vehicle is part and parcel of his entitlement, and we're sort of at a crossroads here of not making any progress whatsoever.

After further colloquy between the trial court and counsel, the court stated to defense counsel:

But let me say this as clearly as I hope it can be communicated to Mr. McCann, whom I wish to be restored to health soon from whatever his malady or ailment.

I don't know if it was called upon me to make a decision with regard to this matter, or the basis upon which summary disposition was denied to plaintiff at the time, but it seems to me—very strong evidence here, that a new van, or a relatively new van since the plaintiff has possessed this fourth van—seems to me that there's really no question that this is an absolute necessity, that the nature of the accommodations, of course, are important, but those accommodations would do nothing for the plaintiff unless he has a reliable vehicle to which they were attached, and reliable is critical because of the plaintiff's special needs, who depends on the van more than for transportation, but also to assist him in the manners described in the brief. And this is more than a matter in which an able-bodied person would regard a motor vehicle; this is a vehicle for which the plaintiff is solely dependent beyond transportation, but to attend to his daily living.

So the question is how soon will the defense recognize the obvious, and maybe it will take a trial for that purpose. But of course, with a trial, with which comes the potential of an uncertain result....

The trial court went on to deny the parties' pending motions and set a firm trial date of July 23, 2007. But, as already noted, the parties placed their settlement on the record on July 6, 2007, providing, among other things, that defendant pay $25,059 for plaintiff's van. The consent judgment was entered July 19, 2007, and reserved to defendants the right to appeal the Griffith and Davis issues argued at the two specified motion hearings. In addition, the consent judgment also relates that defendants previously had waived affirmative defenses regarding the statute of limitations, the failure to mitigate damages, and "their Davis defense." The meaning of the last defense is unclear. Plaintiff asserts in his brief that "Davis defense" refers to the reasonableness of an allowable expense under MCL 500.3107(1)(a), in this case, the van. Whether or not this is correct, we conclude that defendant has waived its ability to contest both the reasonableness of the charge and the reasonableness of the necessity for the van.

Defendants argue on appeal that plaintiff "has presented no evidence that the replacement van itself, without modifications, was reasonable and necessary within the meaning of" MCL 500.3105(1) and MCL...

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