Harbenski v. Upper Peninsula Power Co.

• Decision Date: 09 November 1982
• Docket Number: 57878 and 61332,Nos. 57882,s. 57882
• Citation: Harbenski v. Upper Peninsula Power Co., 118 Mich.App. 440, 325 N.W.2d 785 (Mich. App. 1982)
• Parties: Norma J. HARBENSKI, Administratrix of the Estate of Douglas J. Harbenski, Deceased, Plaintiff-Appellee, and Liberty Mutual Insurance Company, a Massachusetts Insurance Company, First Intervening Plaintiff-Appellee, v. UPPER PENINSULA POWER COMPANY, a Michigan corporation; Upper Peninsula Generating Company, a Michigan corporation; Cleveland Cliffs Iron Company, an Ohio corporation; and Cliffs Electric Service Company, a Michigan corporation, Defendants-Appellees, and BECHTEL POWER CORPORATION, a Nevada corporation, Defendant-Appellant, and Bechtel Power Corporation, a Nevada corporation and Upper Peninsula Power Company, a Michigan corporation, Third-Party Plaintiffs, v. RILEY STOKER CORPORATION, a foreign corporation, Third-Party Defendant.
• Court: Court of Appeal of Michigan

Page 785

325 N.W.2d 785

118 Mich.App. 440

Norma J. HARBENSKI, Administratrix of the Estate of Douglas

J. Harbenski, Deceased, Plaintiff-Appellee,

and

Liberty Mutual Insurance Company, a Massachusetts Insurance

Company, FirstIntervening Plaintiff-Appellee, v.UPPER PENINSULA POWER COMPANY, a Michigan corporation;

Upper Peninsula Generating Company, a Michigan corporation;

Cleveland Cliffs Iron Company, an Ohio corporation; and

Cliffs Electric Service Company, a Michigan corporation,

Defendants-Appellees,

and

BECHTEL POWER CORPORATION, a Nevada corporation, Defendant-Appellant,

and

Bechtel Power Corporation, a Nevada corporation and Upper

Peninsula Power Company, a Michigan corporation, Third-Party Plaintiffs, v.RILEY STOKER CORPORATION, a foreign corporation, Third-Party

Defendant.

Nos. 57882, 57878 and 61332.

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided July 21, 1982.

Released for Publication Nov. 9, 1982.

Hansley, Neiman, Peterson, Beauchamp, Stupak & Bergman, P.C., Escanaba, for Norma J. Harbenski.

Clancey, Hansen, Chilman, Graybill & Greenlee, P.C., Ishpeming, for Upper Peninsula Power Co., Upper Peninsula Generating Co., Cleveland Cliffs Iron Co., and Cliffs Elec. Service Co.

Law Offices of Jack Carpenter, Petoskey, for Riley Stoker Corp.

Weis, Cossi, Geissler & Dean, P.C., Ironwood, for Bechtel Power Corp.

Before R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

R.B. BURNS, Presiding Judge.

This appeal stems from a wrongful death action where plaintiff's decedent was killed in a construction accident.The accident occurred at the Presque Isle Power Plant while decedent was working as a boilermaker for third-party defendant--subcontractor Riley Stoker Corporation.Plaintiff brought a suit against the owners of the plant ¹ and against the general contractor, Bechtel Power Corporation.Bechtel Power Corporation, as a third-partyplaintiff, sued Riley Stoker Corporation based on the theory of contractual indemnity.The jury found the owners not liable, Bechtel Power 30% negligent, Riley Stoker 55% negligent and plaintiff's decedent 15% negligent.The total award was for $866,000 against Bechtel Power, after subtracting the percentage of negligence attributable to plaintiff's decedent.Bechtel Power and Riley Stoker appeal.

The obligations set forth in an indemnity clause of the parties' contract were hotly disputed.However, to avoid confusion, this third-party contractual indemnity claim was not submitted to the jury.After the verdict was rendered motions for summary judgment on the claim were presented.Bechtel claimed it was entitled to indemnification from Riley Stoker for the entire amount of the award.The owners claimed that pursuant to the indemnification agreement they were entitled to an award for the costs and attorney fees they incurred in defending the principal action.Both summary judgments were granted and Riley Stoker appeals.

The first issue presented is whether the trial court erroneously excluded evidence that plaintiff was receiving workers' compensation benefits.Riley Stoker, the decedent's employer, argues that it was denied a fair trial because the exclusion of the information contributed to the excessive verdict.The plaintiff maintains that the evidence was properly excluded.In the plaintiff's estimation, the determination of damages would not be fair and adequate if the judge had ruled otherwise.

In Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 214, 132 N.W.2d 54(1965), the Court stated:

"Decisions made in this Court subsequent to the trial below control our ruling on this point.The case was tried in April, 1962, before our decisions in McCullough v. Ward Trucking Co., 368 Mich 108 , andLeitelt Iron Works v. DeVries, 369 Mich 47 .In the course of those two decisions, a majority of the Court as presently constituted ultimately held that evidence concerning receipt of workmen's compensation payments by an injured workman and his dependents should not be admitted in the trial of a negligence case against a third-party defendant."

More recently, the Supreme Court reaffirmed its continued adherence to Hill in Lynch v. Sign of the Beefeater, 407 Mich. 866, 283 N.W.2d 632(1980).

The trial below was an action for negligence against a third-party defendant.Therefore, we find Hill and Lynch control the resolution of this issue.The trial judge properly excluded reference to any remuneration plaintiff was entitled to from worker's compensation.

In the period between decedent's death and the commencement of trial, plaintiff remarried.Instead of "Harbenski", her last name became "Saez".The essence of the next issue raised by defendant Bechtel and third-party defendantRiley Stoker is that plaintiff misrepresented her marital status; namely, she tried to conceal the fact that she had remarried.

The position of defendants is obliterated by the conduct of the parties at trial.If the defendants' counselors were disturbed by how plaintiff was addressed at trial the record fails to reveal their displeasure.Counsel for Bechtel at times referred to plaintiff by her previous name, Mrs. Harbenski.However, when plaintiff testified she identified herself by her current name, Norma Saez.

In Wood v. The Detroit Edison Co., 409 Mich. 279, 287- 288, 294 N.W.2d 571(1980), the Supreme Court held that in a wrongful death action,

"Evidence of the possibility of remarriage is held not admissible for the purpose of mitigating damages * * *.

"In accordance with such reasoning, while we continue to believe that the fact of remarriage is irrelevant to mitigate damages in a wrongful death action, we feel that a protective order which enables a plaintiff to be addressed by a name other than that which she is currently using is not proper.We agree with the following reasoning of the Supreme Court of New Jersey:

" 'It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury.Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it.However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury'. Dubil v. Labate, 52 NJ 255, 261-262; 245 A.2d 177, 180(1968)."(Footnote omitted.)

Therefore, even if plaintiff had tried to conceal her true marital status, we would be bound to reject this claim of error.

Defendant takes exception to a comment made by plaintiff's counsel during closing argument.During closing argument plaintiff's counsel told the jury that plaintiff was precluded from suing Riley Stoker directly.He elaborated that the "conspiracy" to attribute all the negligence from plaintiff's accident to Riley Stoker was meritless and instructed the jurors to disregard such claims.The trial court held these remarks constituted "fair comment".

Defendant's position is that the presentation was outrageous and prejudicial and thereby constituted reversible error.Plaintiff counters that the argument was proper since Riley Stoker, during its closing statement, argued that the jury should absolve Bechtel and the owners of responsibility for the accident.This position, plaintiff states, differed from what Riley Stoker asserted in opening argument, where it was urged that the responsibility for plaintiff's injuries was placed with Bechtel, not Riley Stoker.Therefore, the comments made were in rebuttal to the new posture pursued by Riley Stoker during closing argument.

Riley Stoker's counsel, in part, stated in the opening argument:

"So I am not saying that Bechtel or U.P. Generating violated any duty they had to Mr. Harbenski.But if they did * * * if they did, it was their own personal, independent duty that they might have to Mr. Harbenski: * * * You're the judge and you are larger than one mind.If they violated their own personal fault, that contract does not say that Riley has to pay for their own personal fault."

In closing argument Riley Stoker stated:

"They are being criticized because they tried to enforce or help safety and encourage safety and now they find themselves in court * * * for something that is our business--Riley Stoker's business.And that's what I meant in my opening statement, if you found that they did anything wrong it was their own responsibility for whatever they did wrong.But don't hold them responsible for what Riley Stoker does * * * if we did something wrong."

When plaintiff's counsel presented his closing remarks he offered the following retort to the statements made by Mr. Carpenter, Riley Stoker's counsel:

"I think, listening to Mr. Carpenter's statement as my final remarks here, that we have really come full circle with Mr. Carpenter.It's almost like a conspiracy.He starts out by saying that Bechtel's at fault, not Riley Stoker.Harbenski is at fault, not Riley Stoker.But now it seems that Defendants have more or less ganged up, they say Riley Stoker will take it, 'We're the employer,' because the Plaintiff can't get one penny if you find Riley Stoker the only one at fault.Ladies and Gentlemen, you put the blame where it belongs."

Riley Stoker and Bechtel did not object to plaintiff's comment at trial.Therefore, this issue is not preserved on appeal, unless manifest injustice will result.

Where no attempt is made to extend or introduce a new argument, statements which supplement opening and closing remarks are allowed.SeeHaynes v. Monroe Plumbing & Heating Co., 48 Mich.App. 707, 211 N.W.2d 88(1973).Moreover, counsel is allowed to make statements during closing arguments in response to points made by opposing counsel.Haynes, supra;Carbonell v. Bluhm, 114 Mich.App. 216, 318 N.W.2d 659(1982).Therefore, we find plaintiff's counsel's comments were properly presented to the jury.It was the remarks of third-party defendant...