Henry v. Prusak
| Citation | 582 N.W.2d 193,229 Mich.App. 162 |
| Decision Date | 03 April 1998 |
| Docket Number | Docket No. 201006 |
| Parties | Sherry D. HENRY and Michael Henry, Plaintiffs-Appellees, v. Daniel PRUSAK and Joshua Burton, Defendants-Appellants. |
| Court | Court of Appeal of Michigan (US) |
Richard J. Stolcenberg, Wyoming, for Plaintiffs-Appellees.
Garan, Lucow, Millar, Seward & Becker, P.C. by Rosalind Rochkind and James L. Borin, Detroit, for Defendants-Appellants.
Amicus curiae Dykema Gossett by Lori Silsbury and James R. Bruinsma, Lansing,
Before FITZGERALD, P.J., and HOOD and SAWYER, JJ.
Defendants appeal as of right the order of default entered against them by Kent Chief Circuit Judge Dennis C. Kolenda in this third-party automobile liability case. The order of default resolved the issues of liability, causation, and serious impairment of a body function in favor of plaintiff Sherry Henry. 1 Following a trial on the issue of damages before Kent Circuit Judge David Soet, plaintiff was awarded damages of $5,452.53 for her pain and suffering. We reverse. 2
This case arises from an automobile accident that occurred on April 11, 1992. Plaintiff was traveling north on Burlingame in the city of Wyoming and defendant Joshua Burton was traveling south on Burlingame. Plaintiff's vehicle was struck by Burton's vehicle as Burton attempted to make a left turn from Burlingame onto 36th Street. The vehicle driven by Burton was owned by defendant Daniel Prusak and insured by Allstate Insurance Company. On March 16, 1994, plaintiff brought this action claiming that she suffered a serious impairment of body function 3 as a result of Burton's negligent operation of the vehicle and, thus, was entitled to damages for pain and suffering. Plaintiff also claimed that pursuant to the civil liability act, M.C.L. § 257.401; M.S.A. § 9.2101, Prusak, as the owner of the vehicle, was liable for Burton's negligence. Plaintiff further alleged that Prusak negligently entrusted his vehicle to Burton, who had been a licensed driver for only seven months. Plaintiff Michael Henry claimed loss of consortium.
The case was assigned to Kent Circuit Judge David Soet. Defendants answered the complaint and denied liability and asserted numerous affirmative defenses, including the limitations and tort immunity provisions of the no-fault insurance act, M.C.L. § 500.3101 et seq.; M.S.A. § 24.13101 et seq. Defendants also maintained that plaintiff was not entitled to noneconomic damages because she had not suffered a serious impairment of body function or permanent serious disfigurement as required by the tort immunity provisions of the no-fault act. Defendants further claimed that plaintiff failed to mitigate her damages, that her injuries were the result of a pre-existing condition, and that her injuries were the result of her own negligence because she was not wearing a seat belt and was traveling too fast at the time of the accident.
The case proceeded normally through pretrial proceedings and discovery. The case was mediated in January 1995 and resulted in an award in favor of plaintiff in the amount of $12,000. Plaintiffs accepted, and defendants rejected, the award. In January 1996, the parties received a "Notice And Order For Settlement Week Conference" from Judge Kolenda, which provided in pertinent part:
1. Counsel and/or the parties shall be prepared to negotiate in good faith effort to reach a fair and reasonable settlement.
2. Clients and persons with authority to settle shall be present at the settlement conference.
3. The parties shall submit a joint settlement conference statement (see attached form), setting forth both the undisputed and disputed facts and issues of the case. The joint settlement conference statement shall be filed with the Court Administrator's office by FEBRUARY 26, 1996. In addition, the parties shall submit a copy of the mediation summary and evaluation under MCR 2.403 at the same time as the joint settlement conference statement, if mediation has been held.
4. Failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions.
It is undisputed that all counsel, parties, and a representative from Allstate attended the settlement conference. The parties communicated with the assistance of a court-appointed attorney facilitator, but no settlement resulted. At the conclusion of the March 12, 1996, conference, the parties completed an "Order After Settlement Conference and Scheduling Notice," which indicated that settlement had not been reached and that trial was set for June 3, 1996.
On the same day as the settlement conference, an order of default was entered against defendants by Judge Kolenda because Allstate's representative failed to make an offer to settle at the settlement conference. That order provided that the issues of liability, causation, and serious impairment were resolved in favor of plaintiff and that the June 3, 1996, trial would proceed only with regard to the issue of damages. Defendants filed a "Motion for Reconsideration and/or Relief from Judgment." Defendants attached the affidavit of Rhonda Williams, the Allstate claims representative who attended the settlement conference. The affidavit stated in pertinent part:
6. That I am knowledgeable about the facts of this case and based upon those facts I have determined that a no cause verdict is a likely result based upon my past experience in handling previous cases that have been tried to a jury.
7. That I was ordered to attend a "settlement week conference" on Tuesday, March 12, 1996 at 8:00 a.m. at the Hall of Justice in Grand Rapids, Michigan.
8. That I personally appeared in a timely manner at the settlement conference as ordered.
9. That I was prepared to discuss and explain my position at the settlement conference.
10. That I was prepared to listen to the arguments or positions of the opposing side, the facilitator, or the judge, and to re-evaluate my evaluation of the case if the arguments or positions or others persuaded me to do so.
11. That nothing new was said by anyone at the settlement conference which provided me with any new information about this case that persuaded me that my evaluation was incorrect, and as a result, no money was offered to settle the matter.
Defendants' motion for reconsideration was denied by Judge Soet without a hearing.
On April 15, 1996, defendants filed a "Motion to Set Aside Default." The motion and supporting affidavit of defense counsel, Kerr Moyer, indicated that defendants were not aware of the default until the day after it had been entered by the court and that defendants had a meritorious defense. After a hearing, Judge Kolenda denied the motion on the grounds that Allstate had failed to make a settlement offer and that defendants had failed to establish good cause to set aside the default.
A trial was held with respect to the issue of damages on June 4 through 6, 1996. The jury was instructed to determine plaintiff's noneconomic damages arising from the accident. Plaintiff asked for $50,000 for past damages and $3,000 to $4,000 a year for future damages. The jury awarded plaintiff $5,000 for pain and suffering, which was reduced by thirty-two percent by her comparative negligence to $3,400. No damages were awarded on plaintiff Michael Henry's loss of consortium claim. On August 19, 1996, the trial court entered an order awarding plaintiff $3,400 plus interest and costs of $2,052.53, for a total judgment of $5,442.53.
Defendants subsequently filed a motion for a new trial, claiming in part that Judge Kolenda exceeded his authority by entering a default against them. On January 16, 1997, Judge Kolenda denied defendants' motion and simultaneously issued his opinion concerning the default.
On appeal, defendants argue that Judge Kolenda improperly entered a default against them. A trial court's authority to enter a default or a default judgment against a party must...
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