Komendat v. Gifford

• Decision Date: 01 October 2020
• Docket Number: No. 346990,346990
• Citation: 964 N.W.2d 75,334 Mich.App. 138
• Parties: Liliya KOMENDAT, Plaintiff-Appellant, v. Andrew GIFFORD and Roxanne Gifford, Defendants, and Home-Owners Insurance Company, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

334 Mich.App. 138

964 N.W.2d 75

Liliya KOMENDAT, Plaintiff-Appellant,

v. Andrew GIFFORD and Roxanne Gifford, Defendants,andHome-Owners Insurance Company, Defendant-Appellee.

No. 346990

Court of Appeals of Michigan.

Submitted May 12, 2020, at Detroit.

Decided October 1, 2020, 9:05 a.m.

Lorelli & Lorelli (by Malgorzata Lorelli and Vincent Lorelli ) for Liliya Komendat.

Secrest Wardle (by Drew W. Broaddus, Grand Rapids, and Renee T. Townsend, Troy) for Home-Owners Insurance Company.

Before: Beckering, P.J., and Fort Hood and Shapiro, JJ.

Per Curiam.

In this action for uninsured motorist (UM) and personal protection insurance (PIP) benefits, plaintiff, Liliya Komendat, appeals two orders entered by the trial court: (1) a final judgment partially in favor of plaintiff, and (2) a "combined order" that granted plaintiff a small portion of the no-fault attorney fees she requested against defendant Home-Owners Insurance Company.¹ We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

This case arises from injuries plaintiff suffered as a result of a January 22, 2015 motor vehicle accident. Plaintiff was a passenger in a vehicle struck by a car driven by Andrew Gifford and owned by Roxanne Gifford. Neither Roxanne nor Andrew had no-fault insurance. For some time, defendant insurer paid various medical and transportation bills for plaintiff, totaling about $61,000, pursuant to her husband's insurance policy with defendant. On October 13, 2015, defendant refused to pay further benefits after a physician it had retained examined plaintiff and concluded that her injuries should have required only three to six months of treatment.

Plaintiff filed suit against defendant, seeking PIP benefits and UM coverage. Shortly after filing her complaint, plaintiff filed a request for admission asking defendant to admit that the Giffords’ vehicle was uninsured at the time of the accident. Defendant denied the sought admission. Later, after some discovery but before trial, plaintiff moved for a directed verdict with respect to that issue, and as a result of that motion, defendant ultimately stipulated at trial that the vehicle was uninsured.

After the close of defendant's proofs at trial, plaintiff moved for a directed verdict with respect to defendant's failure to pay a prescription bill during the time that defendant was voluntarily paying plaintiff PIP benefits. The trial court granted the motion and awarded plaintiff $107.17 for the prescription bill and $38.57 in penalty interest. With respect to all other aspects of plaintiff's claims, the jury returned a verdict in favor of defendant. The jury found that the accident did not cause plaintiff to suffer from a serious impairment of an important body function, which negated plaintiff's UM claim, and it found that plaintiff had not incurred any allowable PIP expenses in excess of what defendant had already paid.

Both parties subsequently filed a series of posttrial motions. Relevant to this appeal are plaintiff's motions seeking no-fault attorney fees under MCL 500.3148(1) and sanctions under MCR 2.313(C) for defendant's failure to admit before trial that the Giffords’ vehicle was uninsured. Regarding the request for no-fault attorney fees, plaintiff relied on the directed verdict concerning the prescription bill and sought attorney fees of $235,000 based on the total amount of time her attorneys spent representing her in the case. Regarding the request for sanctions, plaintiff sought $25,000 for defendant's failure to admit before trial that the Giffords’ vehicle lacked insurance.

On May 24, 2018, the trial court entered both a final judgment memorializing the results of trial—the directed verdict for the prescription bill and the jury verdict for no cause of action with respect to the other aspects of plaintiff's claim—and a "combined order" disposing of the parties’ posttrial motions. The court ruled in the combined order that plaintiff was due no-fault attorney fees on the basis of the overdue prescription bill and the lack of evidence that defendant's failure to pay the bill was reasonable. The court next considered the proper amount of the fee to be assessed and concluded that $4,688.75 was a reasonable attorney fee. The court then declined to sanction defendant for failing to admit that the vehicle was uninsured before that evidence became available. The court ruled that, although most everyone involved in the case believed the Giffords’ vehicle was uninsured, that fact was not conclusively known until long after defendant declined plaintiff's request to admit.

Plaintiff now appeals both the final judgment and the combined order. Plaintiff argues with respect to the final judgment that the trial court abused its discretion by admitting deposition testimony from defendant's three medical experts at trial and by giving a spoliation instruction to the jury with respect to a replacement-services calendar that was once in plaintiff's possession. With respect to the combined order, plaintiff contends that the trial court abused its discretion by awarding plaintiff only a portion of the attorney fees she requested and by failing to sanction defendant for its failure to admit.

II. JURISDICTION

We begin by considering defendant's argument that appellate jurisdiction in this case is limited to plaintiff's claim for attorney fees. Defendant asserts that, although plaintiff filed her claim of appeal within 21 days of entry of the trial court's order denying plaintiff's timely motion for reconsideration, the motion for reconsideration related only to the issue of attorney fees in the combined order, and not the final judgment. Defendant's argument is premised on the idea that the combined order is "a postjudgment order awarding or denying attorney fees and costs" pursuant to MCR 7.202(6)(a)(iv) and is therefore a final order distinct from the final judgment. We do not agree. While the statement in the combined order that "this case remains closed by the final judgment entered May 24, 2018" could be read to imply that the final judgment was entered before the combined order, one could also read the register of actions as suggesting that the combined order was entered first. In any event, for jurisdictional purposes, given that the final judgment and the combined order together disposed of the remaining issues in the case, and given that the two orders were undoubtedly entered at or around the same time, we are not convinced by defendant's suggestion that we must treat the combined order as a postjudgment order awarding attorney fees under MCR 7.202(6)(a)(iv). Accordingly, we conclude that we have jurisdiction and turn to review of the issues raised in plaintiff's briefing.

III. EXPERT TESTIMONY

Plaintiff first contends that the trial court erred when it denied her motion to preclude the admission of the deposition testimony of defendant's three medical experts because a proper foundation was not laid in refreshing the witnesses’ recollections at their respective depositions. We disagree.²

MRE 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." See also Citizens Nat'l Bank of Cheboygan v. Mayes , 133 Mich. App. 808, 812, 350 N.W.2d 809 (1984). So long as a proper foundation is laid, one manner of establishing a witness's personal knowledge is to have the witness's memory refreshed by a writing or similar document. Genna v. Jackson , 286 Mich. App. 413, 423, 781 N.W.2d 124 (2009). "To lay a proper foundation, the proponent must show that (1) the witness's present memory is inadequate, (2) the writing could refresh the witness's present memory, and (3) reference to the writing actually does refresh the witness's present memory." Id. Plaintiff asserts that the third element was never established with the three witnesses at issue, and accordingly, their deposition testimony should not have been admitted at trial. We reject plaintiff's argument for two reasons.

First, it is not clear that any error occurred. Defendant presented the witnesses with the reports that they had authored and asked whether review of the reports "would" refresh their recollection as to their examinations of plaintiff and their findings. Each witness responded in the affirmative. When viewed in context, these responses established, at least by implication, that the witnesses’ memories had been refreshed upon review of their respective reports. For example, one expert, Dr. Lisa Porter-Grenn, testified:

The date of my narrative report is approximately two years prior to today's date, so, of course, I would want to review it. And I copied it, downloaded it, and printed it out, yesterday, went through it, and refreshed all my memory of the case. And it's not that difficult to do. You know, once you do have the report, it's not difficult to remember the facts.

The other two experts each testified that review of their respective reports would refresh their recollections.

In addition, plaintiff did not make clear the basis for her objection to the use of the reports to refresh the witnesses’ recollections. A hearsay objection without further explanation was made during the direct examination. It was only after defense counsel completed his direct examination of each witness that plaintiff raised a foundational objection on the basis of defendant's failure to properly refresh the witnesses’ recollections. And it was not until plaintiff filed a pretrial motion to exclude the doctors’ testimony that the basis for the objection was made clear, i.e., that defendant failed to explicitly ask the experts whether the medical evaluations actually did refresh their memories.

MCR 2.308(C)(3)(a) provides:

Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of a

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