Nahshal v. Fremont Ins. Co., s. 336234
| Decision Date | 21 June 2018 |
| Docket Number | 336919,Nos. 336234,s. 336234 |
| Citation | 324 Mich.App. 696,922 N.W.2d 662 |
| Parties | Abdul NAHSHAL, Plaintiff-Appellee, v. FREMONT INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Mancini Schreuder Kline PC (by Ellen G. Schreuder and Drew Slager ) for plaintiff.
Novara Tesija & Catenacci, PLLC (by Marc D. McDonald, Kaitlyn A. Cramer, and Brian R. Meyer ) for defendant.
Before: Swartzle, P.J., and Shapiro and Boonstra, JJ.
There was a time under the common law when a witness had to swear belief in a Supreme Being before testifying in court. This time passed, and the common-law rule was set aside. Today, a witness cannot be questioned about beliefs or opinions on religion, and especial care must be taken that these beliefs or opinions not be used to impair or enhance a witness's credibility.
During the jury trial in this case, plaintiff's wife was asked about her and her husband's religious opinions for the purpose of bolstering her credibility, and this was error. Whether this error requires automatic reversal or, instead, this error requires a showing of prejudice before relief can be had is the question we address here. Concluding that, in a civil action, a party must show prejudice from the improper admission of religious belief or opinion testimony before reversal can be had, yet finding defendant has not shown such prejudice here, and finding no other reversible error, we affirm.
In Docket No. 336234, defendant Fremont Insurance Company appeals as of right a judgment awarding plaintiff Abdul Nahshal $130,256.24 for no-fault personal protection insurance (PIP) benefits. In Docket No. 336919, defendant appeals as of right the trial court's subsequent order awarding plaintiff taxable costs, attorney fees, penalty interest, and judgment interest.
Plaintiff was involved in a roll-over automobile accident from which he sustained injuries to his chest, shoulder, back, and neck. Following the accident, plaintiff also suffered from post-traumatic stress disorder. Before the accident, plaintiff worked as a server at both the Detroit Athletic Club and Greektown Casino, where he received compensation in the form of wages and tips. Plaintiff returned to work at Greektown Casino approximately five weeks after the accident, but he had to change roles from server to cashier because of his injuries. Plaintiff never returned to work at the Detroit Athletic Club.
Plaintiff sought work-loss and related benefits from defendant, his no-fault insurer, including nearly $5,000 per month for lost income and additional amounts for attendant-care and replacement-services benefits. Plaintiff's wife testified at trial that, for several weeks after the accident, it was difficult for plaintiff to do anything because of his injuries. According to plaintiff's wife, she had to help plaintiff to the bathroom for approximately two weeks after the accident. She submitted paperwork to defendant, documenting the assistance she provided to plaintiff. As relevant to this appeal, Attendant Care Service Compensation Claim Forms for October and November 2013 record that plaintiff's wife provided toileting assistance for 17 days. Plaintiff's primary-care physician corroborated plaintiff's wife's testimony that plaintiff was disabled from household duties and needed personal-attendant care.
Defendant's claims specialist testified at trial that she determined plaintiff's work-loss benefit to be $2,500 per month based on the calculation of a certified public accountant (CPA). The difference between defendant's payment and plaintiff's requested amount appears to be based on a disagreement on how plaintiff's tip income should have been calculated. The purported CPA's calculation is not in the record. As of trial, defendant had paid plaintiff a total of $40,000 in work-loss and replacement-services benefits.
Several attempts were made to settle the matter before trial, and the case-evaluation panel recommended a settlement in plaintiff's favor. Defendant rejected the recommendation, and the dispute proceeded to trial. At trial, defendant argued that plaintiff made false statements to defendant to bolster his claim and that dismissal was warranted based upon a fraud-exclusion provision in defendant's policy. The provision at issue is entitled "Concealment or Fraud" and provides:
We will not cover any person seeking coverage under this policy who has intentionally concealed or misrepresented any material fact, made fraudulent statements, or engaged in fraudulent conduct with respect to the procurement of this policy or to any accident or loss for which coverage is sought.
Defense counsel brought up the subject of fraud with plaintiff's wife, questioning whether plaintiff's wife's recordkeeping was honest. On redirect, plaintiff's wife testified as follows:
Defendant also brought up the subject of fraud during its cross-examination of plaintiff, specifically with respect to attendant care. Plaintiff testified on cross-examination as follows:
Defense counsel was not able, however, to point to anything in the trial record showing that plaintiff's wife actually sought reimbursement for $80,000 related to helping her husband with his toiletry needs for a year. Nor could defense counsel identify a record to this effect during oral argument on appeal.
At the close of plaintiff's case-in-chief, defendant moved for a directed verdict, arguing that plaintiff admitted that his wife engaged in fraud, thereby voiding the policy. The trial court denied the motion, but allowed an instruction regarding fraud to be presented to the jury. In closing argument, plaintiff's counsel asked the jury to award $129,634.86 in work-loss benefits, $23,550 in attendant-care benefits, and $19,380 in replacement-services benefits. The jury found defendant liable and awarded plaintiff $129,044.24 in work-loss benefits, $312 in attendant-care benefits, and $900 in replacement-services benefits.
Defendant moved for judgment notwithstanding the verdict (JNOV), again arguing that the record showed that the policy was voided by fraud and citing plaintiff's testimony regarding toileting. The trial court denied the motion, noting that the question of fraud was presented to, and rejected by, the jury. The trial court entered a judgment that was stayed pending appeal.
Plaintiff then moved for attorney fees, costs, and interest, arguing that defendant's unreasonable failure to pay work-loss benefits entitled plaintiff to payment of those fees under the no-fault act, MCL 500.3101 et seq. At the hearing on plaintiff's motion, the trial court noted that defendant had essentially agreed to the award of attorney fees from the time of case evaluation and that, therefore, "the issue is is [sic] attorney fees from ... the beginning." After the parties had made their arguments, the trial court noted that it had "lived this case for the last couple of years." The trial court stated that a verdict was rendered in plaintiff's favor "but there's a little bit more to the story in that regard." The...
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