Paul v. Farm Bureau Ins. Co. of Mich.

• Decision Date: 06 April 2023
• Docket Number: 359396
• Parties: JERRY D. PAUL and JOANNE PAUL, Plaintiffs-Appellees/Cross-Appellants, v. FARM BUREAU INSURANCE COMPANY OF MICHIGAN, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

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JERRY D. PAUL and JOANNE PAUL, Plaintiffs-Appellees/Cross-Appellants, v. FARM BUREAU INSURANCE COMPANY OF MICHIGAN, Defendant-Appellant/Cross-Appellee.

No. 359396

Court of Appeals of Michigan

April 6, 2023

UNPUBLISHED

Isabella Circuit Court LC No. 16-013174-CZ

Before: SHAPIRO, P.J., and LETICA and FEENEY, JJ.

PER CURIAM

Defendant Farm Bureau Insurance Company of Michigan, appeals by right and plaintiffs, Jerry and Joanne Paul,^[1] cross-appeal by right, from a judgment entered in plaintiffs' favor by the trial court following a jury trial. Because we conclude that the trial court did not abuse its discretion by disallowing the sudden-emergency instruction, we affirm in part the judgment in plaintiffs' favor but reverse the denial of penalty interest.

I. BACKGROUND

On February 14, 2015, plaintiffs were driving through Indiana on their way from Michigan to Florida when they became caught in whiteout conditions and, ultimately, became involved in a multi-vehicle accident.^[2] There were ultimately 15 vehicles found in the freeway pileup when law enforcement arrived. Plaintiffs were not injured in their initial collision. However, when visibility conditions improved, Jerry exited his vehicle while Joanne remained inside. Another vehicle then crashed into plaintiffs' vehicle, causing plaintiffs' vehicle to strike Jerry, seriously injuring him.

That other vehicle has never been identified. Defendant was plaintiffs' insurer, and defendant paid personal injury protection (PIP) benefits but refused to pay uninsured motorist (UIM) benefits.

This is the third time this matter returns to this Court, and most of the essential facts, as set forth above, are undisputed. In the first appeal, we determined that there had been "actual physical contact" between Jerry and the unidentified vehicle for purposes of the parties' insurance policy. Paul v Farm Bureau Ins Co, unpublished per curiam opinion of the Court of Appeals, issued June 19, 2018 (Docket No. 339075) (Paul I). On remand, defendant argued that Jerry would only be entitled to recover UIM benefits under the parties' insurance policy if he could establish that the unidentified driver was negligent. Defendant further argued that all of the vehicles involved in the accident must have encountered the same whiteout conditions, which precluded any possible determination that they-including the driver of the unidentified vehicle-were negligent. The trial court disagreed and granted partial summary disposition in favor of plaintiffs, largely on the basis of an affidavit from Joanne to the effect that visibility had improved by the time of the second collision. The matter returned to this Court, and we vacated the trial court's grant of partial summary disposition in favor of plaintiffs. We reasoned, in part, that the veracity of Joanne's statements regarding the weather conditions was for the jury decide. Paul v Farm Bureau Ins Co, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2020 (Docket No. 345507) (Paul II), p 4.

On remand, the case proceeded to trial.^[3] Jerry testified and could not recall anything about the accident that resulted in him suffering a traumatic brain injury. Joanne testified that as they were driving in Indiana, they encountered snow that initially was not very hard, but conditions became intermittently worse, so Jerry, who was driving, "slowed down and put his flashers on because there would be snow and then there wouldn't be snow." Joanne testified that "all of a sudden, a sheet dropped down in front of us and then we hit" another vehicle in front of them. She opined that Jerry was driving at approximately 25 to 30 miles an hour, and he was unable to avoid the first collision "because you couldn't see it." Neither Joanne nor Jerry were injured in the first collision. Joanne testified that after a few minutes, conditions changed, i.e., "the snow let up," and although the conditions when they were struck were "not completely clear," they had "lightened up because [she] could see the people out of the angle of the driver's side window."

Perhaps two to three minutes after that first collision, Jerry exited the vehicle after someone knocked on the window and a few minutes later plaintiffs' vehicle was struck from behind. This caused the car to spin such that the rear quarter panel of plaintiffs' vehicle struck Jerry. This occurred during a time that, according to Joanne, the whiteout conditions had abated. She testified that the visibility "wasn't a hundred percent good, but it wasn't poor, poor," opining that she would not have been able to see people through the window if visibility was still poor. Eventually, she and Jerry were both transported to a hospital by ambulance.

Broc Edward Smith and Roger Tobias were also involved in the pileup. Smith testified that the snow stopped three or four minutes after he struck a vehicle in front of him, at which time he saw people on the embankment and Jerry already lying in the road. Tobias testified that during the two hours he spent at the scene, the visibility "would come and go," and although it "got a little bit better," the visibility remained poor.

Detective Chris Emerick, Officer Kevin Kane, and Officer Matthew Kling were among the law enforcement personnel who responded to the accident and each provided trial testimony. Kane arrived first, having been only about five minutes away from the scene when he was dispatched; he explained that visibility was clear where he was at the time, but conditions worsened as he approached the crash site. At the scene, he found visibility conditions varied from being able to see no more than a couple of feet beyond his police car to being able to see up to 50 feet ahead. He noted that it was snowing hard but that occasionally the snow would let up. He agreed that he did not know what the conditions were at the time plaintiffs' car was hit. Kling arrived later, and he agreed that the roads were largely clear until approximately half a mile from the accident scene where he encountered whiteout conditions. He slowed down to approximately five miles an hour and did not know he had arrived at the accident scene until he saw Kane's vehicle's emergency lights from approximately 50 feet away. Emerick "did not arrive until probably 30 to 45 minutes after the crash happened," at which time visibility was "pretty limited." The officers agreed that visibility conditions fluctuated during their time at the scene.

Following the close of proofs, the trial court agreed with plaintiffs to instruct the jury regarding the rear-end collision statute, MCL 257.402(a), under which a driver who rear-ends another driver is presumed to be negligent. Over defendant's objection, the trial court declined to instruct the jury regarding the sudden-emergency doctrine, reasoning that although there was conflicting evidence as to the visibility when the unknown driver struck plaintiffs' car, there was no evidence as to the speed he or she had been driving, his or her attentiveness to conditions, or any actions he or she took to avoid the crash. Further, the officers' testimony indicated that the poor visibility began a half mile before the crash site which allowed time to slow down and pull over before reaching the site. Accordingly, even if visibility had not improved by the time that the unknown driver approached, it would be speculative for the jury to conclude that the striking driver's actions did not contribute to the accident. The trial court more fully explained its ruling in its opinion denying defendant's motion for new trial, stating:

The determination as to whether a jury instruction is applicable and accurately provides the law is within the discretion of the trial court. Szymanski v Brown 221 Mich.App. 423, 430; 562 N.W.2d 212 (1997). "Jury instructions should not omit material issues, defenses, or theories that are supported by the evidence." Ward v Consolidated Rail Corp, 472 Mich. 77, 83-84; 693 N.W.2d 366 (2005). A defendant is entitled to have a jury instruction on a defense that is supported by the evidence. People v Mills, 450 Mich. 61, 81; 537 N.W.2d 909 (1995). However, it is error to submit to the jury an instruction or an issue not sustained by the evidence. Jaworski v Great Scott Supermarkets, Inc, 403 Mich. 689, 697; 272 N.W.2d 518 (1978).

The sudden emergency doctrine applies when a collision is shown to have occurred as the result of a sudden emergency not of the defendant's own making. White v Taylor Distributing Co, Inc, 482 Mich. 136, 139-140; 753 N.W.2d 591(2008). When a person faces a sudden emergency "it does not create an invitation to act in a negligent manner; rather, due consideration is given to the circumstances involved." White v Taylor Distributing Co, Inc, 275 Mich.App. 615, 623; 739 N.W.2d 132 (2007), aff'd 482 Mich. 136; 753 N.W.2d 591 (2008). The sudden emergency instruction should be given whenever there is evidence to conclude that an emergency existed within the meaning of the sudden emergency doctrine. Vsetula v Whitmyer, 187 Mich.App. 675, 681; 468 N.W.2d 53 (1991). The defense of sudden emergency "must fail if the sudden emergency results from the defendant's own negligence." Coon v Williams, 4 Mich.App. 325, 337; 144 N.W.2d 821 (1966).

In this case, the sudden emergency doctrine would need to be viewed from the perspective of the unknown hit and run driver. There was no testimony or other evidence presented at trial regarding the specific actions of this driver. Not only is the hit and run driver unidentified, but it is also unknown how fast they were driving, whether they were following other vehicles too closely, whether they were distracted or whether they were struck by another vehicle. Further multiple witnesses testified

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