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Andreson v. Progressive Marathon Insurance Co.

Court of Appeals of Michigan

November 21, 2017

DEBRA K. ANDRESON and DAVID EDWARD ANDRESON, Plaintiffs-Appellees,
v.
PROGRESSIVE MARATHON INSURANCE COMPANY,[1] Defendant, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant. DEBRA K. ANDRESON and DAVID EDWARD ANDRESON, Plaintiffs-Appellees,
v.
PROGRESSIVE MARATHON INSURANCE COMPANY, Defendant, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant. And PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant.

         Eaton Circuit Court LC No. 15-000168-NF

          Before: Beckering, P.J., and O'Brien and Cameron, JJ.

          O'BRIEN, J.

         In Docket No. 334157, defendant appeals as of right the trial court's order awarding plaintiff Debra Andreson (Debra) $1, 324, 112.68 following a jury trial.[2] In Docket No. 336351, defendant appeals as of right the trial court's order awarding attorney fees and taxable costs to plaintiffs. We ordered these appeals to be consolidated.[3] We reverse in part and remand for entry of a judgment in favor of Debra and against defendant in the amount of $200, 000. In all other respects, we affirm.

         On October 11, 2013, plaintiffs were stopped in their vehicle at a red light when it was struck from behind by a different vehicle driven at a high rate of speed. Both plaintiffs suffered injuries as a result of the collision, and it was uncontested that plaintiffs were not at fault. Plaintiffs were insured by defendant at the time of the accident, and their insurance policy included a provision for underinsured motorist (UIM) benefits in the amount of $250, 000 per individual, capped at a total of $500, 000 per accident. The UIM contract provision required plaintiffs to pursue recovery from the at-fault driver and obtain the maximum policy limits from the at-fault driver's insurance carrier before they could collect UIM coverage from defendant. It also required plaintiffs to obtain defendant's permission before reaching a settlement with the at-fault driver or the at-fault driver's insurance carrier.

         Defendant initially declined to grant plaintiffs permission to settle with the at-fault driver's insurance carrier. On February 18, 2015, plaintiffs filed this lawsuit against defendant in an attempt to obtain that permission. Eventually, defendant agreed to grant plaintiffs permission to settle. The parties agree that plaintiffs obtained a settlement of $100, 000 from the at-fault driver's insurance carrier, the maximum limit of that policy, allocated at $50, 000 per plaintiff.

         After the settlement, plaintiffs sought payment from defendant for the difference between the maximum amount of their UIM coverage and the settlement amount. Defendant refused to pay plaintiffs' UIM benefits, arguing that plaintiffs' injuries failed to qualify as threshold injuries. With respect to Debra, defendant alleged that her lower back injuries arose from a pre-existing condition and were not causally related to the October 11, 2013 accident. The case proceeded to trial, at which the central issues were (1) whether plaintiffs suffered serious impairments of body function as a result of the at-fault driver's negligence and (2) whether Debra's lower back injuries were causally related to the auto accident. Before trial, defendant filed a motion in limine to preclude the jury from being told the UIM policy limits. The trial court granted defendant's motion, finding that "[a]ny evidence of the UIM policy limits, if relevant, would be more prejudicial than probative under MRE 403."

         Testimony at trial indicated that Debra suffered various physical injuries as a result of the auto accident. Her neurosurgeon, Dr. Christopher Abood, testified that he had served as Debra's treating physician since October 2008 when she first came to him complaining of low back pain. Dr. Abood indicated that, although she was experiencing pain at that time (five years before the auto accident), the pain was manageable and was not preventing her from working or living her normal life. Dr. Abood did not see Debra for the five-year period from October 2008 to August 2013. During that time, she received a series of facet injections from a different doctor to whom Dr. Abood had referred her for treatment.[4] Debra returned to see Dr. Abood on August 22, 2013, indicating that she had fallen on her back and experienced a significant increase in pain and heaviness in both legs, which severely limited her ability to walk any distance. Dr. Abood diagnosed the pain as coming from a narrowing of the spinal canal.

         Dr. Abood next saw Debra on November 11, 2013, after she was in the accident at issue. At that time, she was experiencing severe pain in her back and legs. Dr. Abood testified that, in his medical opinion, the increased low back pain was not related to her earlier fall. According to Dr. Abood, Debra's "spinal condition was severely aggravated by the automobile accident, causing severe worsening of her back and leg symptoms and pain." Dr. Abood recommended that Debra have back surgery, which he performed on December 11, 2013.

         At the close of proofs, the trial court found a jury-submissible question of fact as to whether Debra's injuries met the threshold.[5] The jury ultimately found that they did and awarded her $1, 374, 112.68 in damages.

         After trial, plaintiffs' counsel filed a proposed judgment for $1, 324, 112.68 for Debra, which reflected the jury's special verdict minus $50, 000 to reflect the setoff from the earlier settlement. On May 19, 2016, defendant filed an objection to the entry of judgment with respect to Debra, arguing that the judgment in her favor should be limited to $200, 000 because her recovery was capped by the $250, 000 UIM policy limit minus the $50, 000 setoff. Following a hearing, the trial court determined that it was required to enter a judgment consistent with MCR 2.515(B), which provides that "[a]fter a special verdict is returned, the court shall enter judgment in accordance with the jury's findings." Accordingly, the trial court entered a judgment in favor of Debra for $1, 324, 112.68, which reflected the jury's award minus the $50, 000 settlement offset. Defendant filed a motion for remittitur, arguing that the jury's verdict must be reduced because it was more than the UIM policy limits. The trial court denied defendant's motion.

         On appeal, defendant argues that the trial court abused its discretion by denying its motion for remittitur. We agree.[6] Appellate review of a grant or denial of remittitur is limited to the determination of whether an abuse of discretion occurred. Majewski v Nowicki, 364 Mich. 698, 700; 111 N.W.2d 887 (1961). A trial court abuses its discretion when it chooses an outcome outside of the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809 (2006).

         "Broadly defined, remittitur is the procedural process by which a verdict of the jury is diminished by subtraction." Pippen v Denison, 66 Mich.App. 664, 674; 239 N.W.2d 704 (1976) (emphasis omitted). "As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside." Id. at 675 (citation and quotation marks omitted).

In determining whether remittitur is appropriate, a trial court must decide whether the jury award was supported by the evidence. Diamond v Witherspoon, 265 Mich.App. 673, 693; 696 N.W.2d 770 (2005). This determination must be based on objective criteria relating to the actual conduct of the trial or the evidence presented. Palenkas v Beaumont Hosp, 432 Mich. 527, 532; 443 N.W.2d 354 (1989). The power of remittitur should be exercised with restraint. Hines v Grand Trunk W R Co, 151 Mich.App. 585, 595; 391 N.W.2d 750 (1985). If the award for economic damages falls reasonably within the range of the evidence and within the limits of what reasonable minds would deem just compensation, the jury award should not be disturbed. Palenkas, supra at 532-533. [Silberstein v Pro-Golf of America, Inc, 278 Mich.App. 446, 462; 750 N.W.2d 615 (2008).]

         Defendant argues that the trial court erred in denying its motion for remittitur because the verdict awarded by the jury was in excess of the UIM policy limits. Neither uninsured motorist (UM) coverage nor UIM coverage is required by Michigan law, and, therefore, "the terms of coverage are controlled by the language of the contract itself, not by statute." Dawson v Farm Bureau, 293 Mich.App. 563, 568; 810 N.W.2d 106 (2011). As our Supreme Court has explained, "Uninsured motorist coverage is optional-it is not compulsory coverage mandated by the no-fault act, " and as such, "the rights and limitations of such coverage are purely contractual . . . ." Rory v Continental Ins Co, 473 Mich. 457, 465-466, 703 N.W.2d 23 (2005). "It is not the province of the ...


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