DEBRA K. ANDRESON and DAVID EDWARD ANDRESON, Plaintiffs-Appellees,
PROGRESSIVE MARATHON INSURANCE COMPANY, Defendant, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant. DEBRA K. ANDRESON and DAVID EDWARD ANDRESON, Plaintiffs-Appellees,
PROGRESSIVE MARATHON INSURANCE COMPANY, Defendant, and PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant. And PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellant.
Circuit Court LC No. 15-000168-NF
Before: Beckering, P.J., and O'Brien and Cameron, JJ.
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. 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. 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.
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.
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.
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."
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. 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.
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,
close of proofs, the trial court found a jury-submissible
question of fact as to whether Debra's injuries met the
threshold. The jury ultimately found that they did
and awarded her $1, 374, 112.68 in damages.
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
appeal, defendant argues that the trial court abused its
discretion by denying its motion for remittitur. We
agree. 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).
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
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).]
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 ...