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Nahshal v. Fremont Insurance Co.

Court of Appeals of Michigan

June 21, 2018

ABDUL NAHSHAL, Plaintiff-Appellee,

          Wayne Circuit Court LC No. 14-013492-NF

          Before: Swartzle, P.J., and Shapiro and Boonstra, JJ.

          SWARTZLE, P.J.

         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.

         I. BACKGROUND

         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 injury protection (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:

Q. Okay. Now Ms. Nahshal, are you a religious person?
A. Yes.
[Defense Counsel]: Your Honor, objection to religion and it's beyond the scope of my cross.
[Plaintiff's Counsel]: And he's attacking her honesty, Your Honor.
[The Trial Court]: The Court will take the answer.
Q. And have you been a religious person all your life?
A. Yes.
Q. Okay. And your husband, he, you married him the year he came to the United States?
A. Correct.
Q. Almost 31 years ago?
A. Um-hmm.
Q. And was he a religious person?
A. He was, he was a little, but when I married him he got to be better, more.
Q. Okay. And how did that change after this collision?
A. He used to go, when he used to come home from work he used to stop at the local mosque and pray whatever pray he's already, 'cause we pray five times a day.
So if one prayer already finished he'll go and pray and come home, so.
Q. And-
A. And I see him, I see him, he used to pray, but now I don't see him pray. I don't, we pray five times a day like I said, I don't see him pray.
Q. Is honesty important to you?
A. It's very, very. Everybody knows me knows I'm honest.
Q. And have you been honest today and-
A. Yes, I have.
Q. -in the past?
Almost three years of recordkeeping for-
A. Yes, I have.
Q. -for the insurance company? ...

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