Ross v Dyment and Auto-Owners Ins Co (COA – UNP 3/14/2019; RB #3862)


Michigan Court of Appeals; Docket # 341273; Unpublished
Judges Borrello, Swartzle, and Cameron; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 

Trial Procedure Issues [§3135] 


In this unanimous unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s judgment in favor of plaintiff Michelle Ross (“Ross”), following a jury trial.  Defendant Auto-Owners Insurance Company (“Auto-Owners”) sought a new trial on appeal, arguing that plaintiff’s counsel made the prejudicial assertion that Auto-Owners’ voluntary payment of PIP benefits doubled as an admission that plaintiff suffered a threshold injury in the third party case.

Auto-Owners argued that, at trial, Ross was allowed to repeatedly conflate the threshold requirement for a first party claim—accidental bodily injury—with the threshold requirement for a third party claim—serious impairment of body function, or permanent serious disfigurement—and thus argue that Auto-Owners’ voluntary payment of PIP benefits constituted an admission that Ross had also suffered a threshold injury in the third party case.  On review of the record, however, the Court of Appeals found no instances where Ross conflated the two standards.  Rather, the fact that Auto-Owners voluntarily paid PIP benefits was used only “to counter defendant’s argument that plaintiff never suffered an injury whatsoever from the automobile accident.

The fact that plaintiff was using the voluntary payment of her PIP benefits as evidence that she was generally injured in the accident—and not as proof that she sustained a serious impairment of body function—was abundantly clear from the previous instances in which the PIP benefits were raised. Furthermore, the jury was also explicitly instructed regarding plaintiff’s burden to show a serious impairment of a body function or permanent serious disfigurement separate from and in addition to a showing that plaintiff was generally “injured” as a proximate result of Dyment’s negligence. Additionally, the jury sat through four days of testimony regarding the injuries plaintiff claimed to have sustained from the accident, the seriousness of those injuries, and their impact on plaintiff’s life. Mention of the fact that defendant voluntarily paid first-party benefits was miniscule in relation to the testimony from plaintiff, her husband, and her doctor, that the accident caused objectively manifested injuries and exacerbated others such that plaintiff’s ability to lead her normal life was impaired. Finally, and importantly, there is no doubt that, to the extent the statement was improper, it could have -7- been cured by a curative instruction had defendant so requested. See Badiee, 265 Mich App at 374.

The Court of Appeals thus affirmed the jury verdict in favor of Michelle Ross.