STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS CHARLOTTE CHALKO, Plaintiff-Appellant, UNPUBLISHED July 9, 2009 v No Muskegon Circuit Court STATE FARM MUTUAL AUTO INSURANCE LC No NF COMPANY, Defendant-Appellee. Before: Sawyer, P.J., and Zahra and Shapiro, JJ. PER CURIAM. Plaintiff appeals as of right from the trial court s order granting a judgment of no cause of action in favor of defendant after a jury trial in this first party, no-fault insurance action. We affirm. This case arises out of a motor vehicle accident that occurred on June 29, Plaintiff suffered an open fracture of her right ankle. Plaintiff filed suit to recover 24-hour a day attendant care benefits. The jury returned a verdict for defendant, finding that plaintiff sustained an accidental bodily injury that arose out of the motor vehicle accident, but that defendant had already paid the allowable expenses for which it was obligated, with the exception that defendant should continue to pay for two hours of attendant care per day going forward. We affirm. Plaintiff argues that the trial court erred in not granting her summary disposition on her claim for attendant care benefits because the undisputed facts show aggravation of a preexisting condition. We review de novo a trial court s decision to grant summary disposition. Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). Defendant moved for partial summary disposition, pursuant to MCR 2.116(C)(10), arguing that defendant should not be responsible for paying for plaintiff s bariatric surgery because that surgery was not associated with her injury from the accident, but rather with her preexisting obesity. MCR 2.116(C)(10) provides that where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(G)(4); Coblentz, supra at 568. Plaintiff responded that the trial court should grant her summary disposition pursuant to MCR 2.116(I)(2). MCR 2.116(I)(2) permits a trial court to enter a judgment for the party opposing a motion for summary disposition if it appears that the opposing party, rather than the moving party, is entitled to judgment as a matter of law. Mithrandir v Dep t of Corrections, 164 Mich App 143, 145; 416 NW2d 352 (1987). -1-

2 The evidence submitted in support of the parties requests for summary disposition established that Dr. Joel C. Seidman opined that I can t see any relationship at all between the injury she suffered and the motor vehicle accident and the respiratory failure that occurred. Dr. Seidman also indicated that there was a greater likelihood that plaintiff would be able to ambulate presently if she was not overweight. In contrast, Dr. Robert B. Pierce indicated that 24-hour attendant care was necessary due to the injuries plaintiff sustained in the automobile accident. This conflicting medical opinion evidence demonstrates that there was a genuine issue of material fact as to whether defendant s need for 24-hour attendant care arose out of the automobile accident. Consequently, summary disposition would not have been proper, pursuant to MCR 2.116(I)(2), because plaintiff would not have been entitled to judgment as a matter of law. Mithrandir, supra. Plaintiff also argues that the trial court erred when it failed to direct a verdict in her favor on the issue of attendant care benefits, even though plaintiff failed to request a directed verdict. We review de novo the trial court s decision on a motion for a directed verdict. Sniecinski v BCBSM, 469 Mich 124, 131; 666 NW2d 186 (2003). However, we review unpreserved claims for plain error. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000). A nofault insurer, under the Michigan no-fault act, MCL et seq., is only liable to pay personal protection benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. At trial, Dr. Seidman opined that I can t see any relationship at all between the injury she suffered and the motor vehicle accident and the respiratory failure that occurred. Dr. Stephen Bloom also opined that, based on his examination of plaintiff and review of her medical records, plaintiff needed 24-hour a day care for her general health, which included her obesity, pulmonary status and chronic lymphodema, but only two hours per day for accident related injuries, i.e. her ankle. Dr. Bloom further testified that plaintiff s obesity was not related to the accident, that her respiratory problems and lung disease were not related to the accident, and that her lymphodema was not related to the accident. In contrast, Dr. Pierce indicated that 24-hour attendant care was necessary due to the injuries plaintiff sustained in the automobile accident. In light of this conflicting medical opinion evidence, a directed verdict would not have been proper because there was a question of fact upon which reasonable jurors could differ regarding whether plaintiff s need for 24-hour attendant care arose out of the automobile accident. Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, ; 711 NW2d 421 (2006). Accordingly, the trial court did not err when it failed to sua sponte grant a directed verdict for plaintiff on her claim for attendant care benefits. Finally, plaintiff argues that the trial court erred by failing to instruct the jury with M Civ JI We review claims of instructional error de novo. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). When requested by a party, a standard jury instruction must be given if it is applicable and accurately states the law. MCR 2.516(D)(2); Chastain v General Motors Corp (On Remand), 254 Mich App 576, 590; 657 NW2d 804 (2002). The determination whether an instruction is accurate and applicable based on the characteristics of a case is in the sound discretion of the trial court. Stevens v Veenstra, 226 Mich App 441, 443; 573 NW2d 341 (1997). -2-

3 M Civ JI instructs, in pertinent part: If an injury suffered by plaintiff is a combined product of both a preexisting [disease/injury/state of heath] and the effects of defendant s negligent conduct, it is your duty to determine and award damages caused by defendant s conduct alone. You must separate the damages caused by defendant s conduct from the condition which was preexisting if it is possible to do so. However, if after careful consideration, you are unable to separate the damages caused by defendant s conduct from those which were preexisting, then the entire amount of plaintiff s damages must be assessed against the defendant. The above-cited instruction is a negligence instruction that simply does not apply in first party, no-fault insurance litigation. This instruction directs the jury to determine whether the injury suffered by plaintiff is a combined product of both a preexisting [state of health] and the effects of defendant s negligent conduct. Stated differently, the jury is instructed to consider whether State Farm was the cause of the automobile accident that resulted in plaintiff s broken ankle. This instruction is inapplicable to the present case and including it in the jury charge would serve no purpose but to confuse the jury. Implicit in plaintiff s argument on appeal is the notion that plaintiff s request for M Civ JI was in fact a request for a modified version of this instruction one that would address defendant s obligations under the no-fault act in light of plaintiff s pre-existing condition. However, the record is without any evidence to support this notion. The trial court s pre trial order required the parties to provide the court with its requested jury instructions three days prior to trial. Plaintiff s first submission of instructions failed to make any reference whatsoever to an instruction that would address plaintiff s pre-existing condition. After trial commenced, plaintiff amended her proposed jury instructions and asked the trial court to give M Civ JI Plaintiff s amended proposed jury instructions did not in any way preserve the notion that this standard instruction should be modified. Further, no modified instruction was presented to the trial court. We conclude the trial court properly declined to include M Civ JI in its charge to the jury. Affirmed. /s/ David H. Sawyer /s/ Brian K. Zahra -3-

4 STATE OF MICHIGAN COURT OF APPEALS CHARLOTTE CHALKO, Plaintiff-Appellant, UNPUBLISHED July 9, 2009 v No Muskegon Circuit Court STATE FARM MUTUAL AUTO INSURANCE LC No NF COMPANY, Defendant-Appellee. Before: Sawyer, P.J., and Zahra and Shapiro, JJ. SHAPIRO, J. (concurring in part and dissenting in part). I concur with the majority opinion that plaintiff was not entitled to summary disposition or a directed verdict on the issue of coverage for her attendant care. I disagree with the majority that the trial court properly refused to give any of plaintiff s requested jury instructions on the issue of benefits for conditions or services that are required due to the combination of an injury arising out of the accident and an injury or illness not arising out of the accident. These instructions concerned the central, if not sole, issue in the case and plaintiff s requested instructions properly stated the law. Moreover, defendant s position is inconsistent with our State s no-fault scheme and no-fault insurers fiduciary duties. Defendant s approach would place the burden of care on victims, their families, or the taxpayers who fund governmentprovided health care rather than on the no-fault insurers who receive payments of premiums in exchange for provision of such benefits. This is an action for first-party Personal Injury Protection ( PIP ) benefits, specifically 24-hour attendant care benefits pursuant to MCL Prior to the June 29, 2001 accident, plaintiff was morbidly obese and had some degree of pulmonary problems. However, she was ambulatory and required few, if any, attendant care services. In the accident, plaintiff suffered a catastrophic compound ankle fracture that could not be fully repaired. Plaintiff claimed and testified that she never regained any significant ability to ambulate after the accident, that as a result of her ankle fracture she became essentially bedridden, and that she eventually required 24-hour per day attendant care as a result. Defendant did not contest the need for 24-hour per day attendant care, as plaintiff was unable to ambulate to the bathroom, get herself out of the house in the event of a fire or other emergency, or even to reposition herself in bed as needed. However, defendant asserted that the broken ankle alone necessitated only two hours per day of attendant care to help plaintiff with her placement and removal of her leg brace. Defendant asserted that the other 22 hours per day of attendant care were required only due to plaintiff s -1-

5 morbid obesity and naturally progressing pulmonary problems and, therefore, PIP coverage did not apply. On appeal, plaintiff raises two issues. First, plaintiff argues that she was entitled to summary disposition or a directed verdict on the issue of coverage for her attendant care. I agree with the majority that there was a question of fact on this issue given the differing testimony of the parties respective medical witnesses. Defendant introduced medical evidence from two hired experts. The pulmonologist retained by defendant, who never actually examined plaintiff, testified after a review of her records that, in his view, plaintiff s need for attendant care was due exclusively to her pulmonary problems and that those pulmonary problems would have naturally evolved to the point at which plaintiff needed 24-hour care regardless of the auto accident. The physiatrist retained by defendant, who examined the plaintiff on a single occasion, testified that plaintiff only required two hours of attendant care related solely to her ankle fracture and that this entailed assisting plaintiff with placing, adjusting and removing her leg brace. The physiatrist agreed that plaintiff would be unable to get herself out of the house in the event of an emergency, or take care of other needs, but testified that he treated other patients with severe ankle fractures and that they are able to crawl out of the house if necessary and meet their other needs. He opined that it was plaintiff s obesity and pulmonary problems that would prevent her from crawling out of the house or caring for herself as needed. Plaintiff introduced contrary medical evidence from her treating family physician, who had treated her for many years both before and after the accident. He testified that prior to the auto accident, plaintiff required no attendant care and that her present level of attendant care was due to the limitations created by the combination of her inability to stand due to the ankle fracture along with her preexisting obesity and pulmonary problems. Plaintiff s physician also testified that plaintiff s immobility caused by the car accident greatly aggravated her preexisting pulmonary and obesity problems and that if the accident had not occurred she would not have required attendant care. In sum, he testified that had plaintiff not broken her ankle in the accident, she would not have required any attendant care services. Given this conflicting testimony, there was plainly a question of fact for the jury as to the extent of coverage owed by defendant. I, therefore, do not agree with plaintiff s claims that she should have received summary disposition or a directed verdict on this issue Plaintiff s second issue on appeal is that the trial court s erroneous failure to give the jury any of her requested causation instructions constituted reversible error. I agree. We review claims of instructional error de novo. In doing so, we examine the jury instructions as a whole to determine whether there is error requiring reversal. The instructions should include all the elements of the plaintiff s claims and should not omit material issues, defenses, or theories if the evidence supports them. Instructions must not be extracted piecemeal to establish error. Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. [Case v Consumers Power Co, 463 Mich 1, 6; 651 NW2d 178 (2000).] -2-

6 Whether an instruction is accurate and applicable based on the characteristics of a case is reviewed for an abuse of discretion. Stevens v Veenstra, 226 Mich App 441, 443; 573 NW2d 341 (1997). Plaintiff offered two theories of causation as to her right to PIP coverage for the 24-hour attendant care. First, she argued that she was entitled to coverage for services that were required due to the combination of the ankle fracture which indisputably was caused by the accident and her preexisting health problems, regardless of whether the accident worsened those problems as such. In other words, plaintiff argued that she should not be refused benefits simply because her preexisting condition increased the extent to which the auto accident injury disabled her. Plaintiff s second theory was that even if her need for attendant care was due solely to the worsening of her obesity and pulmonary problems, she was still entitled to PIP coverage because, as her doctor opined, the reason her weight and her pulmonary health degenerated was the fact that after the accident she became bedridden as a result of the ankle fracture. While plaintiff was not entitled to a directed verdict, she was entitled to have her claims evaluated by the jury upon proper instructions given the facts of the case. However, she was denied this right when the trial court failed to adequately instruct the jury on the central issue of causation. Plaintiff asked the trial court for three instructions on this issue, a Special Instruction, M Civ JI 50.10, and M Civ JI The Special Instruction requested by plaintiff read: Plaintiff s morbid obesity is not an accidental injury that arose out of the automobile accident. State Farm is therefore not liable for any expenses that are solely for plaintiff s obesity or any other medical condition caused only by her obesity. However, State Farm is responsible for any expenses for conditions that are caused by a combination of her obesity and her accident-related injuries. M Civ JI 50.10, colloquially known as the eggshell plaintiff instruction, provides: You are instructed that the defendant takes the plaintiff as he/she finds him/her. If you find that plaintiff was unusually susceptible to injury that will not relieve the defendant from liability for any and all damages resulting to plaintiff as a proximate result of defendant s negligence. M Civ JI 50.11, which deals with aggravation of preexisting conditions, provides: If an injury suffered by plaintiff is a combined product of both a preexisting [disease/injury/state of health] and the effects of defendant s negligent conduct, it is your duty to determine and award damages caused by defendant s conduct alone. You must separate the damages caused by defendant s conduct alone. You must separate the damages caused by defendant s conduct from the condition which was preexisting if it is possible to do so. However, if after careful consideration, you are unable to separate the damages caused by defendant s conduct from those which were preexisting, then the entire amount of plaintiff s damages must be assessed against the defendant. -3-

7 The trial court, for reasons not clearly set out in the record, 1 did not give any of these instructions. 2 However, the trial court did give the jury an instruction requested by the defense on the last day of trial which read: Plaintiff s morbid obesity is not an accidental bodily injury that arose out of the automobile accident. The fundamental issue at trial was whether plaintiff s undisputed need for 24-hour care flowed solely from the accident, did not flow from the accident at all, or flowed in part from the accident. Equally important, if the need for the attendant care flowed in part from the accident, it raised the question of whether the need for such services could be discretely segregated into the number of hours required due to one condition versus the other or whether the two conditions combined in such a fashion that while neither condition on its own would have required the services, when combined, they required the 24-hour care and the need for that care was due to the combination. The need for an accurate instruction regarding multiple causative factors was magnified by defendant s closing argument, in which the jury was told that the question they must answer was whether the problems she finds herself in today, the 24-hour attendant care, is it related to only the ankle fracture (emphasis added). In addition, during closing argument, defense counsel displayed and highlighted the special instruction he had requested which eliminated plaintiff s claim that her obesity had worsened as a result of her immobility since the accident: I instruct you that Plaintiff s morbid obesity is not an accidental bodily injury that arose out of the automobile accident, as a matter of law. 3 The majority takes the position that because M Civ JI is a negligence instruction, it was inapplicable and that absent some requested modification, the trial court properly declined to include it. This view ignores that this Court is required to consider the instructions as a whole. Case, supra. When one looks at the jury instructions in their entirety, it is clear that they improperly omit material issues, defenses, or theories that were supported by the evidence. Id. Moreover, M Civ JI is not in the negligence section of the model jury instructions, but instead in the damages section and so can be readily adapted to nonnegligence cases. Though the trial court s decision not to include that specific instruction 1 Apparently, the arguments concerning these instructions were held in chambers and not on the record. The trial court directed that the parties preserve any instructional issues while the jury was deliberating. Plaintiff s counsel did object to the failure of the court to give any of the three requested instructions. 2 The trial court s refusal to give M Civ JI was curious given that in opening statement, the defense conceded its applicability stating, The judge is going to instruct you, and we agree, and State Farm accepted the responsibility, that because of these preexisting conditions, her morbid obesity, that it posed a unique problem for her with this ankle fracture, and that State Farm was obligated and accepted the obligation to take her as they find her (emphasis added). 3 Since the discussions concerning instructions took place in chambers, it is difficult to discern the trial court s analysis that led to this instruction, particularly in light of plaintiff s treating physician s testimony that her obesity had worsened as a result of the accident. -4-

8 would have been reasonable had it given one of plaintiff s other requested causation instructions, the fact that the trial court declined to give any of the requested instructions, including M Civ JI 50.11, deprived plaintiff of her right to have the jury properly instructed on the central issue of causation. Moreover, given the trial court s failure to provide any reason in the record for this complete denial, I cannot conclude that the trial court acted within the range of reasonable outcomes. It is clear that first party no-fault insurance does provide for coverage for services that result from a combination of conditions so long as one of those conditions is an auto accident injury. In Morales v State Farm Mut Automobile Ins Co, 279 Mich App 720, 761 NW2d 454 (2008), this Court affirmed a verdict for the plaintiff where the plaintiff argued that the auto accident injury was not the sole factor causing his disability, but that his preexisting ailments would not have prevented him from working had he not also suffered the injuries the accident. In that case, we held benefits were due where it was plaintiff s closed head injury from his motor vehicle accident interacting with plaintiff s susceptible diabetes condition that kept him from working (emphasis added). Id. at 739. Defendant suggests that since the standard arising out of instruction in M Civ JI was given, none of plaintiff s requested instructions were necessary to fairly and adequately explain plaintiff s claim and the relevant law to the jury. However, the arising out of instruction speaks only to whether plaintiff s injuries arose out of the use of a motor vehicle as a motor vehicle. Here, there was no question that plaintiff suffered an injury arising out the use of a motor vehicle, i.e. her catastrophic ankle fracture. The issue for the jury, which M Civ JI does not adequately address, is whether a claimant is entitled to PIP coverage for care required due to a combination of the auto-related injury and some other medical condition. In response to plaintiff s claim of error, defendant makes two additional arguments. First, defendant cites Williams v DAIIE, 169 Mich App 301, 304; 425 NW2d 534 (1988), for the principal that injuries compensable under PIP coverage must be attributable to a single identifiable event or accident and suggests this means that plaintiff s need for services must arise solely from the accident. Not only is Williams not controlling precedent, MCR 7.215(J)(1), but the quote is taken completely out of context. The Williams court took this quotation from Wheeler v Tucker Freight Lines, 125 Mich App 123; 336 NW2d 14 (1983). In Wheeler, there was no auto accident or discrete injury-causing event at all. Rather, the plaintiff claimed that years of truck driving had caused him to have low back problems and, since the cause of those problems related to use of an auto, he should be covered by PIP. This Court held that the given the underlying purpose of the no-fault act the term accidental bodily injury required a discrete injury causing event, rather than a series of events spanning many years of driving... not attributable to a single accident. Id. at See also Mollitor v Associated Truck Lines, 140 Mich App 431, 439; 364 NW2d 344 (1985) (noting that the purpose of the restrictive language in Wheeler was to assure that the injury did not merely arise from the repetitive practice of operating an automobile, but from a specific event or events having an identifiable spatial and temporal location ). Moreover, even if this Court finds Williams persuasive, it supports plaintiff s position. In Williams, the plaintiff was seeking wage loss benefits due to an auto accident in August However, the plaintiff had already been off work for more than a year for a preexisting back -5-

9 injury and this Court found that the plaintiff had not submitted any evidence raising any genuine issue of material fact with respect to whether, but for the automobile accident, plaintiff would have returned to work. Williams, supra at 305 (emphasis added). Following from Williams, the proper test when multiple conditions exist that are causally related to the need for PIP services is whether but for the automobile accident injury the plaintiff would not have required the subject services. In this case, plaintiff s accident of June 29, 2001 clearly satisfies Williams, Wheeler and Mollitor. Thus, the question becomes whether, but for that accident, plaintiff would require the attendant care services she indisputably now requires. Second, defendant misapplies language from Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521; 697 NW2d 895 (2005), in which the Supreme Court held that normal food expenses are not compensable under PIP where an individual is cared for at home. Griffith held that to be covered, the services must be related to care, treatment or rehabilitation such that unless the food in question is a diet specifically related to care for the injuries or provided in an institutional setting, the accident is not a but for cause of the provision of the food. Id. at This does not mean, however, that any item or service a person used pre-injury is automatically treated as outside the scope of PIP benefits. As noted in Begin v Mich Bell Tel Co, Mch ; NW2d (Docket No , issued June 25, 2009), slip op p 6, the provision of items or services after injury that a person used before she was injured will still covered by PIP if the claimant s needs for the service or item are different from those of an uninjured person. Whether a product, service or accommodation an injured person uses both before and after a motor vehicle accident is an allowable expense under no fault depend[s]on the particular facts and circumstances involved. Id. at, slip op p 7. In Scott v State Farm Mut Automobile Ins Co, 278 Mich App 578; 751 NW2d 51 (2008), this Court held that the plaintiff had created a question of material fact regarding whether the cost of cholesterol medication was covered by her PIP policy where her doctor testified that her ability to exercise was reduced by the muskuloskelatal injuries from her auto accident and her ability to control her eating was reduced by the head injury she suffered in that accident. In that case, this Court reaffirmed the view that the arising out of test is satisfied by almost any causal relationship. Id. at 585. The Supreme Court declined leave to appeal that decision and Chief Justice Kelly s concurrence specifically approved the almost any causal relationship language. Scott v State Farm Mut Automobile Ins Co, Mich ; NW2d (Docket No , issued June 5, 2009), slip op pp 1-3. In the instant case, plaintiff offered evidence of much more than almost any causal connection by introducing expert medical testimony that had she not suffered the catastrophic ankle fracture, she would never have required 24-hour attendant care. Her physician s testimony established a significant, though not exclusive, causal connection of the need for attendant care with the injury suffered in the auto accident. Defendant insurer is attempting to alter the no-fault scheme by eliminating the insurer s duty to pay for services that grow out of a combination of auto-related and non-auto related conditions. Defendant wants to pay only for those services that are due exclusively to injuries caused in the accident and not due to the combination of those injuries with other conditions. This would elevate PIP causation to a level above and beyond even proximate cause by requiring the auto accident injury to be the sole cause of the need for services while M Civ JI tells us that a cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence. -6-

10 Requiring that the care be provided only insofar as required by the auto accident standing alone or in the context of an otherwise perfectly healthy person is inconsistent with the Legislature s intent when it adopted the no-fault act. As noted by Justice Riley, writing for a unanimous Court in Putkamer v Transamerica Ins, 454 Mich 626, 631; 554 NW2d 683 (1997), [t]he no-fault act is remedial in nature and is to be liberally construed in favor of the persons who are intended to benefit from it. The persons who are intended to benefit from it are people injured in auto accidents and their dependents. Thus, the statute is to be liberally construed in favor of persons injured in automobile accidents and their dependents. Here, where there was evidence to support plaintiff s position that the services were required based on a combination of medical conditions, at least one of which occurred in the auto accident, plaintiff s requested instructions were accurate and applicable. Given that the jury s analysis of the multiple causes of plaintiff s need for attendant care services was the central, if not the sole, issue in the case, the trial court s refusal to give any of the requested instructions constituted reversible error, particularly in light of the defense s arguments on causation, because it resulted in a failure to adequately and fairly present the theories of the parties and the applicable law. Case, supra; see also People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006), quoting Koon v United States, 518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996) (Holding that a court by definition abuses its discretion when it makes an error of law. ). The trial court should have given plaintiff s requested special instruction or, alternatively, fashioned an appropriate modification of M Civ JI or Reversal and remand for new trial is required given the trial court s failure to instruct the jury on the what the law provided if they concluded as fact-finders that plaintiff s need for attendant care was due to a combination of medical conditions some, but not all of which are auto-accident related. For these reasons, I respectfully dissent. /s/ Douglas B. Shapiro -7-