910 N.W.2d 691
Mich. Ct. App.2017Background
- On Oct. 11, 2013, Debra and David Andreson were rear-ended; both injured and uninsured/underinsured (UIM) coverage applied under Progressive policy: $250,000 per person, $500,000 per accident. Policy required plaintiffs to try to obtain at-fault carrier limits and to get insurer’s permission before settling.
- Plaintiffs settled with the at-fault carrier for the $100,000 policy limit ($50,000 each). Progressive initially refused settlement permission; plaintiffs sued and later obtained permission.
- Trial focused on whether each plaintiff suffered a “serious impairment of body function” (threshold injury) and whether Debra’s lumbar surgery was caused by the accident or a preexisting condition. Jury found threshold injuries and awarded Debra $1,374,112.68.
- Plaintiffs’ proposed judgment subtracted the $50,000 setoff, yielding $1,324,112.68 for Debra. Progressive moved for remittitur, arguing recovery should be capped at UIM net limits ($250,000 − $50,000 = $200,000). Trial court entered judgment for the full post-offset jury award and denied remittitur.
- Trial court precluded disclosure of UIM policy limits to the jury. Plaintiffs introduced testimony from Progressive adjuster Marsha Vandercook about notes in her claims log indicating a preliminary view that Debra met threshold; Progressive objected. Plaintiffs later sought attorney fees under MCR 2.405 (offer of judgment); the trial court awarded fees and costs. Court of Appeals consolidated appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury award must be reduced (remittitur) to UIM policy net limit ($200,000) | Andreson contends MCR 2.515(B) requires entry of judgment per special verdict (plaintiff’s larger award should stand after jury verdict). | Progressive argues contractually capped UIM liability controls; absent express waiver, insurer’s exposure cannot exceed policy limits; jury award exceeding limits must be reduced. | Reversed in part: judgment for Debra remanded to be entered for $200,000 (cap applies); trial court abused discretion by denying remittitur. |
| Whether adjuster Vandercook could testify about her claims-log entry/opinion that Debra met threshold | Andreson contends adjuster’s lay opinion was rationally based on her review of records and helpful under MRE 701 and business-record exception. | Progressive contends (1) claims-log entries were privileged or hearsay, (2) lay witness cannot opine on threshold (a legal/medical conclusion), and (3) admission was prejudicial. | Affirmed: admission was within trial court’s discretion under MRE 701 and MRE 803(6); any error was not outcome-determinative. |
| Whether plaintiffs were entitled to attorney fees under MCR 2.405 (offer of judgment) | Andreson argues adjusted verdicts exceeded average offers, so offerees entitled to actual costs and court properly declined to invoke "interest of justice" exception. | Progressive argues interest-of-justice exception applies because case involved legal issues of public importance/first impression, so fees should be denied. | Affirmed: trial court did not abuse discretion; fees awarded (reduced to reflect non-recoverable time) because issues of first impression were not central to verdict or offers. |
| Whether insurer waived policy-limit defense by seeking exclusion of UIM limits from the jury | Andreson argues defense requested limits be excluded and statements during trial show waiver. | Progressive argues no express agreement or intentional relinquishment of right to assert policy limits; nondisclosure for trial fairness isn’t waiver. | Held for Progressive: no waiver; insurer may assert contractual policy limits despite having requested exclusion of limits from jury. |
Key Cases Cited
- Majewski v. Nowicki, 364 Mich. 698 (discussing standard for remittitur)
- Maldonado v. Ford Motor Co., 476 Mich. 372 (abuse-of-discretion review explained)
- Palenkas v. Beaumont Hosp., 432 Mich. 527 (remittitur assessment must be based on objective criteria)
- Tellkamp v. Wolverine Mut. Ins. Co., 219 Mich. App. 231 (absence of express agreement to inform jury of policy limits does not waive contractual limits)
- Rory v. Continental Ins. Co., 473 Mich. 457 (UM/UIM rights and limitations are contractual)
- Dawson v. Farm Bureau Gen. Ins. Co., 293 Mich. App. 563 (policy terms control UIM coverage)
- Kirschner v. Process Design Assocs., Inc., 459 Mich. 587 (limits on using estoppel/waiver to broaden insurance coverage)
- Silberstein v. Pro-Golf of America, Inc., 278 Mich. App. 446 (remittitur principles)
- Smith v. Khouri, 481 Mich. 519 (standard of review for fee awards)