Antoinette Pellegrino v. State Farm Mutual Auto Insurance Co ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANTOINETTE PELLEGRINO, UNPUBLISHED
June 16, 2022
Plaintiff-Appellant,
v No. 355805
Macomb Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 2018-001417-NI
INSURANCE COMPANY,
Defendant-Appellee,
and
MICHAEL ANGELO MAGNOLI, EMILY ROSE
PLUMER, and ERIC WILLIAM PLUMER,
Defendants.
Before: LETICA, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
In this first-party action under the no-fault act, MCL 500.3101 et seq., plaintiff appeals by
right the trial court’s judgment of no cause of action entered after a jury trial. Finding no errors
warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This action arises from two motor vehicle accidents in which plaintiff was involved, one
on December 7, 2016, and the other on August 25, 2017. Plaintiff sought recovery of personal
protection insurance (PIP) benefits from defendant State Farm Mutual Automobile Insurance
Company, her no-fault insurer.1 Plaintiff’s contention was that the December 2016 and August
1
In this opinion, we will refer to State Farm as “defendant,” although we recognize that there were
other defendants in the proceedings below who are not parties to this appeal.
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2017 motor vehicle accidents caused or exacerbated injuries to her neck and back. Defendant, on
the other hand, asserted that plaintiff’s injures were the result of degenerative conditions, all of
which predated the accidents. A jury trial was held during the midst of the COVID-19 pandemic,
at which time several protocols were put in place to protect the participants and the jurors.
Following a three-day trial, the jury found that plaintiff’s injuries did not arise out of the December
2016 or August 2017 accidents. Accordingly, the trial court entered a judgment of no cause of
action in favor of defendant.
Plaintiff subsequently filed a motion for judgment notwithstanding the verdict (JNOV) or
a new trial, arguing, in relevant part, that the jury’s verdict was against the great weight of the
evidence and that her right to a fair trial was violated by the trial court’s implementation of
COVID-19 protocols during trial, including the conducting of jury voir dire by Zoom, and
enforcing strict social distancing and masking requirements. The trial court denied plaintiff’s
motion. This appeal followed.
II. EXCLUSION OF EVIDENCE
A. STANDARD OF REVIEW
“[A] trial court’s decision whether to admit evidence is reviewed for an abuse of discretion,
but preliminary legal determinations of admissibility are reviewed de novo.” Nahshal v Freemont
Ins Co, 324 Mich App 696, 710; 922 NW2d 662 (2018) (quotation marks and citation omitted).
“An abuse of discretion generally occurs only when the trial court’s decision is outside the range
of reasonable and principled outcomes, but a court also necessarily abuses its discretion by
admitting evidence that is inadmissible as a matter of law.” Id. (quotation marks and citation
omitted).
In addition, “[t]his Court reviews questions of statutory interpretation de novo.” Herald
Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006). “The role
of this Court in interpreting statutory language is to ascertain the legislative intent that may
reasonably be inferred from the words in a statute.” Mich Ass’n of Home Builders v Troy, 504
Mich 204, 212; 934 NW2d 713 (2019) (quotation marks and citations omitted). “[W]here the
statutory language is clear and unambiguous, the statute must be applied as written.” Id. (quotation
marks and citations omitted) (alteration in original).
B. ANALYSIS
Plaintiff first argues that the trial court abused its discretion by excluding evidence of, or
reference to, defendant’s handling of her claims. Plaintiff asserts that the evidence was relevant
to (1) whether she suffered a bodily injury for which PIP benefits could be recovered under MCL
500.3105, (2) whether defendant should have paid PIP benefits for allowable expenses under MCL
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500.3107(1)(a), and (3) whether defendant unreasonably refused to pay her claims, or
unreasonably delayed payment of her claims, as contemplated by MCL 500.3148.2 We disagree.
MRE 401 defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Under MRE 402, relevant evidence is
admissible, “except as otherwise provided by the Constitution of the United States, the
Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court.”
Moreover, under MRE 402, “evidence which is not relevant is not admissible.” Otherwise
admissible evidence may also be excluded under MRE 403. In Morales v State Farm Mut Auto
Ins Co, 279 Mich App 720, 730; 761 NW2d 454 (2008), this Court explained:
The trial court also has discretion to exclude even relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, misleading the jury, undue delay, waste of time, or needless presentation
of cumulative evidence. Evidence is unfairly prejudicial when there exists a danger
that marginally probative evidence will be given undue or preemptive weight by
the jury. [Waknin v Chamberlain, 467 Mich 329, 334 n 3; 653 NW2d 176 (2002)
(quotation marks and citations omitted).]
In Douglas v Allstate Ins Co, 492 Mich 241, 257; 821 NW2d 472 (2012), the Michigan
Supreme Court explained that under MCL 500.3105(1),3 an insurer is only liable to pay PIP
benefits if two threshold “causation requirements” are met:
First, an insurer is liable only if benefits are “for accidental bodily injury . .
. .” “[F]or” implies a causal connection. “[A]ccidental bodily injury” therefore
triggers an insurer’s liability and defines the scope of that liability. Accordingly, a
no-fault insurer is liable to pay benefits only to the extent that the claimed benefits
2
MCL 500.3148(1) provides:
Subject to subsections (4) and (5), an attorney is entitled to a reasonable fee
for advising and representing a claimant in an action for personal or property
protection insurance benefits that are overdue. The attorney’s fee is a charge
against the insurer in addition to the benefits recovered, if the court finds that the
insurer unreasonably refused to pay the claim or unreasonably delayed in making
proper payment.
3
MCL 500.3105(1) states:
Under personal protection insurance an insurer is liable to pay benefits for
accidental bodily injury arising out of the ownership, operation, maintenance or use
of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
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are causally connected to the accidental bodily injury arising out of an automobile
accident.
Second, an insurer is liable to pay benefits for accidental bodily injury only
if those injuries “aris[e] out of” or are caused by “the ownership, operation,
maintenance or use of a motor vehicle. . . .” It is not any bodily injury that triggers
an insurer’s liability under the no-fault act. Rather, it is only those injuries that are
caused by the insured’s use of a motor vehicle. [Douglas, 492 Mich at 257 (citation
omitted).]
Additionally, as explained in Hamilton v AAA Mich, 248 Mich App 535, 543; 639 NW2d
837 (2001), for a no-fault insurer to be liable for a particular expense, an insured party must present
evidence of the following:
(1) the expense must have been incurred by the insured, (2) the expense must have
been for a product, service, or accommodation reasonably necessary for the injured
person’s care, recovery, or rehabilitation, and (3) the amount of the expense must
have been reasonable.
In this case, the trial court’s decision to exclude evidence of or reference to defendant’s
handling of claims in general, or plaintiff’s claims specifically, did not fall outside the range of
reasonable and principled outcomes. While plaintiff asserts that the evidence is relevant to (1)
whether her injuries arose from the use or operation of a motor vehicle, or (2) the recovery of PIP
benefits for allowable expenses under MCL 500.3107(1)(a), we agree with the trial court that
evidence regarding how defendant processed plaintiff’s claims for PIP benefits would not have a
tendency to make it more probable or less probable that plaintiff’s injuries arose from the use or
operation of a motor vehicle. Therefore, the evidence would not be relevant. See MRE 401.
Similarly, evidence of how plaintiff’s claims were handled by defendant would not tend to show
that plaintiff incurred reasonable charges for reasonably necessary services for her care, recovery,
and rehabilitation. See MCL 500.3107. To the extent that plaintiff claims that the evidence of
defendant’s handling of her claims would have shed light on whether defendant’s refusal to pay
PIP benefits was unreasonable, or whether the delay in paying PIP benefits was unreasonable, this
is a determination underpinning a decision whether to award no-fault attorney fees, which is an
issue for the trial court to decide after a trial. See MCL 500.3148.
In support of her argument that the trial court abused its discretion when it granted
defendant’s motion in limine, plaintiff relies on this Court’s decision in Morales. In that case, we
affirmed the trial court’s order admitting evidence regarding the manner in which the defendant
insurer processed the plaintiff’s claim for PIP benefits, holding that it was relevant to “whether the
plaintiff provided [the] defendant reasonable proof of the fact and amount of the loss sustained for
purpose of penalty interest under MCL 500.3142(2).” Morales, 279 Mich App at 731.
Additionally, while the evidence was not directly relevant to the plaintiff’s claim for PIP benefits,
we held that it was relevant to whether the defendant fairly processed the plaintiff’s claim for PIP
benefits, an issue that was key to the plaintiff’s theory of the case. Id.
As in Morales, the trial court instructed the jury in this case that plaintiff would be entitled
to interest under the no-fault act if the payment of PIP benefits was overdue, and that plaintiff had
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the burden of proof with respect to whether she provided reasonable proof of loss and that the
defendant failed to pay the claim within 30 days. Accordingly, even if the evidence of defendant’s
claims handling was not directly relevant to plaintiff’s recovery of PIP benefits under MCL
500.3105 or the payment of allowable expenses under MCL 500.3107(1)(a), under Morales, it was
arguably relevant to the limited issue of the recovery of interest under MCL 500.3142(2).
However, because the jury found that plaintiff’s injuries did not arise out of the December 2016
or August 2017 accidents, it never reached the issue of whether plaintiff was entitled to no-fault
penalty interest. Accordingly, any error in this regard was harmless under MCR 2.613(A).4
Therefore, plaintiff is not entitled to appellate relief with respect to this issue.
III. THE GREAT WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW
We review a trial court’s decision denying a motion for a new trial for an abuse of
discretion. Anderson v Progressive Marathon Ins Co, 322 Mich App 76, 91; 910 NW2d 691
(2017). “An abuse of discretion generally occurs only when the trial court’s decision is outside
the range of reasonable and principled outcomes . . . .” Nahshal, 324 Mich App at 710 (quotation
marks and citation omitted).
B. ANALYSIS
Plaintiff next argues that the trial court erred when it denied her motion for JNOV or a new
trial, but the thrust of her argument is that the jury’s determination that her injuries did not arise
out of the motor vehicle accidents is against the great weight of the evidence. We disagree.
When deciding whether to grant a new trial on the basis that a verdict is against the great
weight of the evidence, the trial court must determine whether the overwhelming weight of the
evidence favors the unsuccessful party. Barnes v 21st Century Premier Ins Co, 334 Mich App
531, 551; 965 NW2d 121 (2020). This Court will defer to the trial court’s determination whether
a verdict is against the great weight of the evidence, and we will not interfere with the jury’s verdict
by substituting our own judgment for that of the jury, unless the record evidence preponderates
against the verdict to such an extent “that it would be a miscarriage of justice to allow the verdict
to stand.” Id.We reject plaintiff’s assertions that the evidence preponderated against the jury’s verdict
to the extent that allowing the verdict to stand would be a miscarriage of justice as the
overwhelming weight of the evidence did not favor plaintiff. Contrary to plaintiff’s arguments,
4
MCR 2.613(A) provides:
An error in the admission or the exclusion of evidence, an error in a ruling
or order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice.
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the evidence admitted at trial supports the jury’s finding that plaintiff’s injuries did not arise out
of the December 2016 or August 2017 accidents. While Dr. Richard Easton shared his opinion
that plaintiff’s surgeries were causally related to the two accidents, Dr. Saad Naaman offered
testimony demonstrating plaintiff was experiencing a degenerative condition in both her back and
neck before the December 2016 accident. It appears that the jury found Dr. Naaman’s testimony
more credible. See Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 605-606; 886 NW2d
135 (2016) (“[I]n reviewing a motion for JNOV we must construe all evidence and inferences from
the evidence in the nonmoving party’s favor”). While plaintiff also testified that her back and neck
pain were aggravated and exacerbated by injuries she sustained in the motor vehicle accidents, and
Dr. Easton’s medical opinion supported this testimony, considering the evidence of plaintiff’s
history of back and neck problems before the accident, and that these conditions were degenerative
in nature, the overwhelming weight of the evidence at trial did not preponderate against the jury’s
verdict to the extent that it would be a miscarriage of justice to allow the verdict to stand. See
Barnes, 334 Mich App at 551. Accordingly, the trial court did not abuse its discretion when it
denied plaintiff’s motion for a new trial.
IV. RIGHT TO A FAIR TRIAL
A. STANDARD OF REVIEW
We review a trial court’s decision denying a motion for a new trial for an abuse of
discretion. Anderson, 322 Mich App at 91. “An abuse of discretion generally occurs only when
the trial court’s decision is outside the range of reasonable and principled outcomes . . . .”
Nahshal, 324 Mich App at 710 (quotation marks and citation omitted).
B. ANALYSIS
Lastly, plaintiff also argues that she was denied a fair trial as a result of the precautions and
protocols implemented because of the COVID-19 pandemic. We disagree.
As the Michigan Supreme Court observed in Wood v DAIIE, 413 Mich 573, 581; 321
NW2d 653 (1982), “[t]he right to jury trial in civil litigation is of constitutional dimension,” and
is safeguarded by Const 1963, art 1, § 14. See also Lowrey v LMPS & LMPJ, Inc, 313 Mich App
500, 507; 885 NW2d 638 (2015), rev’d in part and vacated in part on other grounds 500 Mich 1(2016) (“The parties to a civil action generally have the right to have a jury hear the evidence and
resolve their dispute.”).
In support of her claim that she was deprived of a fair trial, plaintiff relies on Reetz v
Kinsman Marine Transit Co, 416 Mich 97, 103 n 9; 330 NW2d 638 (1982), in which the Court
stated that “the trial court has a duty to assure that all parties who come before it receive a fair
trial.” In Reetz, the defendant argued that the plaintiff’s closing argument was so inflammatory
that it required a new trial. Id. at 99. In affirming this Court’s decision to reverse and remand for
a new trial, the Michigan Supreme Court explained that a verdict that is “tainted” by error should
not be allowed to stand simply because the parties, or the trial court, failed to protect the interest
of the party who incurred prejudice by timely action. Id. at 103.
As an initial matter, we observe that the trial court’s COVID-19 protocols complied with
administrative orders, local administrative orders, and guidelines promulgated by our Supreme
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Court and the State Court Administrative Office. See Administrative Order 2020-19 (“Courts shall
continue to expand the use of remote participation technology (video or telephone) as much as
possible to reduce any backlog and to dispose of new cases efficiently and safely. . . . [A]s courts
expand their use of remote technology tools, courts must continue to verify that participants are
able to proceed remotely, and should permit some participants to appear remotely even if all
participants are not able to participate electronically.”); Administrative Order 2020-14 (limiting
court room capacity to 10 and imposing social distancing of 10 feet). 5 With respect to plaintiff’s
claim that the COVID-19 protocols interfered with the jurors’ abilities to see and hear evidence,
as the trial court recognized, what ultimately renders this claim unsuccessful is that plaintiff cannot
point to specific examples in the record to support her claim that the jurors could not see or hear
the evidence during trial. Although plaintiff asserts that jurors shared this concern after trial, she
has not submitted any affidavits in support of this claim and she does not point to any specific
portion of the record to corroborate this allegation. The trial court noted in its opinion that it had
observed conversations with jurors after the verdict in which some of the jurors expressed that they
had hearing difficulties, but it noted that it did not hear any statements regarding whom the jurors
had trouble hearing, such as whether it was counsel, witnesses, or the trial court itself.
Moreover, the trial court instructed the jurors on several occasions that they should speak
up and make the court aware if they could not hear counsel, the trial court, or witnesses. Counsel
for plaintiff also asked the jurors during trial if they could hear her properly as she was speaking
with her mask on. On the first day of trial, before testimony commenced, the trial court indicated
that it had checked the sight lines of visibility between the jurors and the witness box, and
instructed the jurors to notify the court “if there’s any issues at all.” Also, when plaintiff first took
the stand, the trial court inquired whether the jurors could hear her, and no juror responded that
they could not. During defense counsel’s cross-examination of plaintiff, the trial court interrupted
counsel to confirm that the jurors had a good sight line of plaintiff, and no juror indicated that they
did not. Before closing jury instructions, the trial court again asked the jurors if they were having
any trouble hearing the court, instructing them to raise their hand if they did. When one juror
indicated that there was difficulty hearing the court, the court stated that it would keep its voice up
during the jury instructions.
In sum, the record reflects that the jurors were instructed to speak up if they could not hear
the parties or witnesses or see any evidence presented at trial, and that the court undertook great
efforts throughout the trial to ensure that the jurors were indeed able to see and hear the witnesses.
Jurors are presumed to have followed their instructions. Zaremba Equip, Inc v Harco Nat’s Ins
Co, 302 Mich App 7, 25; 837 NW2d 686 (2013).
Moreover, the record does not support plaintiff’s assertion that potential jurors who did not
want to participate as jurors because of COVID-19 could simply opt out of jury duty, or that the
trial court instructed the jury pool accordingly. Rather, although voir dire was conducted remotely
by Zoom, the court advised the jurors that once a jury was selected, the jury would have to report
to the court. The court also summarized the protocols that would be in place to protect the safety
of the jurors who were present in person. Later, the court instructed the jurors that they could be
5
Both AO 2020-19 and AO 2020-14 were rescinded after the conclusion of plaintiff’s trial.
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excused from serving on the jury in one of two ways: (1) by cause if there was a valid reason why
a person could not or should not serve as a juror, and (2) by a party without any reason “because
the law gives the lawyers for each side the right to excuse a limited number of jurors without giving
any reason for doing so.” There is no evidence in the record that any jurors who felt uncomfortable
attending trial in person could simply opt out of jury duty.
Accordingly, plaintiff has not demonstrated that her right to a fair trial was undermined by
the COVID-19 protocols, and the trial court did not abuse its discretion by denying plaintiff’s
motion for a new trial on this basis.
Affirmed. Defendant, as the prevailing party, may tax costs. MCR 7.219(A).
/s/ Anica Letica
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
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