Tamiko Colts v. Progressive Marathon Insurance Company ( 2021 )

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
TAMIKO COLTS, UNPUBLISHED
March 11, 2021
Plaintiff-Appellant/Cross-Appellee,
v No. 349327
Macomb Circuit Court
PROGRESSIVE MARATHON INSURANCE LC No. 2017-003202-NF
COMPANY,
Defendant,
and
PAUL BRANT, LLC, and PAUL IVAN BRANT,
Defendants-Appellees/Cross-
Appellants.
Before: TUKEL, P.J., and JANSEN and CAMERON, JJ.
PER CURIAM.
Plaintiff Tamiko Colts appeals a judgment of no cause of action that was entered by the
trial court on the basis of the jury’s verdict in this negligence action. Colts argues that the trial
court abused its discretion by admitting hearsay statements into evidence. Defendants Paul Ivan
Brant and Paul Brant, LLC, cross-appeal, arguing that the trial court erred by denying their motion
for directed verdict. We affirm.
I. BACKGROUND
On the afternoon of April 19, 2016, Colts and Brant were both traveling westbound on
Eight Mile Road in their respective vehicles. Brant, who was operating a semitruck with two
flatbed trailers attached, was driving ahead of Colts’s minivan. At some point, a collision occurred.
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Andrew Maas, who was a passenger in a nearby vehicle, heard a noise that “forced” him to look
up from his cell phone. Maas saw Colts’s minivan in “mid-air.” Colts did not recall the collision
or recall seeing Brant’s semitruck in the roadway. Although Brant felt a “bump,” he believed that
it was a pothole and continued driving. After Brant was informed by a passing unknown motorist
that “a vehicle [had] hit [his] trailer,” Brant and the unknown motorist pulled over. The unknown
motorist reiterated to Brant that “a vehicle [had] hit [his] trailer.” The unknown motorist told Brant
that he was unable to stay and drove away before law enforcement arrived.
Officer Zachary Lemond arrived at the scene to investigate. Officer Lemond noted that
Brant’s “semitruck had damage on the right-side rear” and that Colts’s minivan “had damage on
the left side of the front.” Officer Lemond noted that the damage was “fresh.” He concluded that
“the minivan was slightly behind and to the right or to the rear and right of the semitruck” at the
time the collision occurred.
Colts was allegedly injured in the collision, and she was transported to the hospital by
ambulance. Colts later filed a negligence action against Brant, alleging that he had negligently
operated his semitruck.1 Colts also filed an action against Paul Brant, LLC, alleging that it had
negligently entrusted its semitruck to Brant. Before trial, Colts moved to preclude the statements
that were made to Brant by the unknown motorist. Colts alleged that the statements amounted to
inadmissible hearsay and that the statements did not fall within a hearsay exception. Defendants
opposed the motion. The trial court ultimately denied Colts’s motion, concluding that the
statements were admissible as present sense impressions. The trial court also concluded that the
statements would have been admissible under the excited utterance exception.
Thereafter, trial commenced. Colts called witnesses to testify concerning the
circumstances of the collision, including Officer Lemond and Maas. After Colts presented all of
her proofs, defendants moved for a directed verdict. After hearing oral argument from the parties,
the trial court denied defendants’ motion, holding that a question of fact existed as to whether
defendants’ actions were the cause of Colts’s alleged injuries. The jury later found that defendants
were not negligent, and the trial court entered a judgment of no cause of action. These appeals
followed.
II. ANALYSIS
Colts argues that the trial court abused its discretion by denying her motion to exclude the
hearsay statements of the unknown motorist. Specifically, Colts argues that the statements by the
unknown motorist were “hearsay and no foundational evidence existed for the trial court to
qualify” the statements as present sense impressions or excited utterances. We conclude that the
trial court did not abuse its discretion by admitting the evidence.
When an evidentiary issue is properly preserved, we review the trial court’s decision to
admit or exclude evidence for an abuse of discretion. Nahshal v Fremont Ins Co, 324 Mich App
696, 710; 922 NW2d 662 (2018). However, “preliminary legal determinations of admissibility are
1
Colts also filed a claim against Progressive Marathon Insurance Company. Progressive was later
dismissed from the action by stipulation of the parties.
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reviewed de novo.” Id. (quotation marks and citation omitted). If an error is found, we must
determine whether the error “was harmless error or reversible error under MRE 103(a). A trial
court’s error is harmless if, based on review of the entire record, it is more probable than not that
the error was not outcome determinative; if the probability runs in the other direction, then it is
reversible error.” Id. at 717.
Under MRE 801(c), hearsay “is a statement, other than the one made by the declarant while
testifying at the trial . . ., offered in evidence to prove the truth of the matter asserted.” Unless
otherwise provided by the rules of evidence, hearsay is not admissible. MRE 802. In this case,
the unknown motorist’s statements are undisputedly hearsay. The trial court found that the
unknown motorist’s statements were admissible because they constituted present sense
impressions, which is an exception to the hearsay rule. MRE 803(1). We conclude that, even if
the trial court erroneously failed to require defendants to lay the appropriate foundation before the
court concluded that the statements were admissible, the unknown motorist’s statements were
admissible under MRE 803(1).
A present sense impression is “[a] statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately thereafter.” MRE
803(1). This exception is justified by
the trustworthiness of the statement, which is based on the substantially
contemporaneous nature of the statement with the underlying event. For hearsay
evidence to be admissible under this exception, three criteria must be met: (1) the
statement must provide an explanation or description of the perceived event, (2) the
declarant must personally perceive the event, and (3) the explanation or description
must be substantially contemporaneous with the event. [Ykimoff v Foote Mem
Hosp, 285 Mich App 80, 105; 776 NW2d 114 (2009) (quotation marks and citations
omitted).]
Furthermore, “in order to establish the foundation for the admission of a hearsay statement
pursuant to the present sense impression exception, other evidence corroborating the statement
must be brought forth to ensure its reliability.” Id. at 106.
In this case, Brant testified that he was traveling west on Eight Mile Road at all relevant
times. At one point, Brant stopped at a red light at the intersection of Eight Mile Road and Mound
Road. Brant proceeded through the intersection after the light turned green and felt a “bump,”
which he assumed was a pothole. Brant testified that, a “[s]hort ways after that, not far,” a vehicle
approached his driver’s side. The unknown motorist was “blowing the horn” and “trying to get
[Brant’s] attention.” Brant rolled down his window, and the unknown motorist, who had his
passenger side window rolled down, informed Brant that “a vehicle [had] hit [Brant’s] trailer.”
After Brant and the unknown motorist pulled over, the unknown motorist reiterated that “a vehicle
[had] hit [Brant’s] trailer.” Thus, the statements provided a description of the perceived event.
With respect to whether the unknown motorist personally perceived the collision, Colts
argues that the unknown motorist could not have seen the collision because the motorist was
driving on the left side of Brant’s semitruck. It appears that Colts’s conclusion is drawn from the
fact that the unknown motorist communicated with Brant through Brant’s driver’s side window
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and that the collision seemed to have occurred on the middle right side of the trailer. However, it
is not known exactly where the unknown motorist’s vehicle was when the collision occurred.
Indeed, the unknown motorist could have been in a position to see the collision and then could
have quickly driven next to Brant in order to get his attention. Notably, Brant testified that it was
possible that the unknown motorist’s vision would not have been entirely obscured even if he was
on the left side of the semitruck at the time of collision. Brant noted that his load was “only about
three-[feet] tall” and that it was “not very high.” Furthermore, it is implicit in the unknown
motorist’s statements that he saw the collision because, after the motorist got Brant’s attention
with his horn, he had communicated the details of the collision to Brant. Indeed, the evidence
supports that the unknown motorist was alone in the vehicle. Thus, we conclude that the record
evidence supports that the unknown motorist personally perceived the collision.
With respect to whether the unknown motorist’s statements were substantially
contemporaneous with the collision, a statement must have been made while the declarant is
“perceiving the event or condition, or immediately thereafter.” MRE 803(1). However, “in many,
if not most, instances precise contemporaneity is not possible and hence a slight lapse is
allowable.” People v Hendrickson, 459 Mich 229, 236; 586 NW2d 906 (1998) (quotation marks
and citation omitted). “[T]he phrase immediately thereafter is not synonymous with instantly
thereafter,” Berryman v K Mart Corp, 193 Mich App 88, 100; 483 NW2d 642 (1992) (quotation
marks and citation omitted), and “a four-minute interval between the perceived event and a
declarant’s statement satisfie[s] the ‘immediately thereafter’ condition,” Hendrickson, 459 Mich
at 236.
In this case, Brant testified that the unknown motorist approached him a short period of
time after Brant proceeded through the intersection. Specifically, Brant testified that he felt a
“bump,” which he initially believed to be a pothole, after the traffic light turned green. “[P]retty
much instantly after” Brant felt the bump, the unknown motorist approached Brant’s driver’s side
door and began honking his horn. Brant noted that he was not traveling very fast because he had
“a loaded set of doubles[.]” Brant estimated that he was going between 15 and 20 miles per hour.
While the evidence supports that Brant stopped his semitruck a fair distance away from the location
of the collision, Brant testified that pulling his semitruck over was not an easy feat given the size
of the trailers. Indeed, the record supports that Brant had to move over from the “second lane” to
the right “curb lane,” which required waiting until traffic had cleared. As already stated, the
collision occurred on Eight Mile Road in the afternoon.
While Brant is correct that the trial court failed to specifically consider whether the
unknown motorist’s statements were corroborated by other evidence, the record evidence supports
that they were corroborated. Brant’s testimony supported that there was damage to the back, right-
hand corner of the lead trailer. This is consistent with Officer Lemond’s testimony. Officer
Lemond testified that Brant’s “semitruck had damage on the right-side rear” and that Colts’s
vehicle “had damage on the left side of the front.” Officer Lemond concluded that “the minivan
was slightly behind and to the right or to the rear and right of the semitruck” at the time the collision
occurred. Photographs of the damaged vehicles were admitted into evidence.
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There is also no dispute that a collision occurred at the time and place when and where the
unknown motorist claimed to have seen a vehicle hit Brant’s trailer. Brant informed Officer
Lemond of the unknown motorist, and specifically described to Officer Lemond what the motorist
told him, as well as the motorist’s gender, ethnicity, and estimated age. Brant also described the
unknown motorist’s vehicle, including a business logo that was on the side of the vehicle, and
provided a license plate number. Thus, we conclude that there was sufficient corroboration that
the unknown motorist had observed the collision at issue in this case. The trial court, therefore,
did not abuse its discretion by admitting the unknown motorist’s statements into evidence.2
Moreover, even if we were to conclude that the evidence was not admissible, the error
would have been harmless. Colts did not remember the collision, and Maas did not see the
collision. Rather, Maas looked up from his cell phone after he heard a noise. Maas testified that
he saw a minivan “in mid-air” and a semitruck “straddling two lanes.” Although Maas believed
that Brant had “sideswiped” Colts’s vehicle, Maas agreed that he was speculating as to the cause
of the collision. Indeed, Maas acknowledged that Colts could have caused the collision. Maas
also agreed that his statement to Officer Lemond that he had witnessed Colts’s vehicle do a “barrel
roll” was not accurate.
Brant repeatedly testified that he had remained in the “second lane” at all relevant times
and denied that he had changed lanes in the time before the collision. Brant noted that he routinely
traveled westbound on Eight Mile Road and that it was his practice to remain in the second lane
from the right until it was necessary for him to move over to the “curb lane” to get onto the
highway. Brant, who is an experienced truck driver, also testified that it was unlikely that his
trailers had “drifted” given that there was “no where for the wind to get a hold of” them. Brant
also testified that the cargo on the trailers was strapped down. Brant’s testimony at trial is
consistent with the statements that he made to Officer Lemond following the collision.
Additionally, Brant indicated that the damage to his trailer supported that Colts had hit his
trailer from behind, as opposed to Brant “sideswiping” Colts’s minivan. Specifically, Brant noted
that the damaged portion of the trailer had been “pushed forward.” The jury was able to view
photographs of the damage to Brant’s trailer and to Colts’s minivan, and the jury clearly found the
testimony of Brant to be credible given that it returned a verdict in defendants’ favor. We will not
disturb credibility determinations on appeal. Allard v State Farm Ins Co, 271 Mich App 394, 408;
722 NW2d 268 (2006) (“It is the sole province of the jury to determine the weight of the evidence
and credibility of the witnesses.”). Consequently, based on review of the entire record, it is not
more probable than not that the error, if any, was outcome determinative. See Nahshal, 324 Mich
App at 717.
On cross-appeal, defendants argue that, in the event that this Court determines that the
statements of the unknown motorist were inadmissible, this Court should nonetheless affirm
because the trial court erred when it denied defendants’ motion for a directed verdict. Because
this issue is moot, we need not consider it. See B P 7 v Bureau of State Lottery, 231 Mich App
2Based on this holding, we need not explicitly consider whether the trial court abused its discretion
by holding that the unknown motorist’s statements met the criteria for admission as excited
utterances.
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356, 359; 586 NW2d 117 (1998) (“As a general rule, an appellate court will not decide moot
issues.”).
Affirmed.
/s/ Jonathan Tukel
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
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