Jeffrey Lovely v. State Farm Mutual Automobile Insurance Company ( 2020 )

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
JODI LOVELY, Guardian of JEFFREY LOVELY, UNPUBLISHED
October 29, 2020
Plaintiff-Appellant,
v No. 349841
Bay Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 17-003478-NF
INSURANCE COMPANY,
Defendant-Appellee.
Before: GADOLA, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.
PER CURIAM.
In this no-fault case, plaintiff, Jodi Lovely, as guardian of her son, Jeffrey Lovely, appeals
by right the trial court’s order denying her motions for judgment notwithstanding the verdict
(JNOV) and for a new trial. We affirm.
I. PERTINENT FACTS
Jeffrey Lovely was seriously injured in a motor vehicle accident in September 2013. After
the accident, Jeffrey was diagnosed with a closed-head injury and post-concussion syndrome.
Jeffrey was treated at Riversbend Rehabilitation Facility (Riversbend) after the accident. A few
years after the accident, Jeffrey was diagnosed with schizophrenia and schizoaffective disorder.
Jeffrey’s mother, Jodi Lovely, was appointed as his guardian. In 2017, Jodi filed the instant action
against State Farm Mutual Automobile Insurance Company, which had been Jeffrey’s no-fault
insurance provider as to the accident. Jodi alleged that defendant breached the insurance contract
by failing to provide reasonable and necessary medical expenses to which Jeffrey was entitled
under the Michigan no-fault act, MCL 500.3101 et seq. There was no dispute that Jeffrey had
been injured and that defendant had paid for the cost of treating his physical injuries through
August 2016. Defendant maintained that “car accidents don’t cause schizophrenia,” that Jeffrey
had been profoundly mentally unwell before the accident, and that Jeffrey’s psychiatric problems
were not caused or exacerbated by the accident. A significant amount of money remains due and
outstanding to treatment facilities for Jeffrey’s care, mostly to Riversbend.
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During trial, four doctors’ deposition testimonies were played for the jury. Dr. William
MacInnes, Ph.D., a neuropsychologist, testified that he first saw Jeffrey shortly after the accident
at the request of the hospital. MacInnes continued to see Jeffrey on an outpatient basis. MacInnes
testified that Jeffrey’s family reported he had some problems with inappropriate behavior before
the accident, but that he seemed to have gotten worse. MacInnes felt that Jeffrey’s cognitive
problems were insignificant compared to his serious inability to regulate his mood and behavior.
MacInnes saw Jeffrey again two years later, after Jeffrey had spent some time in a brain injury
rehabilitation program, and found little improvement. MacInnes believed Jeffrey “was suffering
from cognitive emotional deficits secondary to closed-head injury” and might be developing
“some type of emerging schizophrenic form spectrum kind of disorder as well.” MacInnes
believed the accident made Jeffrey’s pre-existing psychiatric issues worse. MacInnes conceded,
however, that he was neither an M.D., a D.O., nor a psychiatrist; and he had not reviewed the
entirety of Jeffrey’s medical records. MacInnes obtained Jeffrey’s history from talking to Jeffrey
and Jeffrey’s family, and his diagnosis was based on what they told him. MacInnes was unaware
of some disturbing behavior in which Jeffrey had engaged before the accident.
Dr. Daniel Duffy, D.O., a board-certified physiatrist,1 testified that Jeffrey had a traumatic
brain injury as a result of the accident and that his behavioral changes were concussion related.
However, Duffy agreed that he was not a psychiatrist and had never reviewed Jeffrey’s psychiatry
records or military records, and he was likewise unaware of some of Jeffrey’s pre-accident
behavior. Duffy’s diagnosis was based on timing of the accident, noting that “the timing of
[Jeffrey’s changes] seemed in fitting with a typical pattern for someone” who had suffered a
concussion. Duffy was only partially aware of Jeffrey’s pre-injury behavior beyond “some
difficulties holding down jobs” and having been released from the military. Duffy explained that
he had heard “conflicting information” about why Jeffrey had been released from the military, and
he largely relied on Jeffrey’s mother for Jeffrey’s history. Duffy did not recall Jeffrey’s mother
telling him about much of Jeffrey’s pre-injury conduct issues, and she “described it more as
[Jeffrey] tended to be high-strung, a lot of energy, and that some people didn’t appreciate that.”
Duffy agreed that, on the basis of further information about some of Jeffrey’s pre-injury behaviors,
Jeffrey’s problems did seem at least partially psychiatric. Duffy maintained that Jeffrey might
have a traumatic brain injury in addition to psychiatric problems.
Dr. Norman Miller, M.D., a physician who specialized in psychiatry, neurology, and
forensic psychiatry, opined that Jeffrey’s psychiatric disorders predated the accident and that the
accident did not exacerbate them. Miller agreed that Jeffrey had been diagnosed with a concussion,
but pointed out that concussions were usually not permanent. Among other medical documents
Miller reviewed, he reviewed a 2015 assessment by Duffy and a 2015 neuropsychological
examination by MacInnes. Miller also reviewed Jeffrey’s hospital discharge summary from 2013;
the traffic crash report; “some school records;” and the EMS, emergency room, and CT scan
records from the date of the accident. Miller noted that Jeffrey displayed bizarre behavior and
misconduct before the accident, and Jeffrey might have been doing push-ups on the sidewalk or in
1
Physiatry refers to physical medicine and rehabilitation.
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the street just before the accident. Miller opined that Jeffrey was severely mentally ill before the
accident, and that the accident had no effect on Jeffrey’s psychiatric problems.
Dr. Bradley Axelrod, Ph.D., a clinical psychologist with a specialty in clinical
neuropsychology, also believed that Jeffrey’s psychological issues were unrelated to the accident.
Axelrod reviewed Jeffrey’s medical records and performed a cognitive assessment of Jeffrey.
Axelrod testified that Jeffrey could not recall the accident, and Jeffrey’s “last memory was of doing
an exercise workout moments before the accident had occurred . . . He was told by others that he
had run across the street and was struck by a vehicle.” According to Jeffrey’s records, a
neuropsychologist had evaluated Jeffrey shortly after the accident and found no cognitive deficits,
but had noted that Jeffrey had problems with inappropriate behavior pre-dating the accident.
Axelrod’s testing indicated that Jeffrey cognitively functioned in the low to average range, which
Axelrod believed was “really more related to his psychiatric status than deficits that one sees
following a brain injury.” Axelrod noted that schizophrenia or schizoaffective disorder typically
manifested in one’s twenties.2 Axelrod noted that Jeffrey scored essentially the same as he had
two months after the accident, so if any treatment Jeffrey had received in the meantime “was
supposed to improve something, nothing was improved, nothing worsened.” Axelrod concluded
that given Jeffrey’s age, pre-existing problems, stable cognitive functioning, and two-year gap
between the accident and the onset of his severely worsened psychological problems, the accident
did not cause Jeffrey’s schizophrenia or schizoaffective disorder. Axelrod observed that those
were psychiatric conditions, not a brain injury, and that Jeffrey likely recovered from any actual
brain injury he sustained within eight weeks of the accident. However, Axelrod agreed that Jeffrey
needed ongoing mental health treatment that was likely to be longstanding.
The jury returned a verdict finding that Jeffrey had sustained an accidental bodily injury
arising out of the ownership or use of a motor vehicle and that there were allowable expenses
incurred by or on behalf of Jeffrey arising out of the accidental bodily injury. However, the jury
awarded zero dollars for the amount of allowable expenses owed to Jeffrey, which did not account
for expenses already paid by defendant. Subsequently, plaintiff filed a motion for JNOV and
argued that the verdict should be set aside because one juror was not truthful about her work history
with Riversbend. Plaintiff argued that the verdict was illogical and inconsistent. Plaintiff also
moved that a new trial should be granted because of juror misconduct, inadequate damages
seemingly influenced by prejudice, improper closing argument by defendant, and a grossly
inadequate verdict; and also because the verdict was against the great weight of the evidence. The
trial court denied both of plaintiff’s motions. This appeal ensued.
II. STANDARDS OF REVIEW AND GENERAL LEGAL PRINCIPLES
We review de novo a trial court’s decision whether to grant judgment notwithstanding the
verdict. Hecht v Nat’l Heritage Academies, Inc, 499 Mich. 586, 604; 886 NW2d 135 (2016). This
Court must “review the evidence and all legitimate inferences in the light most favorable to the
nonmoving party. Only if the evidence so viewed fails to establish a claim as a matter of law,
should the motion be granted.” Id. (quotation marks and citation omitted). “[I]f reasonable jurors
2
Jeffrey was twenty years old at the time of the accident.
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could have honestly reached different conclusions, the jury verdict must stand.” Id. at 605-606
(quotation marks, alteration, and citation omitted). “A jury’s verdict is to be upheld, even if it is
arguably inconsistent, if there is an interpretation of the evidence that provides a logical
explanation for the findings of the jury.” Bean v Directions Unlimited, Inc, 462 Mich. 24, 31; 609
NW2d 567 (2000) (quotation marks, alteration, and citation omitted). The courts generally are
powerless to overturn a jury’s verdict unless “there is a total want of evidence upon some essential
fact” that the jury nevertheless found. Conley v McDonald, 40 Mich. 150, 159 (1879).
This Court reviews a trial court’s denial of a motion for a new trial for an abuse of
discretion. Allard v State Farm Ins Co, 271 Mich. App. 394, 406; 722 NW2d 268 (2006). As with
a motion for JNOV, the jury’s verdict must be given great deference and must be upheld unless it
is essentially impossible to reconcile. Id. at 406-407. To the extent the trial court makes findings
of fact regarding juror misconduct or disqualification, the trial court’s factual findings are reviewed
for clear error. Bynum v ESAB Group, Inc, 467 Mich. 280, 283-285; 651 NW2d 383 (2002). Any
review of the trial court’s factual findings must be mindful of the trial court’s superior position to
evaluate the credibilities of those persons who appear before it. McGonegal v McGonegal, 46
Mich. 66, 67; 8 N.W. 724 (1881); In re Loyd, 424 Mich. 514, 535; 384 NW2d 9 (1986). “A trial
court does not abuse its discretion when its decision falls within the range of principled outcomes.”
Rock v Crocker, 499 Mich. 247, 260; 884 NW2d 227 (2016).
Under the Michigan no-fault act, a personal protection insurance provider 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.” MCL 500.3105(1).
Accordingly, MCL 500.3105(1) imposes two threshold causation requirements for personal
protection insurance benefits:
First, an insurer is liable only if benefits are “for accidental bodily
injury . . . ” “For” implies a causal connection. “Accidental 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 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 “arise 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 v Allstate Ins Co, 492
Mich. 241, 257; 821 NW2d 472 (2012) (alterations and quotation omitted; ellipses
in Douglas).]
Personal protection insurance benefits are payable, in part, for “[a]llowable expenses consisting of
reasonable charges incurred for reasonably necessary products, services and accommodations for
an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(1)(a). A claimant must
prove four requirements before recovering benefits for allowable expenses: “(1) the expense must
be for an injured person’s care, recovery, or rehabilitation, (2) the expense must be reasonably
necessary, (3) the expense must be incurred, and (4) the charge must be reasonable.” Douglas,
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492 Mich. at 259. In response to a JNOV motion, a trial court “may allow the judgment to stand
or may reopen the judgment and either order a new trial or direct the entry of judgment as requested
in the motion.” MCR 2.610(B)(1).
III. INCONSISTENT JURY VERDICT
Plaintiff first argues that the judgment should have been set aside because it is illogical and
inconsistent, and plaintiff should have been awarded $637,063.75 on the basis of the testimony of
the service providers. There is no dispute that Jeffrey was injured within the applicability of the
no-fault act, and there is no serious dispute on appeal as to how much money is owed for Jeffrey’s
psychiatric care and treatment. The issue was really whether Jeffrey’s psychiatric conditions were
caused or exacerbated by the accident, such that defendant would be required to pay for the
expense of treating those conditions. The jury found that Jeffrey sustained an accidental bodily
injury arising out of the ownership or use of a motor vehicle as a motor vehicle, and allowable
expenses were incurred by or on behalf of Jeffrey arising out of that injury. However, the jury
concluded that plaintiff was not owed any amount of money for the allowable expenses that had
not already been paid by defendant.
As outlined above, there was conflicting expert testimony regarding the genesis of Jeffrey’s
psychiatric conditions, and the doctors clearly all had different levels of awareness of Jeffrey’s
pre-accident condition. No one contended that Jeffrey was completely psychologically healthy
before the accident, nor did anyone contend that Jeffrey was not suffering from worsened
psychological problems after the accident. However, ultimately, two doctors opined that the
accident seriously exacerbated Jeffrey’s problems, whereas two other doctors opined that Jeffrey’s
post-accident problems were unrelated to the accident. Thus, it was clearly the jury’s duty, and
only the jury’s duty, to resolve that conflict. Nichol v Billot, 406 Mich. 284, 301-302; 279 NW2d
761 (1979). “The weight given to the testimony of experts is for the jury to decide, and it is the
province of the jury to decide which expert to believe.” Guerrero v Smith, 280 Mich. App. 647,
669; 761 NW2d 723 (2008) (quotation marks and citation omitted).
On the basis of that conflict, the jury could have found that (1) as the parties agreed, Jeffrey
was indeed injured; but (2) Jeffrey’s diagnoses of schizophrenia and schizoaffective disorder were
unrelated to the accident, and (3) the unpaid expenses related only to the treatment of Jeffrey’s
schizophrenia and schizoaffective disorder. Such findings would not be inherently inconsistent
with each other. Furthermore, such findings would not be “against the great weight of the evidence
or contrary to law.” MCR 2.611(A)(1)(e). Based on the record, reasonable jurors could have
honestly reached different conclusions; therefore, the jury verdict must stand. Hecht, 499 Mich. at
605-606; see also Dawe v Bar-Levav & Assoc (On Remand), 289 Mich. App. 380, 401; 808 NW2d
240 (2010) (conflicts and credibility assessments generally must be resolved by the trier of fact).
The trial court cannot have erred by allowing the jury’s judgment to stand. It therefore did
not abuse its discretion when it denied plaintiff’s motion for a new trial under MCR 2.610 because
its decision fell within the range of principled outcomes. Rock, 499 Mich. at 260. Likewise,
because the verdict was not against the great weight of the evidence or contrary to law, the trial
court properly declined to grant a new trial under MCR 2.611(A)(1)(e).
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IV. IRREGULARITY AND MISCONDUCT
Plaintiff also argues that she was entitled to a new trial under MCR 2.611(A)(1)(a) and (b)
because her substantial rights were materially affected by an irregularity in the proceeding and
juror misconduct. Specifically, plaintiff contends that a juror lied during voir dire, and defense
counsel made inappropriate comments during closing argument. We disagree.
“Jurors are presumed to be qualified. The burden of proving the existence of a
disqualification is on the party alleging it.” Bynum, 467 Mich. at 283. “Prospective jurors are
subject to challenge for cause under MCR 2.511(D).” Id. It is counsel’s duty to “ferret out
potential bases for excusing jurors.” Id. at 284. “[A]bsent proof of actual prejudicial effect on the
verdict or proof that a challenge for cause would have been successful, it [would be] an abuse of
discretion to grant a new trial.” Id. at 286.
During voir dire, a juror disclosed that she had worked at Riversbend “in two thousand—
I’m trying to believe it was—eleven.” The juror stated that she knew of Michael Wilson, the
director of Riversbend, but had never interacted with him personally; nor did she know Jeffrey3
from working at Riversbend, because she had worked as an aide in “a female-only home.” The
juror stated that she would have no problems sitting as a juror, and indeed was eager about serving.
Plaintiff argues that the juror had actually worked at Riversbend for three years, including in the
home where Jeffrey resided; she had filed two workers’ compensation cases against Riversbend,
and she terminated her employment after a co-worker spilled hot water on her. Plaintiff contends
that she therefore “had an axe to grind” and clearly abused her position as jury foreperson to
prejudice the jury. As noted, most of plaintiff’s outstanding balance for medical bills was owed
to Riversbend.
None of the jurors were asked during voir dire about whether they had been involved in
claims other than no-fault actions. A juror can hardly be faulted for not answering a question that
was never asked. The juror was clearly uncertain about precisely when she had worked at
Riversbend, and she was not asked how long she worked there. Plaintiff provides an affidavit in
support of her contentions indicating that the juror did a majority of her work at mixed-sex
facilities, which is at odds with her statement at voir dire. However, the affidavit also states that
she worked at the facility where Jeffrey resided once, which does not establish that she actually
did know Jeffrey, or that she would have any reason to remember Jeffrey if she interacted with
him. Apparently, one of her worker’s compensation claims was paid, and the other was denied
well before she ended her employment, casting serious doubt on whether those claims were of
great significance to the juror. Even if the juror’s statements about her employment at Riversbend
were not completely accurate, plaintiff engages in pure speculation that the juror knew Jeffrey or
had an “axe to grind.”
3
Confusingly, the parties also dispute whether plaintiff admitted to knowing Jeffrey. The juror
stated that she knew a “Jacob” from high school, albeit not very well. The only “Jacob” who was
named as a possible witness to the jurors was an employee from Riversbend.
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Plaintiff has not established that she was unbiased or committed misconduct; nor has
plaintiff demonstrated any prejudice arising from the juror’s presence on the jury or that a
challenge for cause would have been successful. The trial court did not clearly err when it found
that the juror did not commit misconduct.
Plaintiff also argues that defense counsel made improper and unfairly prejudicial
statements during closing argument. Defense counsel essentially just told the jury the same thing
plaintiff had stated during plaintiff’s opening arguments: that defendant had paid for Jeffrey’s
benefits through August of 2016, and that defendant now contended that Jeffrey’s treatment after
that date was due to Jeffrey’s pre-existing conditions rather than the accident. We do not
understand how defense counsel can be faulted for substantively agreeing with plaintiff’s counsel.
If plaintiff believes the jury should not have learned that defendant paid for Jeffrey’s benefits until
August 2016, plaintiff can only blame herself, which is not grounds for relief. Smith v Musgrove,
372 Mich. 329, 337; 125 NW2d 869 (1964). Therefore, the court did not abuse its discretion when
it denied plaintiff’s motion for a new trial under MCR 2.611(A)(1)(a) and (b).
V. INADEQUATE VERDICT
Finally, plaintiff argues that the court abused its discretion by failing to grant a new trial
under MCR 2.611(A)(1)(c) and (d) because the damages awarded were inadequate and fueled by
juror misconduct, and because the verdict was grossly inadequate. We disagree.
In general, the adequacy of the amount of a verdict is a matter for the jury, and we will not
substitute our judgment for the jury’s verdict “unless a verdict has been secured by improper
methods, prejudice, or sympathy.” Kelly v Builders Square, Inc, 465 Mich. 29, 35; 632 NW2d 912
(2001) (quotation marks and citations omitted). “[T]he trial court’s inquiry is limited to objective
considerations related to the actual conduct of the trial court or the evidence presented.” Wiley v
Henry Ford Cottage Hosp, 257 Mich. App. 488, 499; 668 NW2d 402 (2003).
As discussed, plaintiff has not established that the complained-of juror was prejudiced or
that she prejudiced the jury. Additionally, “[t]he weight given to the testimony of experts is for
the jury to decide, and it is the province of the jury to decide which expert to believe.” Guerrero
v Smith, 280 Mich. App. 647, 669; 761 NW2d 723 (2008) (quotation marks and citation omitted).
As noted, the doctors disagreed whether Jeffrey’s diagnoses of schizophrenia and schizoaffective
disorder were related to the accident, or whether they were mere continuations of pre-existing
problems and unaffected by the accident. It was for the jury to decide which witnesses to believe
in determining whether plaintiff was entitled to an award. Plaintiff has failed to establish that the
verdict was “secured by improper methods, prejudice, or sympathy.” Kelly, 465 Mich. at 35.
Therefore, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new
trial.
Affirmed.
/s/ Michael F. Gadola
/s/ Amy Ronayne Krause
/s/ Colleen A. O’Brien
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