Abdul Nahshal v. Fremont Insurance Company

STATE OF MICHIGAN
COURT OF APPEALS
ABDUL NAHSHAL, FOR PUBLICATION
June 21, 2018
Plaintiff-Appellee, 9:05 a.m.
v Nos. 336234; 336919
Wayne Circuit Court
FREMONT INSURANCE COMPANY, LC No. 14-013492-NF
Defendant-Appellant.
Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ.
SWARTZLE, P.J.
There was a time under the common law when a witness had to swear belief in a
Supreme Being before testifying in court. This time passed, and the common-law rule was set
aside. Today, a witness cannot be questioned about beliefs or opinions on religion, and especial
care must be taken that these beliefs or opinions not be used to impair or enhance a witness’s
credibility.
During the jury trial in this case, plaintiff’s wife was asked about her and her husband’s
religious opinions for the purpose of bolstering her credibility, and this was error. Whether this
error requires automatic reversal or, instead, this error requires a showing of prejudice before
relief can be had is the question we address here. Concluding that, in a civil action, a party must
show prejudice from the improper admission of religious belief or opinion testimony before
reversal can be had, yet finding defendant has not shown such prejudice here, and finding no
other reversible error, we affirm.
I. BACKGROUND
In Docket No. 336234, defendant Fremont Insurance Company appeals as of right a
judgment awarding plaintiff Abdul Nahshal $130,256.24 for no-fault personal injury protection
(PIP) benefits. In Docket No. 336919, defendant appeals as of right the trial court’s subsequent
order awarding plaintiff taxable costs, attorney fees, penalty interest, and judgment interest.
Plaintiff was involved in a roll-over automobile accident from which he sustained injuries
to his chest, shoulder, back, and neck. Following the accident, plaintiff also suffered from post-
traumatic stress disorder. Before the accident, plaintiff worked as a server at both the Detroit
Athletic Club and Greektown Casino, where he received compensation in the form of wages and
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tips. Plaintiff returned to work at Greektown Casino approximately five weeks after the
accident, but he had to change roles from server to cashier because of his injuries. Plaintiff never
returned to work at the Detroit Athletic Club.
Plaintiff sought work-loss and related benefits from defendant, his no-fault insurer,
including nearly $5,000 per month for lost income and additional amounts for attendant-care and
replacement-services benefits. Plaintiff’s wife testified at trial that, for several weeks after the
accident, it was difficult for plaintiff to do anything because of his injuries. According to
plaintiff’s wife, she had to help plaintiff to the bathroom for approximately two weeks after the
accident. She submitted paperwork to defendant, documenting the assistance she provided to
plaintiff. As relevant to this appeal, Attendant Care Service Compensation Claim Forms for
October and November 2013 record that plaintiff’s wife provided toileting assistance for 17
days. Plaintiff’s primary-care physician corroborated plaintiff’s wife’s testimony that plaintiff
was disabled from household duties and needed personal-attendant care.
Defendant’s claims specialist testified at trial that she determined plaintiff’s work-loss
benefit to be $2,500 per month based on the calculation of a certified public accountant (CPA).
The difference between defendant’s payment and plaintiff’s requested amount appears to be
based on a disagreement on how plaintiff’s tip income should have been calculated. The
purported CPA’s calculation is not in the record. As of trial, defendant had paid plaintiff a total
of $40,000 in work-loss and replacement-services benefits.
Several attempts were made to settle the matter before trial, and the case-evaluation panel
recommended a settlement in plaintiff’s favor. Defendant rejected the recommendation, and the
dispute proceeded to trial. At trial, defendant argued that plaintiff made false statements to
defendant to bolster his claim and that dismissal was warranted based upon a fraud-exclusion
provision in defendant’s policy. The provision at issue is entitled “Concealment or Fraud” and
provides:
We will not cover any person seeking coverage under this policy who has
intentionally concealed or misrepresented any material fact, made fraudulent
statements, or engaged in fraudulent conduct with respect to the procurement of
this policy or to any accident or loss for which coverage is sought.
Defense counsel brought up the subject of fraud with plaintiff’s wife, questioning
whether plaintiff’s wife’s recordkeeping was honest. On redirect, plaintiff’s wife testified as
follows:
Q. Okay. Now Ms. Nahshal, are you a religious person?
A. Yes.
[Defense Counsel]: Your Honor, objection to religion and it’s beyond the
scope of my cross.
[Plaintiff’s Counsel]: And he’s attacking her honesty, Your Honor.
[The Trial Court]: The Court will take the answer.
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Q. And have you been a religious person all your life?
A. Yes.
Q. Okay. And your husband, he, you married him the year he came to the
United States?
A. Correct.
Q. Almost 31 years ago?
A. Um-hmm.
Q. And was he a religious person?
A. He was, he was a little, but when I married him he got to be better,
more.
Q. Okay. And how did that change after this collision?
A. He used to go, when he used to come home from work he used to stop
at the local mosque and pray whatever pray he’s already, ‘cause we pray five
times a day.
So if one prayer already finished he’ll go and pray and come home,
so.
Q. And—
A. And I see him, I see him, he used to pray, but now I don’t see him
pray. I don’t, we pray five times a day like I said, I don’t see him pray.
Q. Is honesty important to you?
A. It’s very, very. Everybody knows me knows I’m honest.
Q. And have you been honest today and—
A. Yes, I have.
Q. —in the past?
Almost three years of recordkeeping for—
A. Yes, I have.
Q. —for the insurance company?
A. Yes.
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Defendant also brought up the subject of fraud during its cross-examination of plaintiff,
specifically with respect to attendant care. Plaintiff testified on cross-examination as follows:
Q. Okay. All right. [Your wife] also said that she, you needed assistance
going to the bathroom; correct?
A. For the first two or three weeks, yes.
Q. Okay. She submitted it for one year, did you need it for one year or
you only need it for a couple of weeks?
A. For the shower, Yes.
Q. Okay, I asked –
A. For the bathroom, no.
Q. Okay. For a year you could not take a shower, is that what you’re
saying?
A. I can, but I cannot clean my back.
Q. What about going to the bathroom, could you get up and go to the
bathroom?
A. Absolutely.
Q. Absolutely?
A. Yes, sir.
Q. Okay. Well then let me, and you could always do that; correct?
A. I can go to the bathroom.
Q. Excuse me?
A. I can go to the bathroom.
Q. Okay. All right. I want to show you documents that we’ve marked as
Exhibit Q. And do you know what your wife’s signature looks like?
A. Of course.
Q. Okay. Is that your wife’s signature?
A. Yes.
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Q. Okay. So if your wife submitted benefits and she’s asking for $80,000
from Fremont Insurance because she says you can’t go to the bathroom without
her, was that untrue?
A. Yeah, that should be untrue.
Q. Okay, so that’s untrue.
So what your wife submitted to Fremont Insurance Company was
untrue; is that correct?
A. I’m saying about that, about bathroom. . . .
* * *
Q. Okay. The specific question is if your wife submitted claims that she
had to take you to the bathroom everyday ‘cause you were too physically injured,
that’s not true is it?
A. To the bathroom, using the bathroom, no.
Q. Okay. So what your wife submitted to Fremont Insurance Company
was not true, correct?
A. In everything on that matter.
Q. Okay. But just about the bathroom is untrue?
A. Yes, about the bathroom.
Defense counsel was not able, however, to point to anything in the trial record showing that
plaintiff’s wife actually sought reimbursement for $80,000 related to helping her husband with
his toiletry needs for a year. Nor could defense counsel identify a record to this effect during
oral argument on appeal.
At the close of plaintiff’s case-in-chief, defendant moved for a directed verdict, arguing
that plaintiff admitted that his wife engaged in fraud, thereby voiding the policy. The trial court
denied the motion, but allowed an instruction regarding fraud to be presented to the jury. In
closing argument, plaintiff’s counsel asked the jury to award $129,634.86 in work-loss benefits,
$23,550 in attendant-care benefits, and $19,380 in replacement-services benefits. The jury found
defendant liable and awarded plaintiff $129,044.24 in work-loss benefits, $312 in attendant-care
benefits, and $900 in replacement-services benefits.
Defendant moved for judgment notwithstanding the verdict, again arguing that the record
showed that the policy was voided by fraud and citing plaintiff’s testimony regarding toileting.
The trial court denied the motion, noting that the question of fraud was presented to, and rejected
by, the jury. The trial court entered a judgment that was stayed pending appeal.
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Plaintiff then moved for attorney fees, costs, and interest, arguing that defendant’s
unreasonable failure to pay work-loss benefits entitled plaintiff to payment of those fees under
the No-Fault Act. At the hearing on plaintiff’s motion, the trial court noted that defendant had
essentially agreed to the award of attorney fees from the time of case evaluation and that,
therefore, “the issue is is [sic] attorney fees from . . . the beginning.” After the parties had made
their arguments, the trial court noted that it had “lived this case for the last couple of years.” The
trial court stated that a verdict was rendered in plaintiff’s favor “but there’s a little bit more to the
story in that regard.” The trial court then reasoned as follows:
[T]his was an a accident where the car was upside down. The gentleman was
extricated, he was taken to the emergency room.
There was a long litany of things that happened to him in terms of medical
and his employment.
Its significant to know, I think it’s, the Court think it’s significant, this
wasn’t some brand new adjuster just out of adjuster school, if you will, this person
had 21 years of experience as I’m reminded this morning. Knows the ropes if you
will.
But this is a Plaintiff that was sent to three IMEs [independent medical
evaluations].
The first two IMEs essentially agreed with Plaintiff that Plaintiff needed to
see certain medical providers and had significant work restrictions.
If that weren’t enough to get this matter moving from the adjuster’s
perspective then there was a third IME that wasn’t given, it came out at trial
wasn’t given complete medical records.
Case eval was accepted by the Plaintiff.
This Court attempted to settle this matter I think on a number of occasions.
This case was facilitated and at the end of the day it went to trial, Plaintiff
was successful.
Plaintiff request[ed] that the Defendant[‘]s failure to pay the wage loss, no
fault benefits was unreasonable. At this point with the benefit of hindsight, if you
will, and sitting through the trial and all of the evidence the Court can make that
conclusion.
Certainly taxable costs are awardable, which I believe are in excess of
$9,000.
The attorney fees Plaintiff accepted case eval, Plaintiffs bettered their
position greater than 10 percent. I don’t think that Defendant has argued that and
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in essence has conceded the attorney fees from the date of the case eval, accept
reject.
The issue is is [sic] are we going back to the beginning in terms of the
unreasonableness, and from what the Court has now seen the Court would concur.
And then there’s the issue of no fault penalty interest which is in light of
the above the Court is awarding pursuant to MCL 500.3142(3), and Judgment
interest as well pursuant to 600.6013(6).
* * *
The big picture is is [sic] that I’m granting it certainly from a case
evaluation standpoint, as well as from the date of beginning.
These appeals followed.
II. ANALYSIS
A. USING RELIGION TO ENHANCE WITNESS CREDIBILITY
We begin our analysis with defendant’s claim that it is entitled to a new trial based on the
trial court’s erroneous admission of testimony regarding the religious beliefs or opinions of
plaintiff and his wife, in violation of MCL 600.1436 and MRE 610. We conclude that the trial
court erred in admitting the plaintiff’s wife’s testimony on the subject, but the error did not affect
defendant’s substantial rights under MRE 103 and, therefore, the error is not grounds for a new
trial.
1. TESTIMONY ABOUT RELIGIOUS BELIEFS OR OPINIONS
In old time, the common law required that a witness swear to belief in a Supreme Being
before testifying, the rationale being that only a believer who risked divine punishment would
feel compelled to testify truthfully. See 28 Wright & Gold, Federal Practice and Procedure:
Evidence, § 6152, p 308; People v Bouchee, 400 Mich. 253, 264 n 6; 253 NW2d 626 (1977).
Unfortunately, this legal rule suffered from being both over-inclusive (if the witness was a liar,
then wouldn’t he lie about being a believer too?) and under-inclusive (were all atheists really all
liars all the time?). The rule also suffered from a version of the liar’s paradox—consider the
statement, “My testimony is false” (if said by a nonbeliever, then that witness would only testify
falsely, but then the statement is actually true; if said by a believer, then that witness would only
testify truthfully, but then the statement is actually false—in other words, if false, then true; if
true, then false). If this was not bad enough, the rule could result in testimony highly prejudicial
to a party when a juror was biased for or against a particular religious belief or opinion. A legal
rule that is over-inclusive, under-inclusive, paradoxical, and prejudicial has little to offer and
much to avoid.
Michigan long ago cast away this common-law rule. Our Constitution of 1963 states,
“No person shall be rendered incompetent to be a witness on account of his opinions on matters
of religious belief.” Const 1963, art 1, § 18. Moreover, since 1842, it has been the statutory law
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of the land that a witness cannot be questioned about a person’s opinions on religion. See 1842
PA 18; see also MCL 600.1436 (current version) (“No witness may be questioned in relation to
his opinions on religion, either before or after he is sworn.”). Our rules of evidence likewise
reflect this principle: “Evidence of the beliefs or opinions of a witness on matters of religion is
not admissible for the purpose of showing that by reason of their nature the witness’ credibility is
impaired or enhanced.” MRE 610. While evidence of religious matters may be relevant in
certain narrow contexts, see, e.g., People v Jones, 82 Mich. App. 510, 515; 267 NW2d 433 (1978)
(noting that testimony about church attendance was permissible when church membership was a
fact at issue), if testimony about religious beliefs or opinions is offered to impair or enhance
credibility, then that testimony must be excluded.
2. THE ISSUE IS PRESERVED
Initially, plaintiff argues that this issue is unpreserved. To preserve an evidentiary error
for appeal, a party must object at trial on the same ground that it presents on appeal. Klapp v
United Ins Group Agency, 259 Mich. App. 467, 475; 674 NW2d 736 (2003). Counsel must state
“the specific ground of objection, if the specific ground was not apparent from the record.”
MRE 103(a)(1).
When plaintiff’s counsel asked plaintiff’s wife whether she was “a religious person,”
defense counsel immediately objected. While defense counsel did not specify a statute or rule of
evidence, counsel noted that the objection was based on “religion,” to which plaintiff’s counsel
responded that plaintiff’s wife’s “honesty” had been “attack[ed].” Based on the specific
objection and response as well as the context in which these were given, it is apparent from the
record that defense counsel’s objection was to the admission of testimony about the witness’s
religious beliefs or opinion for the purpose of her credibility. Accordingly, this issue is
preserved.
When an evidentiary issue is preserved, 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.” Albro v Drayer, 303 Mich. App. 758, 760; 846 NW2d 70
(2014). “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.” Hecht v Nat’l Heritage
Academies, Inc, 499 Mich. 586, 604; 886 NW2d 135 (2016).
3. TESTIMONY ON RELIGIOUS BELIEFS OR OPINIONS
Turning to the merits, we consider first whether the testimony actually concerned a
person’s religious beliefs or opinions. Plaintiff’s wife was asked about whether she and plaintiff
were “religious person[s],” how long and to what extent they were religious persons, and, during
this colloquy, whether honesty was “important” to her, to which she responded, “It’s very, very.
Everybody knows me knows I’m honest.” Whether someone is a “religious person” can,
somewhat vexingly, be understood in different ways. On the one hand, being a religious person
might mean, as one example, that the person regularly attends a church or mosque. Being a
religious person might also mean, as another example, that the person self-identifies with a
specific religious sect, such as Catholicism or Reform Judaism. None of these meanings would
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necessarily implicate the person’s actual beliefs or opinions about religion. On the other hand,
being a religious person might mean, and might be understood by others to mean, that the person
ascribes to certain religious beliefs or opinions.
To determine how the phrase was intended to be understood by the jury, we again look to
the context in which it was presented. Counsel asked plaintiff’s wife about whether she was a
religious person to bolster her credibility as a witness. Counsel admitted as much during the
colloquy when, in response to the objection, counsel responded, “And [defense counsel] is
attacking her honesty, Your Honor.” There is little in reason or experience to the suggestion that
a “religious person” is honest simply because she attends religious services or identifies with a
particular sect. Stated differently, it does not follow that because a person regularly attends a
religious service or belongs to a particular sect, therefore, based on the bare fact of that
attendance or membership, the person must be honest. There is, however, much more to the
suggestion that a “religious person” is honest precisely because that person believes in a
Supreme Being who will deliver divine punishment for dishonesty—and it is precisely this type
of suggestion that the law no longer permits during judicial proceedings.
It is evident from the colloquy that counsel asked plaintiff’s wife whether she was a
“religious person” to bolster her credibility before the jury. The inference intended to be drawn
by jurors was that plaintiff’s wife was a pious believer and that, because of this, honesty was
“very, very” important to her. Similar statements have been held to be improper under the law.
See, e.g., People v Blair, 82 Mich. App. 719, 719-720; 267 NW2d 164 (1978) (finding that
questions on whether the criminal defendant was a “religious man” violated the statute); People v
Killingsworth, 80 Mich. App. 45, 54; 263 NW2d 278 (1977) (concluding that asking a defendant
about whether she attended church was sufficient to violate the law); but see People v Calloway,
180 Mich. App. 295, 297-298; 446 NW2d 870 (1989) (questioning a witness about whether she
was a “religious person” was not sufficient alone to violate the statute when the question had
nothing to do with the witness’s credibility and the question was relevant to the witness’s
activities at the time of the murder). Given the context, we conclude that the colloquy fell within
the statutory and evidentiary prohibitions and, as a result, the trial court abused its discretion by
admitting the improper testimony.
4. AUTOMATIC REVERSAL OR REVIEW FOR PREJUDICE?
Defendant argues that our analysis should now be at an end—when religious belief or
opinion testimony is admitted for purposes of impairing or enhancing a witness’s credibility,
reversal is automatic. In support, defendant relies on our Supreme Court’s decision in People v
Hall, 391 Mich. 175; 215 NW2d 166 (1974), and its progeny. Were we to apply the remedy in
Hall, reversal would be automatic. And yet, automatic reversal is generally “disfavored” and is
“inconsistent” with our courts’ ”modern harmless-error jurisprudence.” People v Graves, 458
Mich. 476, 481-482; 581 NW2d 229 (1998); see also MRE 103(a) (providing that an evidentiary
error is harmless unless it affects a party’s “substantial right”).
Hall was a criminal appeal from an uttering-and-publishing conviction. The defendant
had testified on his own behalf, and on cross-examination, the prosecutor inquired whether the
defendant “believe[d] in the Supreme Being?” Hall, 391 Mich. at 180. Defense counsel did not
object, and the defendant replied, “ ‘Yes, I do.’ ” Id. Immediately following, the prosecutor
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asked the defendant whether he “would not tell a falsehood to save [him]self,” making clear why
the prosecutor had asked the previous question. Id. The Supreme Court concluded that this line
of questioning violated MCL 600.1436. Id. at 181. As to the remedy, the Supreme Court
rejected a “case by case” review for prejudice, explaining that this “would emasculate our statute
and the legislative intent behind it.” Id. at 182. Instead, it opted for a rule of automatic reversal,
declaring: “A defendant is entitled to a trial free of such improper questions. Once the question
is asked, this is no longer possible. A new trial is mandated.” Id. at 182-183.
Subsequent decisions have extended this rule of automatic reversal to instances when a
witness is asked about a criminal defendant’s religious beliefs or opinions, Bouchee, 400 Mich. at
264, and when a criminal victim is asked about the victim’s own religious beliefs or opinions,
People v Wells, 82 Mich. App. 543, 545-546; 267 NW2d 448 (1978). Other decisions have
narrowed the rule, finding it inapplicable when the trial court takes “swift and commendable
action” to cut off the improper questioning, People v Burton, 401 Mich. 415, 418; 258 NW2d 58
(1977), or when a third-party witness is questioned about that witness’s own religious beliefs or
opinions, not a criminal defendant’s, People v McLaughlin, 258 Mich. App. 635, 663-664; 672
NW2d 860 (2003).
In support of defendant’s claim for automatic reversal in this case, neither the statute nor
the rule of evidence applies solely to criminal actions; rather, by their plain terms, both apply to
civil as well as criminal matters. Moreover, it is at least arguable that the religious beliefs or
opinions of a party, not just a witness, were explored during the trial here, given the wife’s brief
testimony about plaintiff’s own religious practices. Nor did the trial court take “swift” action to
cut off the line of questioning. Yet, unfortunately for defendant, this is the end of any support
for its position.
First, to restate, automatic reversal is generally “disfavored.” Graves, 458 Mich. at 481.
The rule is used sparingly, almost always in the context of a structural error of constitutional
dimension, see, e.g., Neder v United States, 527 U.S. 1, 8; 119 S. Ct. 1827; 144 L. Ed. 2d 35 (1999)
(identifying “a very limited class” of constitutional errors that are deemed “structural” and “thus
subject to automatic reversal” (internal citation and quotation marks omitted)), and similarly
almost always in the context of a criminal action, see, e.g., id. at 8-9 (explaining that “these
errors deprive defendants of basic protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair” (emphasis added, internal citation and
quotation marks omitted)); but see Pellegrino v Ampco Sys Parking, 486 Mich. 330, 351 n 14;
785 NW2d 45 (2010) (noting “that Batson errors are, in fact, ‘structural’ and require ‘automatic’
reversal” and applying the rule in a civil action). It is true that Hall’s automatic-reversal rule is
one of the rare instances when such a rule is applied in a nonconstitutional context. See Hall,
391 Mich. at 181-183 (quoting the constitutional provision regarding a witness’s competency
based on “his opinions on matters of religious belief” but concluding that it was violation of the
statute that justified automatic reversal). With that said, Hall’s automatic-reversal rule has been
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the law since 1974, and since then, courts have only applied it in criminal actions, not civil ones.
This narrow application and the reasonable inference to be drawn should not be ignored.1
Second, supporting a narrow application, there is early case law suggesting that the rule
of automatic reversal should not apply in civil actions when testimony about religious beliefs or
opinions is offered. In Sibley v Morse, 146 Mich. 463; 109 N.W. 858 (1906), the Supreme Court
considered a previous version of the statute, 1897 CL 10207. Similar to MCL 600.1436, 1897
CL 10207 provided that “no person shall be deemed incompetent as a witness in any court,
matter, or proceeding on account of his opinions on the subject of religion, nor shall any witness
be questioned in relation to his opinions thereon, either before or after he shall be sworn.”
Sibley, 146 Mich. at 469. Sibley involved a civil lawsuit in which several witnesses were
questioned about their own religious beliefs or the religious beliefs of other witnesses. Id. at
469-470. Counsel objected to some of the questions, but the trial court overruled and allowed
the testimony. Id. On appeal, the Supreme Court declined to reverse the jury verdict, despite the
violation of 1897 CL 10207. The Supreme Court explained that, even for those inquiries that
objections were made, the inquiries did not create any prejudice. Id.
Neither the Hall Court nor any subsequent decision of the Supreme Court has expressly
overruled Sibley or otherwise suggested that the decision is no longer good law. This Court is
“bound to follow decisions by [the Supreme Court] except where those decisions have clearly
been overruled or superseded.” Associated Builders & Contractors v City of Lansing, 499 Mich.
177, 191; 880 NW2d 765 (2016). Although it is not clear whether the issue here—automatic
reversal versus prejudice review—was squarely presented in Sibley, it is consequential that the
Supreme Court reviewed the improper testimony for prejudice before deciding whether to
reverse.
Third and finally, limiting Hall’s automatic-reversal rule to the criminal context makes
sense. As explained in Graves, there are good reasons that automatic reversal is disfavored for
the mine-run of cases. It is inefficient, requiring additional proceedings in the trial court, which
a prejudice analysis might otherwise show is not necessary. Moreover, the “passage of time,
erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.”
Graves, 458 Mich. at 481 n 4 (internal citation and notation omitted). These and other “social
costs” are effectively minimized by application of traditional harmless-error and plain-error
standards of appellate review. Other jurisdictions have arrived at a similar conclusion. See, e.g.,
Medes v Geico Corp, 97 Conn App 630, 633-634 and n 2; 905 A2d 1249 (2006) (reviewing for
prejudice the improper testimony of a person’s religious beliefs or opinions); Steele v Inn of
Vicksburg, Inc, 697 So 2d 373, 377-378 (Miss App, 1997) (same); Kolaric v Kaufman, 261 Cal
App 2d 20, 27-28; 67 Cal Rptr 729 (1968) (same).
1
In distinguishing criminal actions from civil ones, we admittedly paint with a broad brush. We
recognize that there are a limited set of civil actions that have criminal-like aspects, such as
parental-termination actions. The present action does not fall within that limited set, and,
accordingly, we take no position on whether actions in that set should be subject to Hall’s
automatic-reversal rule for violation of MCL 600.1436 or MRE 610.
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Therefore, because Hall’s automatic-reversal rule has been applied only in the criminal
context, and there is support in precedent and logic to reject the rule in the civil context, we will
eschew Hall’s rule and review the improper religious belief or opinion testimony for prejudice.
5. THE ERROR DOES NOT REQUIRE REVERSAL
Because the issue was preserved, we review the admission of the improper testimony to
determine whether such admission was harmless error or reversible error under MRE 103(a). A
trial court 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. Barnett v Hidalgo, 478 Mich. 151, 172; 732 NW2d 472 (2007); see also MCR
2.613(A); Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich. App. 144, 157-158; 908 NW2d
319 (2017).
Our review of the record confirms that it was more probable than not that the admission
of the improper testimony was not outcome determinative. Plaintiff’s wife’s credibility was
attacked with respect to the extent of attendant care claimed by plaintiff. Yet, several witnesses,
including plaintiff and his treating physician, testified about plaintiff’s need for services after the
accident. Moreover, the improper testimony was offered in response to defendant’s assertion
that plaintiff’s wife had submitted false reports to defendant—specifically, that plaintiff’s wife
had claimed that she was entitled to $80,000 for her assistance in helping plaintiff to the
bathroom for a year. Yet, defendant provided no documentary evidence to back up this assertion
in the first place. The relevant documentation submitted to defendant did not mention an
$80,000 claim—the documentation instead showed that plaintiff’s wife claimed that she helped
defendant with toileting for 17 days, consistent with her trial testimony that she helped plaintiff
to the bathroom for a couple of weeks. Finally, despite finding that plaintiff was entitled to
attendant-care and replacement-services benefits, the jury only awarded plaintiff $312 and $900,
respectively, for those services, which was substantially less than the requested amount. Thus,
the jury’s verdict indicates that it was not swayed by the improper inquiry into religious beliefs
or opinions. Accordingly, although the trial court erred by admitting the improper testimony, the
error was harmless and reversal is not required.
B. DIRECTED VERDICT OR JNOV
Defendant next argues that the trial court erred by denying its motions for directed verdict
or JNOV. Defendant argues that documentation submitted in support of plaintiff’s claim was
demonstrably false, thereby triggering the fraud exclusion contained in the insurance policy. We
review “de novo a trial court’s decision with regard to both a motion for a directed verdict and a
motion for JNOV.” Taylor v Kent Radiology, 286 Mich. App. 490, 499; 780 NW2d 900 (2009).
Both motions are “essentially challenges to the sufficiency of the evidence in support of a jury
verdict in a civil case.” Id. at 499. A directed verdict or JNOV is only appropriate when,
viewing the evidence in the light most favorable to the nonmoving party, the moving party is
entitled to judgment as a matter of law. Id. at 499-500. “If reasonable persons, after reviewing
the evidence in the light most favorable to the nonmoving party, could honestly reach different
conclusions about whether the nonmoving party established his or her claim, then the question is
for the jury.” Id. at 500.
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In Bahri v IDS Prop Cas Ins Co, 308 Mich. App. 420, 423-425; 864 NW2d 609 (2014),
this Court held that to void a policy under a fraud exclusion based on a willful misrepresentation
of a material fact, the insurer must prove: (1) the representation was false; (2) the representation
was material; (3) the insured made the representation (a) knowing that it was false or (b)
recklessly, without any knowledge of its truth; and (4) the insured made the representation with
the intention that the insurer act upon it. When there is a question of fact on at least one of the
elements, and the insured is not otherwise entitled to summary disposition, the matter is one for
the jury. Shelton v Auto-Owners Ins Co, 318 Mich. App. 648, 656; 899 NW2d 744 (2017).
Defendant argues that plaintiff admitted that his wife submitted a false claim for $80,000
based on a false report that she helped plaintiff in going to the bathroom every day for a year.
Yet, as noted earlier, nowhere in the records provided to the trial court does plaintiff’s wife seek
$80,000 for assistance with plaintiff’s toileting for a year; rather, the documentation she sent to
defendant indicates that she helped plaintiff with toileting for 17 days following plaintiff’s
accident. This documentation is consistent with her testimony that she helped plaintiff to the
bathroom for a couple weeks following plaintiff’s accident. It is unclear where in the record
defendant’s trial counsel came up with the purported $80,000 for one year of toileting assistance,
and defendant has similarly failed to clarify the matter on appeal. Defendant bore the burden of
proving an intentional misrepresentation sufficient to invoke its policy exclusion. Because
defendant has not proven the factual predicate supporting its argument, defendant was not
entitled to a directed verdict or JNOV.
C. ATTORNEY FEES
Finally, defendant argues that the trial court applied the wrong legal standard and
committed plain factual error in awarding attorney fees to plaintiff. “The no-fault act provides
for attorney fees when an insurance carrier unreasonably withholds benefits.” Ross v Auto Club
Group, 481 Mich. 1, 7; 748 NW2d 552 (2008); see also MCL 500.3142. A judgment that an
insurer owes PIP benefits that have not already been paid to the insured creates a rebuttable
presumption that the refusal or delay in paying benefits was unreasonable. Attard v Citizens Ins
Co of Am, 237 Mich. App. 311, 317; 602 NW2d 633 (1999). Thus, the insurer bears the burden of
showing that the withholding was “based on a legitimate question of statutory construction,
constitutional law, or factual uncertainty.” Id. “The trial court’s finding of unreasonable refusal
or delay will not be reversed unless it is clearly erroneous.” McKelvie v Auto Club Ins Ass’n,
203 Mich. App. 331, 335; 512 NW2d 74 (1994).
After the trial, plaintiff moved for attorney fees based on defendant’s refusal to pay the
full amount of work-loss benefits owed. In ruling on plaintiff’s motion, the trial court stated that
its conclusion was based on the “benefit of hindsight” and the evidence presented at trial. Yet,
the relevant inquiry “is not whether the insurer ultimately is held responsible for a given expense,
but whether the initial refusal to pay the expense was unreasonable.” McCarthy v Auto Club Ins
Ass’n, 208 Mich. App. 97, 105; 527 NW2d 524 (1994). The trial court’s reference to the “benefit
of hindsight” suggests that it may have made its decision on attorney fees based on the jury’s
ultimate finding of liability, though admittedly the phrase and context are ambiguous on this
point.
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We need not resolve the ambiguity here because any error was harmless. The record
makes clear that defendant failed to overcome the statutory presumption that it was unreasonable
not to pay the full amount of work-loss benefits owed. Defendant’s claims specialist testified
that she based her decision to authorize a lower reimbursement on certain CPA calculations, but
defendant failed to produce any evidence corroborating this assertion. By failing to produce any
records, there was no basis for the trial court, or this Court on appeal, to determine whether
defendant’s reliance on the purported CPA calculations was reasonable. Thus, the trial court was
warranted in awarding attorney fees to plaintiff, regardless of whether it stated the proper
standard during the hearing.
III. CONCLUSION
The law no longer requires or even permits the questioning of a witness about religious
beliefs or opinions, especially when such questioning is intended to impair or enhance a
witness’s credibility. The trial court erred by permitting plaintiff’s counsel to question plaintiff’s
wife about her and her husband’s religious beliefs and opinions. As to the remedy, while there is
a time to follow Hall’s automatic-reversal rule for such errors, there is a time to follow a
different path. As explained supra, we conclude that the automatic-reversal rule does not apply
in civil lawsuits and any improper religious belief or opinion testimony should be reviewed for
prejudice on appeal.
Because the issue was preserved, we review the improper testimony under this
jurisdiction’s harmless-error standard. Finding no reversible error, either with the improper
testimony or the other claims raised by defendant, we affirm both the judgment and the award of
attorney fees. As the prevailing party, plaintiff may tax costs under MCR 7.219.
/s/ Brock A. Swartzle
/s/ Douglas B. Shapiro
/s/ Mark T. Boonstra
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