Helen M Colston v. Ibrahim Salman-Assad Haddad

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
HELEN COLSTON, Individually and as Next UNPUBLISHED
friend to NANAJAH DAIKIA COLSTON, Minor, November 21, 2019
Plaintiff-Appellant/Cross-Appellee,
v No. 342087
Wayne Circuit Court
IBRAHIM SALMAN-ASSAD HADDAD, LC No. 15-016005-NI
Defendant,
and
ESURANCE INSURANCE COMPANY,
Defendant-Appellee/Cross-
Appellant.
Before: RONAYNE KRAUSE, P.J., and METER and STEPHENS, JJ.
PER CURIAM.
In this action to recover first-party no-fault personal insurance protection (PIP) benefits,
plaintiff appeals as of right the judgment of no cause of action. Defendant cross-appeals,
challenging the trial court’s order denying its motion for attorney fees and costs. We affirm in
all respects.
I. BACKGROUND
Plaintiff was involved in a roll-over automobile accident on July 4, 2015. Plaintiff was
examined at the hospital and discharged the same day, but she subsequently received several
solicitations from providers of medical and legal services. Plaintiff maintained that she suffered
from chronic pain, dizziness, and forgetfulness as a result of the accident. Plaintiff briefly
treated with Dr. Nazih Iskinder and then Dr. Jeffrey Parker, before choosing Dr. Lucia Zamorano
as her primary-care provider for accident-related treatment. Dr. Zamorano referred plaintiff for
MRIs and other diagnostic imaging, and also prescribed physical therapy and balance therapy.
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Dr. Zamorano certified plaintiff as disabled and unable to work. Plaintiff was also evaluated by
a neuropsychologist, Dr. Firoza Van Horn, who concluded that plaintiff was suffering from
cognitive impairments related to the accident.
Plaintiff submitted a claim to defendant, her no-fault insurer, for PIP benefits. Defendant
referred plaintiff to Dr. Leonard Sahn for an independent medical examination. Dr. Sahn
disputed Dr. Zamorano’s diagnoses and treatment recommendations, finding that plaintiff
sustained only a muscle strain in the July 2015 accident and did not suffer from any long-term
physical or cognitive impairment. Dr. Sahn took special note of the fact that “runners”1 had
coordinated plaintiff’s care since the accident. Dr. Christian Schutte, Ph.D., a licensed
psychologist, reviewed plaintiff’s records and concluded that plaintiff was not suffering from any
traumatic brain injury.
Plaintiff sought reimbursement from defendant for replacement and household services
performed by her mother, Barbara Stringer. The services included cleaning the kitchen and
bathroom, vacuuming, dusting, dishwashing, cooking, making beds, laundry, grocery shopping,
and running errands. In October 2015, defendant retained an investigative-service firm to
conduct unmanned surveillance of plaintiff’s home from October 20 to 25, 2015. The video
recorded plaintiff leaving the home each day in a vehicle for brief periods and also showed
plaintiff placing a box in a trash can and “dragging a large cardboard box” to the trash can. The
videos did not record Stringer visiting the house.
Plaintiff’s no-fault policy with defendant included a fraud provision, which stated:
“We” do not provide coverage or benefits for any person who has made
fraudulent statements or engaged in fraudulent conduct in connection with any
“accident” or “loss” for which coverage or benefits are sought under this policy.
Based on the conflicting diagnoses and the surveillance footage, defendant determined that
plaintiff’s claim for replacement services was fraudulent and, as a result, discontinued payment
of plaintiff’s PIP benefits.
After being notified of the discontinuation, plaintiff brought this action against defendant
for breach of the no-fault policy. The case proceeded to trial and a jury determined that plaintiff
made fraudulent statements or engaged in fraudulent conduct in connection with the 2015 motor
vehicle accident. Accordingly, the trial court entered a judgment of no cause of action in favor
of defendant, consistent with the fraud exclusion in plaintiff’s policy. Plaintiff then moved for a
new trial under MCR 2.611. Although the trial court expressed its disagreement with the jury’s
verdict, it denied plaintiff’s motion for a new trial. The trial court also denied defendant’s
motion for attorney fees and costs. These appeals followed.
1
A “runner” means “A law-office employee who delivers papers between offices and files
papers in court” or “One who solicits personal-injury cases for a lawyer.” Black’s Law
Dictionary, 8th ed.
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II. ANALYSIS
A. COERCED VERDICT
Plaintiff first argues that she is entitled to a new trial because the trial court coerced the
jury’s verdict. “Claims of coerced verdicts are reviewed on a case-by-case basis, and all of the
facts and circumstances, as well as the particular language used by the trial judge, must be
considered.” People v Malone, 180 Mich. App. 347, 352; 447 NW2d 157 (1989).
Jury deliberations began on the Wednesday before Thanksgiving. The first question on
the special verdict form asked, “Did the plaintiff make fraudulent statements or engage in
fraudulent conduct in connection with the July 4, 2015 motor vehicle accident?” The verdict
form advised the jury that if it answered “yes” to this question, it was not required to answer any
further questions. Consistent with the verdict form, the trial court instructed the jury that, “the
first question, if you answer yes to it, then you won’t need to go any further.”
Plaintiff argues that the trial court’s statement likely coerced the jury to find that plaintiff
engaged in fraud so that it could leave early for the Thanksgiving holiday. We disagree. The
trial court did not make any mention of the Thanksgiving holiday during this instruction, nor did
the trial court indicate its intended schedule for jury deliberations. Jurors are presumed to have
understood and followed the trial court’s instructions, and to have honored their oaths to decide
the case without partiality. People v Cline, 276 Mich. App. 634, 638; 741 NW2d 563 (2007);
Bordeaux v Celotex Corp, 203 Mich. App. 158, 164; 511 NW2d 899 (1993). The trial court’s
instruction was a proper statement of the law and there is nothing in the record from which we
may conclude that the jury’s finding was based on its desire to conclude deliberations before
Thanksgiving. In short, there is no basis in the record to conclude that the jury did not honor its
oath to decide the case fairly and impartially. Plaintiff’s argument to the contrary is without
merit.
B. ATTORNEY MISCONDUCT
Plaintiff argues that the trial court erred by denying her motion for a new trial because
defense counsel’s remarks during opening statements and closing argument improperly inflamed
the jury. A new trial may be granted under MCR 2.611(A)(1)(b) where a party’s “substantial
rights are materially affected” by reason of “[m]isconduct of the jury or of the prevailing party.”
“A trial court’s decision to grant or deny a motion for a new trial under MCR 2.611 is reviewed
for an abuse of discretion.” Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 761; 685 NW2d
391 (2004). “An abuse of discretion occurs when a court chooses an outcome that is not within
the principled range of outcomes.” McManamon v Redford Twp, 273 Mich. App. 131, 138; 730
NW2d 757 (2006). “Instruction by a trial court that the statements of counsel are not evidence is
generally sufficient to cure any prejudice that might arise from improper remarks by counsel.
Tobin v Providence Hosp, 244 Mich. App. 626, 641; 624 NW2d 548 (2001). However, a new
trial is warranted when an attorney’s misconduct “may have caused the result or played too large
a part and may have denied a party a fair trial.” Reetz v Kinsman Marine Transit Co, 416 Mich.
97, 103; 330 NW2d 638 (1982).
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Plaintiff argues that defense counsel inflamed the jury by repeatedly denigrating
plaintiff’s counsel and physicians, portraying them as greedy and unscrupulous, which diverted
the jury from the merits of plaintiff’s case. “Counsel may, acting on their own judgment as to
propriety and good taste, discuss the character of witnesses, the probability of the truth of
testimony given on the stand, and may, when there is any reasonable basis for it, characterize
testimony.” Kern v St Luke’s Hosp, 404 Mich. 339, 353-354; 273 NW2d 75 (1978) (internal
citation, brackets, emphasis, and quotation marks omitted). “But where language is such as
evinces a studied purpose to inflame or prejudice the jury, based upon facts not in the case, this
Court has not hesitated to reverse.” Id. at 354 (internal citation, emphasis, and quotation marks
omitted).
Plaintiff takes issue with the following remarks by defense counsel:
 [T]his is a case about unlawful solicitation, or what’s commonly referred to, as
ambulance chasing.”
 “[Y]ou guys [jurors] weren’t born yesterday” (in regard to the connection between Dr.
Zamorano’s practice and the MRI provider).
 “[Neurosurgeons] make money, doing surgery, . . . if you can’t . . . convince your patient
[that she needs] surgery, what better way [to make money treating the patient] to send
them on for . . . therapy, at your physical therapy location.”
 “Somebody’s making some money, somewhere.”
 “She’ll file a law suit about anything.”
 “[Plaintiff’s physicians] stand to profit [but] Esurance’s experts, do not.”
The challenged remarks were based on the evidence at trial and properly presented
defendant’s theory of the case to the jury. A central theme of the defense theory was that
plaintiff and her physicians abused the no-fault system. According to defendant, plaintiff’s
physicians recommended unnecessary treatment for plaintiff and falsely attributed plaintiff’s
complaints to the July 2015 accident and plaintiff went along with this scheme to recover PIP
benefits. Defense counsel cross-examined plaintiff’s physicians at length about their financial
ties to the case, plaintiff’s numerous diagnoses, and the link between the accident and any of
plaintiff’s alleged ailments. Evidence was also presented that numerous entities had solicited
plaintiff for treatment after her accident and that at least one of plaintiff’s physicians was closely
linked to her attorney. The challenged comments relate this evidence to defendant’s fraud theory
and were not so inflammatory as to create a concern that the jury acted out of passion, rather than
thoughtful consideration of the merits of plaintiff’s claim.
Plaintiff also argues that defense counsel made an improper civic duty argument by
saying:
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I know you’re going to look at the facts, and the evidence, and use your
common sense, your collective wisdom, and your life experiences, to understand,
this is not what the no-fault act was meant for.
Counsel in a civil action is not permitted to “inject issues into the trial broader than those pled
and brought out by the testimony below.” Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich
App 615, 637; 329 NW2d 760 (1982). PIP benefits include all “reasonable charges incurred for
reasonably necessary products, services and accommodations for an injured person’s care,
recovery, or rehabilitation.” MCL 500.3107(1)(a). Under MCL 500.3107(1), a PIP claimant
must show that the claimed expenses are: “(1) for an injured person's care, recovery, or
rehabilitation, (2) reasonably necessary, (3) incurred, and (4) reasonable.” Clark v Al-Amin, 309
Mich. App. 387, 396; 872 NW2d 730 (2015) (internal citation, ellipsis, and quotation marks
omitted). Defense counsel’s statement that “this is not what the no-fault act was meant for” did
not inject any issues into the jury’s deliberation that were not already before it. Taken in context,
the statement is an argument that plaintiff’s injuries were fabricated and therefore the claimed
expenses were not reasonably necessary for plaintiff’s post-accident care.
Finally, plaintiff argues that she is entitled to a new trial because defense counsel
introduced new evidence during her closing argument by telling the jury that plaintiff was
currently enrolled in a PhD program and that this enrollment was evidence that plaintiff was not
cognitively impaired. No evidence of any PhD enrollment was presented to the jury during trial
and, therefore, we agree with plaintiff that the statement was entirely improper. Kern, 404 Mich.
at 354. Nonetheless, we are unable to find that the statement requires reversal. First, when
plaintiff’s counsel challenged the statement, defense counsel admitted that the statement had no
basis in the record. Second, in front of the jury, the trial court strongly admonished defense
counsel that the statement was “improper” because it had no basis in the testimony. Finally, the
jury was instructed—at the outset of this case—that the attorney’s statements were not evidence
and—at the conclusion of the trial—that the evidence consisted only of the witnesses’ testimony
and the exhibits. “Jurors are presumed to follow [the trial court’s] instructions, and instructions
are presumed to cure most errors.” Zaremba Equipment, Inc v Harco Nat’l Ins Co, 302 Mich
App 7, 25; 837 NW2d 686 (2013), quoting People v Abraham, 256 Mich. App. 265, 279; 662
NW2d 836 (2003). There is nothing in the record from which we can conclude that the jury
decided this case on counsel’s improper statement, rather than on the evidence properly before it.
Therefore plaintiff is not entitled to relief.
C. GREAT WEIGHT OF THE EVIDENCE
Plaintiff argues that the trial court erred by denying her motion for a new trial on the
ground that the jury’s verdict was against the great weight of the evidence. A new trial may be
granted under MCR 2.611(A)(1)(e) where “[a] verdict or decision [is] against the great weight of
the evidence or contrary to law.” “When a party claims that a jury verdict is against the great
weight of the evidence,” we may not overturn the verdict unless the verdict “is manifestly against
the clear weight of the evidence.” Wiley v Henry Ford Cottage Hosp, 257 Mich. App. 488, 498;
668 NW2d 402 (2003). “The issue usually involves matters of credibility or circumstantial
evidence, but if there is conflicting evidence, the question of credibility ordinarily should be left
for the fact-finder.” Dawe v Bar-Levav & Assoc (On Remand), 289 Mich. App. 380, 401; 808
NW2d 240 (2010).
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The jury heard testimony that several practitioners solicited plaintiff after her accident.
Defendant’s physician testified that plaintiff’s ailments were either not caused by the accident or
were nonexistent. Although plaintiff sought reimbursement for the services Stringer provided to
her, the surveillance video did not show Stringer entering the home over the course of several
days. Additionally, the surveillance video shows plaintiff engaging in activities arguably
inconsistent with her claimed injuries. Plaintiff presented contrary testimony from her medical
providers, who claimed that plaintiff’s injuries were legitimate and caused by the accident.
Plaintiff testified that Stringer had visited the home to provide services, but did so through a back
entrance which was not caught by the surveillance video. This conflicting evidence created
issues of credibility for the jury, which it resolved in defendant’s favor. Because the jury’s
verdict was based on competent evidence—specifically, the testimony of defendant’s expert
witnesses and the surveillance video—it may not be set aside.
Plaintiff complains that the trial court failed to focus on the great weight of the evidence
ground for granting a new trial, and instead only considered whether there was an “error of law”
to warrant a new trial under MCR 2.611(A)(1)(a) or (g), and whether the “verdict . . . [was]
contrary to law” under subsection (e). Plaintiff’s argument relates to the trial court’s statement at
the motion hearing, “You did an ‘A’, ‘G’, and I didn’t know what the error of law was. I guess
you mean, the standard that I decided?” The trial court, however, also specifically stated that its
ruling addressed MCR 2.611(A)(1)(d) (grossly inadequate verdict), and the “great weight of the
evidence,” MCR 2.611(A)(1)(e). Consistent with our analysis, the trial court commented that it
would not invade the province of the jury. Additionally, in its ruling, the trial court noted that
plaintiff frequently testified that she did not know or remember facts. These statements are
consistent with a great-weight analysis.
Plaintiff emphasizes that the trial court indicated that it did not personally believe that
plaintiff committed fraud. The trial court’s personal opinions on the evidence, however, are not
relevant to a great-weight motion. As the trial court noted below, and as we now reiterate on
appeal, where competent evidence supports the jury’s verdict, it cannot be set aside.
Accordingly, the trial court did not err by denying plaintiff’s motion for a new trial.
D. INSTRUCTIONAL ERROR
Plaintiff argues that the trial court erroneously instructed the jury on the defense of fraud.
“Claims of instructional error are reviewed de novo,” but the “trial court’s determination that a
jury instruction is accurate and applicable to the case is reviewed for an abuse of discretion.”
Estate of Goodwin v Northwest Michigan Fair Assoc, 325 Mich. App. 129, 156-157; 923 NW2d
894 (2018) (internal citations and quotation marks omitted). “The instructions should include all
the elements of the plaintiff’s claims and should not omit material issues, defenses, or theories if
the evidence supports them.” Id. (internal citation and quotation marks omitted).
A defendant claiming the defense of fraud must prove, by a preponderance of the
evidence, Stein v Home-Owners Ins Co, 303 Mich. App. 382, 387-391; 843 NW2d 780 (2013), the
following four elements:
(1) the misrepresentation was material, (2) that it was false, (3) that the insured
knew that it was false at the time it was made or that it was made recklessly,
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without any knowledge of its truth, and (4) that the insured made the material
misrepresentation with the intention that the insurer would act upon it. A
statement is material if it is reasonably relevant to the insurer’s investigation of a
claim. [Bahri v IDS Prop Cas Ins Co, 308 Mich. App. 420, 424-425; 864 NW2d
609 (2014) (internal citation omitted).]
A plaintiff seeking to establish common-law fraud must prove six elements by clear and
convincing evidence:
The general rule is that to constitute actionable fraud it must appear: (1) That
defendant made a material representation; (2) that it was false; (3) that when he
made it he knew that it was false, or made it recklessly, without any knowledge of
its truth, and as a positive assertion; (4) that he made it with the intention that it
should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and
(6) that he thereby suffered injury. Each of these facts must be proved with a
reasonable degree of certainty, and all of them must be found to exist; the absence
of any one of them is fatal to a recovery. [Candler v Heigo, 208 Mich. 115, 121;
175 N.W. 141 (1919), overruled in United States Fidelity & Guaranty Co v Black,
412 Mich. 99, 116 n 8; 313 NW2d 77 (1980) (overruling Candler insofar as it
purports to hold that all six common-law requirements of fraud must be proven in
an innocent-misrepresentation case) (internal citation and quotation marks
omitted).]
The trial court instructed the jury as follows:
The Defendant alleges the Plaintiff has made fraudulent statements, or
engaged in fraudulent conduct, in connection with the July 4th, 2015, motor
vehicle accident, for which coverage or benefits are sought under the Defendant’s
policy.
The Defendant must show that:
One, the misrepetation [sic] – misrepresentation was material.
Two, that it was false.
Three, that the Plaintiff knew that it was false at the time it was made, or
that it was made recklessly, without any knowledge of its truth.
And four, that the Plaintiff made the material misrepresentation with the
intention that the Defendant would act upon it.
The representation is material if it is reasonably relevant to the
Defendant’s investigation of a claim.
Each of these elements must be proven by the Defendant, and all must be
found to exist.
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The absence of any one of these is fatal to this defense.
If you find that the Plaintiff made fraudulent statements, or engaged in
fraudulent conduct, in connection with the July 4th, 2015, motor accident, then,
under the terms of the Plaintiff’s policy with the Defendant, the Plaintiff is not
entitled to coverage, or any No-fault P.I.P. benefits for the July 4th, 2015, motor
vehicle accident.
Plaintiff argues that the trial court’s instructions were erroneous because (1) defendant
was required to prove fraud by clear and convincing evidence and (2) the trial court did not
instruct the jury on defendant’s burden to prove reliance on the misrepresentation and a resulting
injury. Plaintiff’s argument, however, conflates the elements of a plaintiff’s cause of action for
fraud with a defendant’s defense of fraud. As already noted, the burden of proof for a fraud
defense is a preponderance of the evidence and the defendant need not show reliance or injury.
Plaintiff’s argument is without merit.
E. DEFENDANT’S CROSS-APPEAL
Lastly, defendant argues that the trial court erred by denying its motion for attorney fees
and costs under the no-fault act, MCL 500.3148(2). At the time of trial, MCL 500.3148(2)
provided:2
An insurer may be allowed by a court an award of a reasonable sum
against a claimant as an attorney’s fee for the insurer’s attorney in defense against
a claim that was in some respect fraudulent or so excessive as to have no
reasonable foundation. To the extent that personal or property protection
insurance benefits are then due or thereafter come due to the claimant because of
loss resulting from the injury on which the claim is based, such a fee may be
treated as an offset against such benefits; also, judgment may be entered against
the claimant for any amount of a fee awarded against him and not offset in this
way or otherwise paid.
“The decision to award or deny attorney fees under MCL 500.3148(2) is reviewed for an abuse
of discretion.” Gentris v State Farm Mut Auto Ins Co, 297 Mich. App. 354, 361; 824 NW2d 609
2
MCL 500.3148(2) was subsequently amended by 2019 PA 21, effective June 11, 2019. The
current version of the section provides:
A court may award an insurer a reasonable amount against a claimant as an
attorney fee for the insurer’s attorney in defending against a claim that was in
some respect fraudulent or so excessive as to have no reasonable foundation. A
court may award an insurer a reasonable amount against a claimant's attorney as
an attorney fee for defending against a claim for which the client was solicited by
the attorney in violation of the laws of this state or the Michigan rules of
professional conduct.
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(2012). “An abuse of discretion occurs when the trial court’s decision is outside the range of
reasonable and principled outcomes.” Id. (internal citation and quotation marks omitted).
“However, for purposes of MCL 500.3148(2), a trial court’s findings regarding the fraudulent,
excessive, or unreasonable nature of a claim should not be reversed on appeal unless they are
clearly erroneous.” Id. (internal citation and quotation marks omitted). “A decision is clearly
erroneous when a reviewing court is left with a firm and definite conviction that a mistake was
made by the lower court.” Id.
Essentially, defendant argues that the jury’s finding of fraud entitled it to attorney fees
under MCL 500.3148. We disagree.
The language of MCL 500.3148(2) indicates that a court may exercise its
discretion by awarding attorney fees to an insurer, but only if a claim was in some
respect fraudulent or so excessive as to have no reasonable foundation. The
statute does not mandate that the court award attorney fees on a finding of fraud
or excessiveness, nor does the statute require the court’s findings to be based on
the jury’s verdict. However, the findings must be able to survive review under the
clearly-erroneous standard. Further, an award of attorney fees under the statute
can be entered by a court on the basis of either fraud standing alone or
excessiveness with no reasonable foundation or, of course, on the basis of both
factors. [Id. at 361-362 (emphasis added).]
As noted previously, the parties presented conflicting evidence on the question of fraud.
The trial court was aware of the jury’s finding of fraud, but believed that the jury might have
been influenced by plaintiff’s memory lapses. The trial court found that plaintiff’s preexisting
conditions were aggravated by the accident, which caused her serious suffering. The trial court
was also impressed that plaintiff’s claims for personal, nonmedical benefits, were not excessive,
and that plaintiff did not attempt to take advantage of attendant-care benefits or transportation
benefits. Although the trial court’s decision is inconsistent with the jury’s verdict, MCL
500.3148(2) does not require the court’s findings to be based on the jury’s verdict. The trial
court’s decision was supported by the evidence, and we are not left with a definite and firm
conviction that it made a mistake. Accordingly, we conclude that the trial court’s decision not to
award attorney fees under MCL 500.3148(2) was not outside the range of reasonable and
principled outcomes.
Defendant also argues that the trial court erred by refusing to award attorney fees and
costs under MCR 2.114,3 MCR 2.625, and MCL 600.2591. Again, we disagree. These
authorities allow the trial court to impose sanctions on a party or attorney who brings a frivolous
lawsuit, i.e., one that is devoid of legal merit. As noted already, the conflicting evidence
3
MCR 2.114 has been repealed, effective September 1, 2018. See 501 Mich, Advance Sheets
No. 3, cxxxvii (2018). Former MCR 2.114 has been substantially relocated to current MCR
1.109(E).
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presented at trial would have supported either party’s position. Therefore, the trial court did not
err by declining to impose attorney fees under these authorities.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Patrick M. Meter
/s/ Cynthia Diane Stephens
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