Jackovich v. General Adjustment Bureau, Inc

119 Mich. App. 221 (1982) 326 N.W.2d 458

JACKOVICH
v.
GENERAL ADJUSTMENT BUREAU, INC.

Docket No. 52856.

Michigan Court of Appeals.

Decided September 7, 1982.

Tercha & Daavettila, for plaintiffs.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Jack T. Jacobs, for General Adjustment Bureau, Inc., and Dean Albrecht.

Foster, Meadows & Ballard, for Boynton Engineers.

Baxter & Hammond, for Continental Insurance.

Before: BEASLEY, P.J., and R.B. BURNS and M.B. BREIGHNER,^[*] JJ.

R.B. BURNS, J.

Plaintiffs appeal and defendants, Continental Insurance Company and Boynton Engineers, Inc., cross-appeal from the verdict in a personal injury and wrongful death case. The jury found in favor of plaintiffs and against both Continental Insurance Company and Boynton Engineers, Inc., on the basis of negligence and against Continental Insurance Company for wrongful interference with economic advantage.

The trial involved what is commonly referred to as a "suit within a suit". By way of background, plaintiffs Jackovich had a new home erected. Although the new house was completed, the Jackoviches refrained from moving in because a serious problem with water entering the basement existed. Attempts to remedy the leakage were unsuccessful.

In order to alleviate the problem, the Jackoviches bought an electric sump pump to remove the water from the basement. Mr. Jackovich and Mr. George Stalo entered the basement of the home to pump out the accumulated water when the accident occurred. Apparently, when the plug of the pump was removed from the outlet, a spark flew and ignited a quantity of propane causing an explosion and a flashfire. Mr. Jackovich suffered burns over 40% of his body, and Mr. Stalo eventually died from the explosion.

The propane-fired boiler installed in the home had been connected to the propane tank by the propane supplier, Northern Propane Gas Company. The Jackoviches' house was insured by Continental Insurance Company. Continental Insurance Company also carried the liability insurance for Northern Propane Gas Company.

Continental Insurance Company assigned the adjustment of the loss covered by the homeowners' policy to Dean Albrecht of General Adjustment Bureau, Inc. On the other hand, as instructed by Continental, a local adjuster employed by Michigan Claims Service was in charge of investigating the liability coverage of Northern Propane Gas Company.

Dean Albrecht hired Boynton Engineers to examine the scene of the accident and locate the cause of the explosion. Boynton Engineers sent their employee, Simon Choi, to conduct the investigation. While on the sight of the accident Simon Choi removed a copper tubing, two flare nuts, and an elbow of the propane line from the premises. The condition of these pieces was important because a carbon deposit known as "flashback" would appear on the tube if a propane leak caused the explosion.

Plaintiffs' attorney requested a copy of the report that Choi prepared. The request was refused. Plaintiffs' attorney twice filed motions in the circuit court to produce the report, which were denied. At this point, plaintiffs' attorney had his own expert inspect the basement.

The fact that Choi had removed parts from the basement was not immediately apparent because on the day of the fire the local fire chief had removed some parts from the basement. Two months before the original trial was to begin, Choi's deposition was taken. The deposition revealed, for the first time, that Choi had lost the parts removed from the basement.

Based on the fact that the parts Choi removed were no longer available for inspection, the efforts of the plaintiffs' expert to determine the cause of the explosion were impeded. Plaintiffs' attorney concluded that without a more concrete finding by his expert, he possibly could not establish his case. Thus, the case was settled. However, Northern Propane Gas Company, insured by Continental, did not contribute to the settlement, and the case against it was dismissed with prejudice. After the original case was settled, plaintiffs instituted this suit.

The first issue on appeal is whether the trial judge erroneously failed to instruct the jury on the elements of damage which would have been at issue if the original suit had gone to trial.

Plaintiffs and defendants, Continental Insurance Company and Boynton Engineers, Inc., argue that because this was a derivative suit, the jury should have received the same instruction that would have been given in the underlying action. Defendants Dean Albrecht and General Adjustment Bureau argue that, since the original case did not reach trial, it is impossible to determine what instructions the original jury should have received and, therefore, the judge's refusal to instruct the jury in regard to the original action was proper.

The plaintiffs' theory of the case was that defendants' conduct reduced the chances of a suitable judgment in the original case. In order for a jury to evaluate this claim, the plaintiffs had to establish that but for defendants' actions they would have recovered a higher verdict in the initial suit than the settlement gained.

The trial judge recognized that the litigation involved two lawsuits, i.e., a "suit within a suit". Yet, he failed to give the jury any guidance or specific instructions on the theories surrounding the original action. He instructed the jury on the interplay between the two lawsuits as follows:

"You are further instructed that you are to assume that in the first original case between the plaintiffs and the eight defendants that a jury, or the jury in that case, if it would have been tried and not settled, would have been properly instructed as to the plaintiff's [sic] theories of recovery, the damages, and the defendant's [sic] affirmative defenses of denial of any liability."

Although usually the litigation of a "suit within a suit" arises in the legal malpractice setting, cases have found that the same rules apply to claims of negligence by insurance adjusters. Gay & Taylor, Inc v American Casualty Co, 381 S.W.2d 304 (Tenn, 1964). The general rule in the litigation of a "suit within a suit" was set forth in Basic Food Industries v Grant, 107 Mich. App. 685, 692; 310 NW2d 26 (1981):

"As another commentator has stated the matter:

"``A client's burden of proving injury as a result of his attorney's negligence is especially difficult to meet when the attorney's conduct prevented the client from bringing his original cause of action or the attorney's failure to appear caused judgment to be entered against him as a defendant. In addition to proving negligence, a client must show that but for his attorney's negligence he would have been successful in the original litigation; in effect, he must prevail in two distinct suits.' Note, Attorney Malpractice, 63 Colum L Rev 1292, 1307 (1963). (Emphasis added.)"

The jury, in order to determine if the plaintiffs would have been successful in the original litigation, needed to be specifically instructed on the theories involved in the underlying lawsuit. We appreciate the difficulty a trial judge confronts in determining what instructions are properly presented to a jury in a "case within a case". Nonetheless, the instructions the jury received here were vague and afforded the jury little guidance.

Chocktoot v Smith, 280 Or 567, 571; 571 P2d 1255 (1977), where legal malpractice was claimed, emphasized that despite some shortcomings in the system a jury in a "suit within a suit" must be regarded as the original jury. The court stated:

"The question is on what information the jury is to reach this conclusion.

"The answer seems easiest when the outcome in the first case which is at issue in the second itself depended upon a verdict, for then one can in effect let the parties argue the first case to the second jury. That is the practical answer, although it is not a wholly logical one if the question were really to reconstruct what the earlier jury would have done. What is done, in effect, is to substitute for that question the customary legal fiction of an ``objective' standard, in this instance the probable behavior of a reasonable jury, and to let the second jury cast itself in that role." (Footnote omitted.)

The parties requested the judge to instruct the jury on the theories in the underlying cause of action. The trial judge refused the request. Failure to instruct the jury on applicable, accurate standard jury instructions pursuant to a request is reversible error. Javis v Ypsilanti Bd of Ed, 393 Mich. 689, 697; 227 NW2d 543 (1975); Socha v Passino, 405 Mich. 458; 275 NW2d 243 (1979). Therefore, we find that the trial judge erroneously refused to give the relevant Standard Jury Instructions applicable at the time the original trial was scheduled.

Plaintiffs next claim that they should have been allowed to cross-examine the attorney who represented Northern Propane Gas Company in the underlying suit. MCL 600.2161; MSA 27A.2161 provides:

"Sec. 2161. In any suit or proceeding in any court in this state, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true."

The trial court refused to permit plaintiffs to cross-examine the attorney concluding "that Mr. McCarthy is not an opposite party, neither an employee or an agent".

Where no agency relationship exists, a judge's denial of the right to cross-examine a witness is proper. Thompson v Essex Wire Co, 27 Mich. App. 516; 183 NW2d 818 (1970). However, attorney McCarthy's testimony falls under the ambit of MCL 600.2161; MSA 27A.2161. Attorney McCarthy represented Northern Propane Gas Company during the underlying suit. Northern Propane Gas Company, represented by Continental Insurance Company, was an adverse party to plaintiffs because their best interests were in conflict. We find that the attorney was an agent of Northern Propane Gas Company in the role he played in the settlement negotiations. See Frazier v Hurd, 6 Mich. App. 317; 149 NW2d 226 (1967).

Defendants argue that despite the mandate of the statute, the judge's ruling was proper, pursuant to MRE 611(a). MRE 611(a) provides:

"Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."

The general rule is that where a conflict exists between a statute and a general court rule, the latter prevails. In re Nathan, 99 Mich. App. 492, 494; 297 NW2d 646 (1980). However, the purpose underlying MCL 600.2161; MSA 27A.2161 is to allow the truth to be brought out with great regularity. Ferguson v Gonyaw, 64 Mich. App. 685; 236 NW2d 543 (1975). This purpose is consistent with MRE 611(a). Moreover, MRE 611(c) specifically provides:

"Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions."

We conclude that the trial court erred in denying plaintiffs the right to cross-examine.

Defendant Continental Insurance Company argues that the jury's verdict cannot be allowed to stand because it is legally and logically inconsistent. The jury found Continental Insurance Company liable for negligently selecting Choi, an employee of Boynton Engineers. Dean Albrecht, of General Adjustment Bureau, not Continental Insurance Company, hired Boynton Engineers, Inc. Yet, General Adjustment Bureau was found not negligent for hiring Choi.

We agree that the verdict is inconsistent. Continental Insurance Company, who was further removed from the selection process than General Adjustment Bureau, was found to be negligent. General Adjustment Bureau was excused from any negligence. When an inconsistent verdict is delivered, a trial judge has the obligation to remedy the verdict with or without objection by the parties. Farm Bureau Ins Co v Sears, Roebuck & Co, 99 Mich. App. 763, 766; 298 NW2d 634 (1980).

Harrington v Velat, 395 Mich. 359; 235 NW2d 357 (1975), involved an action against the City of Detroit and some Detroit police officers. A verdict was returned against the city but not against the police officers. The Supreme Court reversed the decision because the city's liability was derivative. Harrington, supra, 360, stated:

"However, the general rule is that where a verdict in a civil case is inconsistent and contradictory, it will be set aside and a new trial granted.

"``Ordinarily, a verdict may and should be set aside and a new trial granted where it is self-contradictory, inconsistent, or incongruous, and such relief should, as a rule, be granted where more than one verdict are [sic] returned in the same action and they are inconsistent and irreconcilable.' 66 CJS, New Trial, § 66, pp 197-198."

Farm Bureau Ins v Sears, Roebuck & Co, supra, 769, held that the proper remedy to correct an inconsistent verdict was "via further instruction and jury deliberation".

Here, no action was taken to correct the inconsistent verdicts. The failure to ensure that the defective verdict was remedied requires that a new trial be granted.

The next issue plaintiffs dispute on appeal is that where the claim of intentional interference with economic interest was presented to the jury the judge's refusal to instruct the jury on punitive damages was error. The defendants argue that plaintiffs' challenge is unmerited: the requested instruction was a total misstatement of the law of damages in Michigan.

Plaintiffs' proposed instruction reads as follows:

"If you find that any or all of the defendants intentionally or willfully interfered with the proper handling of plaintiffs' earlier personal injury case in a wrongful manner, you may award punitive damages to the plaintiffs from any and all defendants who acted in such a manner.

"Punitive damages may be imposed to punish a defendant for wrongful conduct which is willful and intentional."

The issue of the applicability of punitive damages usually is raised in actions for tortious interference with a contract. Yet, we find the same principles apply here to the rights of the parties undertaking litigation. Both situations are concerned with an economic expectancy.

In American Central Corp v Stevens Van Lines, Inc, 103 Mich. App. 507, 514-515; 303 NW2d 234 (1981), this Court stated:

"The terms ``punitive' and ``exemplary' damages have frequently been confused or used interchangeably. However, the focus of the two damages is different. Punitive damages are awarded solely to punish or to make an example of a defendant because of the malice or recklessness with which he acted. Wronski v Sun Oil Co, 89 Mich. App. 11, 27; 279 NW2d 564 (1979), lv den 407 Mich. 863 (1979); Ray v Detroit, 67 Mich. App. 702, 704; 242 NW2d 494 (1976), lv den 397 Mich. 828 (1976). Exemplary damages are awarded for injury to feelings and for the sense of indignity and humiliation suffered by a plaintiff because of injury maliciously and wantonly inflicted. Ray, supra. In short, the former focuses on ``punishing' the defendant and the latter focuses on ``compensating' the plaintiff."

In Ray v Detroit, 67 Mich. App. 702, 704; 242 NW2d 494 (1976), this Court discussed the circumstances under which the award of compensatory damages is proper:

"The terms ``exemplary' damages, ``punitive' damages and ``vindictive' damages have frequently been confused or used interchangeably. However, in Michigan only exemplary damages which are compensatory in nature are allowable. They are recoverable for injury to feelings and for the sense of indignity and humiliation resulting from injury maliciously and wantonly inflicted. Recovery is restricted to the party who has received the physical injury. They are never allowed, however, for the purpose of punishing or making an example of a defendant. Smith v Jones, 382 Mich. 176; 169 NW2d 308 (1969) (concurring opinion of Justice ADAMS), Ross v Leggett, 61 Mich. 445; 28 N.W. 695 (1886); McFadden v Tate, 350 Mich. 84; 85 NW2d 181 (1957); Detroit Daily Post Co v McArthur, 16 Mich. 447 (1868); Hyatt v Adams, 16 Mich. 180 (1867)."

More recently, the Supreme Court also has provided that an award of punitive damages for punishing a defendant is prohibited in Michigan. Willett v Ford Motor Co, 400 Mich. 65; 253 NW2d 111 (1977); Kewin v Massachusetts Mutual Life Ins Co, 409 Mich. 401; 295 NW2d 50 (1980).

We agree with the defendants' argument, namely, that the instruction represents a misstatement of Michigan law. Where the conduct is found to be intentional and the jury seeks to compensate plaintiffs for humiliation, sense of outrage and indignity, an award for exemplary damages is proper. However, the proposed instructions sought punitive damages for the purpose of punishing the defendants. Such an instruction, which requested that punitive damages be awarded solely to punish defendants, is not recognized in Michigan. See Willett v Ford Motor Co, supra; Kewin v Massachusetts, supra. The trial judge properly refrained from giving the requested instruction since it misstated the Michigan law of damages.

Plaintiffs and defendants raise a multitude of issues which may be disposed of summarily.

The defendants' request for a directed verdict in plaintiffs' cause of action for fraud and misrepresentation was granted. Plaintiffs claim that this was error because they established a prima facie case that Continental Insurance Company had a duty to divulge its conflict of interests. Defendants assert that the evidence showed no foundation for plaintiffs' claim of fraud and misrepresentation.

A review of a motion for a directed verdict is made with "the proofs and reasonable inferences therefrom * * * viewed in the light most favorable to plaintiff". Humenik v Sternberg, 371 Mich. 667, 669; 124 NW2d 778 (1963). Following this standard, we find that the directed verdict was properly granted. Continental Insurance Company, aware of a conflict, made sure that the two claims were kept separate and that independent investigations were pursued. General Adjustment Bureau and Albrecht did not benefit from the alleged fraud or misrepresentation.

The granting of a directed verdict in favor of defendants was proper. The element of intent is required to support a claim of conversion. Thoma v Tracy Motor Sales, Inc, 360 Mich. 434; 104 NW2d 360 (1960). This element was lacking where no evidence was presented to establish that Choi intentionally lost the parts.

Plaintiffs argue that the trial judge erroneously granted defendants' motion for a directed verdict on the claim of bad faith. The granting of the motion was proper. The plaintiffs base their argument on the breach of an alleged oral contract with Continental Insurance Company to share a mutual expert. The jury specifically found that there was no breach of a contract by Continental Insurance Company.

Defendant Boynton Engineers, Inc., alleges that the trial court erred in denying its motion for a directed verdict on plaintiffs' claim of negligence against Boynton Engineers, Inc., because there was not sufficient evidence to conclude that the loss of the pertinent parts prejudiced plaintiffs' initial case. If reasonable men could differ as to inferences drawn from the evidence, a directed verdict must be denied. Cryderman v Soo Line R Co, 78 Mich. App. 465, 480; 260 NW2d 135 (1977). Here, due to the loss of the parts, the plaintiffs were deprived of a conclusive opinion, formulated by their expert, as to the origin of the explosion. Therefore, the judge's ruling on the motion for a directed verdict was proper.

The plaintiffs argue that the trial court erred when it excluded the testimony of the attorney for the contractor in the underlying suit.

The admission of evidence into trial is within the trial judge's discretion. Jarecki v Ford Motor Co, 65 Mich. App. 78, 83; 237 NW2d 191 (1975). The judge's ruling on the evidence offered will not be upset absent a clear abuse of discretion. Spalding v Spalding, 355 Mich. 382; 94 NW2d 810 (1959). We find that no abuse of discretion occurred here, where the attorney asserted the attorney-client privilege until the trial, thereby excluding the possibility of discovery by the defendants prior to the trial. Other attorneys representing other defendants in the original suit did testify at the trial.

Plaintiffs further assert that the trial court erroneously refused to allow an employee of Continental Insurance Company to testify. To repeat, the admissibility of evidence rests in the trial judge's discretion. Aetna Life Ins Co v Brooks, 96 Mich. App. 310; 292 NW2d 532 (1980). Where large portions of the employee's deposition were read into trial, it was not an abuse of discretion to preclude the live testimony of the employee. The evidence already was before the jury. The plaintiffs were permitted to examine the employee on nonrepetitive testimony.

The trial judge's instruction to the jury on plaintiffs' claim under the insurance policy for property damage coverage is appealed as constituting reversible error. However, the parties failed to object below, as required by GCR 1963, 516.2. Where a party fails to object below to an instruction, absent manifest injustice, the trial judge's instruction will be upheld. Hunt v Deming, 375 Mich. 581; 134 NW2d 662 (1965). No manifest injustice occurred here.

The limitation provision in the insurance policy, limiting the time for bringing a suit, is reasonable and therefore valid. See Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich. 588, 592; 242 NW2d 396 (1976). The jury specifically rejected plaintiffs' claim that the company waived the limitations clause.

During jury deliberations the jury asked two questions concerning the issue of contributory negligence. The defendants protest the judge's response to the second jury question, claiming that his answers to identical questions were inconsistent. The second question, to which the judge answered negatively, inquired:

"Would a theory of contributory negligence on the part of the plaintiff in the first trial bar awarding any damages for defendants in the trial?"

The judge informed the attorneys:

"Well, I'm going to take the question in its literal sense. I'm not going to presuppose what they're referring to or anything of that kind. * * * The court's answer is, no. Your decision is to be based solely upon the evidence presented in the present case and the court's previous instructions."

The theory of a breach of an implied warranty was also at issue in the trial. A finding of contributory negligence would not preclude damages being assessed against defendant Continental Insurance Company on the theory of a breach of an implied warranty. Therefore, the trial judge's ruling was proper.

Defendant Continental Insurance Company next contends that the plaintiffs' claim of economic interference erroneously was submitted to the jury. Plaintiffs counter that the instruction presented clearly stated the applicable law and was properly before the jury.

A trial court is required to give the jury instructions that a party requests if they are applicable and accurately state the law. Richman v City of Berkley, 84 Mich. App. 258; 269 NW2d 555 (1978). Evidence was presented during the trial which could support a finding that Continental Insurance Company did interfere with the plaintiffs' rights. Therefore, it was an issue properly before the jury. We find no fault with the exercise of the trial judge's discretion in presenting the instruction to the jury.

The instruction the trial judge gave to the jury on the issue of the existence of a conflict of interest is protested by defendant Continental Insurance Company as being misleading, because the trial judge did grant a directed verdict in defendant's favor on this precise theory. Plaintiffs retort that the instruction merely outlined the duties imposed on the insurance carrier, and in no way prejudiced Continental's case.

The instruction at issue provided:

"Now, you are further instructed that where an insurance company assumes the duty of defending claims against its insured, the company is deemed to have a fiduciary duty to its insured and, therefore, where a conflict of interest arises between the insurer, as agent, and the insured, as principal, conduct of the company will be subject to closer scrutiny than that of an ordinary agent because of the adverse interests."

Although the instruction may not have been completely applicable, any error was harmless.

Lastly, defendants Boynton Engineers, Inc., and Continental Insurance Company contend that the doctrine of estoppel precluded the trial of this case because the parties had arrived upon a settlement. We reject defendants' argument that no cognizable claims were presented at trial. The law of Michigan recognizes the tort of interference with economic relations. Wilkerson v Carlo, 101 Mich. App. 629, 632; 300 NW2d 658 (1980). Moreover, Choi's misplacement of the parts did appear to be negligent.

For the above reasons, the case is reversed and remanded for a new trial.

BEASLEY, P.J., concurred.

M.B. BREIGHNER, J. (dissenting).

I respectfully dissent.

I am convinced that Judge Condon gave proper instructions to the jury. Plaintiffs presented their case on the theory that defendants' conduct in the underlying suit maximized defendants' chances of victory in that case. The conduct complained of lead plaintiffs to settle the underlying products liability-negligence claim for an amount less than a verdict which would have otherwise been returned.

Because the underlying case was settled, the trial court properly refused the defense request to instruct the jury concerning the liability or liabilities of those eight defendants, along with the defenses interposed by them. There was evidence before the jury as to possible verdict ranges in the underlying case. The court told the jurors that the jury in the underlying suit "would have been properly instructed as to plaintiffs' theories of recovery, the damages and the defendants' affirmative defenses and denial of any liability". This was a proper instruction.

The instruction as given deprived the parties of nothing and added nothing to the jury's burden. Plaintiffs' case went to the jury on three theories: negligence, loss of economic advantage, and conflict of interest. Plaintiffs had to prove that defendants' tortious activity forced a settlement at a lower amount than a jury might have awarded. The issue before the jury was not the liability, if any, of the defendants in the underlying suit.

In this Court's only real look at the problem presented here, Basic Foods Industries, Inc v Grant, 107 Mich. App. 685; 310 NW2d 26 (1981), the Court concerned itself with the quantum of proof needed to sustain a verdict in a malpractice action against an attorney. In doing so, it limited the "suit within a suit" requirement, as a matter of sound public policy, to a limited number of situations where trial of the first case in the second case could not be avoided. In Basic Foods Industries, Inc, we said that a plaintiff in such an action need not prove that he would have prevailed completely in the former suit to sustain his burden of proof, rather the plaintiff must show only that the tortfeasor was negligent, or guilty of some other tortious conduct, and that the conduct complained of increased, or, as in this case, decreased, the amount of a jury award.

I believe my position is supported by looking at the jury verdict form that was returned by this jury. The jury's answers to questions one and two clearly indicate that they found that the plaintiffs would not have prevailed at trial because of the missing copper tubing. Thus, any instruction that the trial court would have given as it concerned the eight defendants in the former proceedings would have been irrelevant. While it is true that this jury was asked to evaluate the plaintiffs' case against those eight defendants and to say whether plaintiffs would or would not have been successful, depending on the presence or absence of the one key piece of evidence, the issue here was the tortious conduct of the defendants in this case and the damages to be awarded as a result of that conduct.

I agree that plaintiffs should have been allowed to call as an adverse party and to cross-examine the attorney who represented Northern Propane Gas Company at the underlying proceedings. However, the trial court's error was harmless beyond a reasonable doubt. The record reflects that this attorney was on the witness stand for a great length of time. No attempt was made to impeach this witness under MRE 607. Under these circumstances, and especially when impeachment was not even attempted, no reversible error could result from the trial court's ruling.

I conclude that the verdict was not legally and logically inconsistent. I do not agree with my brothers that the jury found Continental Insurance Company liable for negligently selecting Choi as an engineering expert. This may have been the jury's finding, but, also, it may not have been its finding. The jury's inquiry regarding negligence of Continental Insurance Company was not limited solely to the contention that this defendant was negligent in selecting an unqualified expert witness. The jury was also advised of plaintiff's other allegations. Additionally, plaintiffs claimed that Continental refused to provide a copy of the report of Mr. Choi to plaintiffs' attorney, and that this caused delay which in turn resulted in plaintiffs' loss. Moreover, plaintiffs alleged that Continental wrongfully dealt with the conflicting interest of plaintiffs and Northern Propane and that Continental negligently made representations to the trial court at the hearing on the motions to produce.

I would affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.