GREAT AMERICAN INS COMPANIES V GARAN LUCOW MILLER SEWARD COOPER
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STATE OF MICHIGAN
COURT OF APPEALS
GREAT AMERICAN INSURANCE COMPANIES,
UNPUBLISHED
Plaintiff-Appellant/Cross-Appellee,
v
GARAN, LUCOW, MILLER, SEWARD, COOPER
& BECKER, P.C., and THOMAS F. MYERS,
No. 203014
Oakland Circuit Court
LC No. 95-504656 NM
Defendants-Appellees/
Cross-Appellants.
Before: Griffin, P.J., and Hood and Talbot, JJ.
GRIFFIN, P.J. (concurring).
I concur in the result. I would affirm on the basis that plaintiff failed to sustain its burden of
establishing a genuine issue of material fact regarding its claimed legal malpractice cause of action.
MCR 2.116(G)(4).
In the underlying action, it is clear that the stipulation made by defendant Myers pertained to the
jury’s verdict form, only:
Mr. Myers (defense counsel): No, I have a verdict form of damages,
separate -- next page, your Honor.
The Court: I’m looking at it.
***
Mr. Asher (plaintiff’s counsel): Well, your Honor, he wants to break it down
into economic, non-economic, past and future damages.
The Court: I don’t see that. Do you have that here? I thought you were
waiving all of this?
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Mr. Myers: No. We are not doing any present values or any of that. We
agreed to that. [Emphasis added.]
Later, the trial judge emphasized that it was the court’s u
nderstanding that the court, not the
jury, was to reduce future damages, if any, to present value:
The Court: All right. Well, there are a couple issues I can deal with today and
a couple issues that we can’t deal with.
***
With regard to the future damages, I think that I can address that. It’s very
clear that that was left for me and you have to look at the transcript and read it in the
context of what was going on; but it was my belief that the jury was not to address it
- that was -- and that it was left for me to decide and it doesn’t mean that just
because the jury -- it was taken out of the jury instructions does not mean that -- I don’t
mean future damages -- the reduction to present cash value -- that that was something I
was to do; so there’s no doubt in my mind and that’s not an issue anymore. [Emphasis
added.]
Importantly, both attorneys in the underlying case agreed that, based on the record evidence,
the trial judge was fully capable of reducing future damages to present value. H
owever, the parties
disagreed on the methodology to do so. Further, in the appeal of the present case, plaintiff, Great
American Insurance Companies, as cross-appellee, makes the following admission:
. . . plaintiff acknowledges that it is possible to reduce damages to present value
under the circumstances presented by this case.
The present case arose only because the trial judge in the underlying action breached her
assumed duty to reduce future damages to present value. In an order dated October 9, 1992, the trial
judge “exercised her discretion” by deciding not to do so. The court reasoned as follows:
Based upon the foregoing and based upon the fact that it is this court’s function
to see that plaintiff is completely compensated for his injuries and that justice is served,
this court is exercising its discretion and reconsidering its original ruling on the present
value issue. This court hereby finds that the verdict will not be reduced to present value.
Before an appeal could be heard, the underlying case was settled by plaintiff thereby preventing
any appellate review of the actions of the trial judge.
In my view, there is no genuine issue of material fact that the windfall damages at issue were
caused solely by the error of the trial judge. In failing to fulfill her assumed duty to reduce future
damages to present value, the trial judge created the damages which are the subject of the present
action. On this record, I find no evidence whatsoever to support a cause of action of alleged l gal
e
malpractice by defendant Myers.
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For this reason, I concur with the majority in affirming the summary disposition granted in favor
of defendants.
/s/ Richard Allen Griffin
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