KATHRYN SCHRAM V JEFFREY HELMBOLDT JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
KATHRYN SCHRAM, Next Friend of TOBY
SCHRAM, a Protected Person,
UNPUBLISHED
July 6, 1999
Plaintiff-Appellee,
v
No. 205707
Antrim Circuit Court
LC No. 96-006916 NI
JEFFREY HELMBOLDT, JR.,
Defendant-Appellant.
Before: Griffin, P.J., and McDonald and White, JJ.
PER CURIAM.
Defendant appeals by right from a judgment entered in favor of plaintiff based on damages
awarded by a jury after the trial court entered a default judgment in favor of plaintiff on the issue of
liability. Defendant challenges the trial court’s denial of his motion for summary disposition and the
court’s entry of the default judgment on liability as a sanction for defendant’s conduct with regard to
discovery. We affirm in part and reverse in part.
I
Plaintiff sued defendant for non-economic damages and excess wage loss under the no-fault
automobile insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., after her son, Toby
Schram, suffered brain damage and other injuries as the result of an accident in which the snowmobile
he was driving collided with defendant's parked automobile.
On the evening of January 8, 1996, defendant was traveling southbound on highway M-66 near
Mancelona in his 1989 Ford Probe, heading from his home in East Jordan toward his sister’s home in
Mancelona, apparently because his sister was going to babysit for his young son while he worked from
10:00 p.m. to 6:00 a.m. Defendant may or may not have been driving the car, and another adult may or
may not have been traveling with him.1
During the trip, the car suddenly stalled and would not restart. The driver steered the car to the
side of the road, and all of the car’s occupants walked to a nearby McDonald’s restaurant, where one
-1
of them telephoned defendant's sister, Jessica, for assistance. Jessica’s boyfriend at the time, Troy,
came to their aid and transported them to Jessica’s house. Approximately one-half hour later,
defendant, who had obtained the use of a substitute vehicle to get to work, returned to the stalled
Probe. With the help of either his wife, Lynnette Helmboldt, or Troy, he pushed the car further to the
side of the road. Defendant asserts that in the car’s final resting place, its entire length was two to three
feet to the right of the white fog line in the road. He indicated that the front bumper was touching a
snow bank on the side of the road and that the gap between the rear bumper and the snow bank was
only wide enough for him to pass through it sideways. Lynnette, who claimed to have returned to the
car with defendant, corroborated defendant's deposition testimony regarding the final placement of the
car. Both defendant and Lynnette admitted that they did not put any flashers, reflectors, flags, or other
warning signs on the Probe. Troy, who defendant said had accompanied him to the car and had helped
him push it further to the side of the road, was not deposed, did not testify at trial, and did not provide
any affidavits in this case.
Sometime between 1:00 a.m. and 5:37 a.m. the next morning, Schram was driving a
snowmobile southbound on the shoulder of M-66. Apparently, he did not see defendant's car until he
was almost upon it and crashed into the rear of the Probe; the snowmobile ended up underneath the
car. Jeffrey Wynkoop and Christopher Ash, at that time both deputies with the Antrim County Sheriff’s
Department, were dispatched to the accident scene, and both opined, based on the severity of the
accident and the position of the vehicles, that Schram had been speeding. Schram was unable to confirm
or contest this conclusion, since as a result of his injuries he was unable to remember the accident.2
On July 15, 1997, right before trial was to begin, plaintiff's attorney informed the court that he
had recently learned of perjury committed by defendant and his wife. Apparently, defendant had
disclosed to an unnamed third party that Lynnette had not been present during the events surrounding
the Probe’s breakdown and that she had been at work that evening. This contradicted testimony given
by Lynnette during her deposition. Specifically, even though defendant, in his deposition, indicated that
Troy had returned with him to the Probe and had helped to push it to the side, Lynnette, who listened to
defendant's deposition and testified immediately afterward, said, “[a]nd it wasn’t Troy who took him to
work; it was me, and I was the one that helped him push the car.” Lynnette further testified that she
could not remember what shift she was working that evening, and that after she and defendant returned
to the disabled car, she steered while defendant pushed the car further to the side of the road.
Defendant had earlier testified that he steered while Troy pushed the car.
Defendant himself made reference to Lynnette being present on the evening in question when he
said, “the whole family” walked to McDonald’s after the car stalled. Although he did not directly state
that Lynnette had been driving the car that evening, he did indicate that in general he did not drive the
Probe because he was not listed on its insurance policy. Further, he answered “yes” to the following
deposition question:
In any event, you’re driving along the road – I don’t mean you’re physically driving, but
you’re riding along the road and the car dies. You pulled off onto the shoulder – or
Lynnette pulled off onto the shoulder?
-2
Because of the discrepancy between Lynnette’s work schedule and her deposition testimony,
and because of an interrogatory answer implying that Lynnette was present that night,3 plaintiff
concluded that defendant and Lynnette had committed perjury, and she asked the court to enter a
default judgment regarding liability as a sanction for the misconduct. In response, defendant argued,
among other things, that a default judgment was unwarranted because the allegedly perjured testimony
was immaterial to the case.
The court asked defendant and his wife to testify regarding the allegations of perjury, but
defendant asserted his Fifth Amendment right against self-incrimination, and Lynnette, after being
advised of her Fifth Amendment rights, indicated that she wanted to consult with an attorney. Plaintiff
then called Sandra Summerville, the business manager of Summertree Residential Centers, Lynnette’s
employer at the time, to testify. Summerville brought with her Lynnette’s employment records, including
a time sheet that indicated that she had worked from 2:00 p.m. to 10:00 p.m. on January 8, 1996.
Although Summerville could not testify with certainty that Lynnette’s signature on the January 8 time
sheet was authentic, no evidence to the contrary was presented. Moreover, Summerville indicated that
all absentees were required to have an “absentee form” in their files, and no such form existed for
Lynnette for January 8.
Subsequently, the court agreed that defendant's conduct in countenancing his wife’s perjury and
in making discovery responses that were misleading warranted the entry of a default judgment on the
issue of liability, including the issue of comparative negligence and proximate cause. The court then
granted a directed verdict for plaintiff on the issue whether Schram suffered a serious impairment of
body function, a ruling that defendant does not contest. The court then proceeded with a jury trial on
damages.
We review a trial court’s decision to grant a default judgment because of discovery violations
for an abuse of discretion. Thorne v Bell, 206 Mich App 625, 632-633; 522 NW2d 711 (1994).
The trial court abused its discretion in granting plaintiff a default judgment based on defendant's
misconduct, since the misconduct was not severe and did not unduly prejudice plaintiff. The trial court’s
reasons for granting plaintiff's request for a default judgment were that (1) Lynnette had indeed been at
work during the evening in question, since her employment time sheet showed this and no evidence to
the contrary was presented; (2) it was thus evident that she lied during her deposition when she testified
that she drove the car that evening and helped move it to the side of the road; (3) defendant answered
an interrogatory falsely when he indicated that Lynnette was present that night; (4) even though the false
interrogatory alone might not have been enough to warrant a default, defendant also lied in his
deposition when he said that the “whole family” walked to McDonald’s, since the whole family must
include Lynnette; (5) even though he was present during his wife’s deposition, defendant made no
attempt to correct her false testimony, which was material in that it related to the final resting position of
the Probe ; (6) although defendant's perjury in itself might not merit a sanction, defendant's countenance
of his wife’s perjury did; and (7) plaintiff's case preparation was prejudiced by the misconduct, and
although an adjournment might fix the prejudice, an adjournment would “prejudice . . . everybody
involved, not the least of which is the County of Antrim.”
-3
A trial court has discretion, under MCR 2.313(B)(2)(c), to grant a default judgment for failure
to comply with discovery. Here, if defendant did indeed commit or countenance perjury in depositions,
such misconduct could be deemed a failure to properly comply with discovery. In Thorne v Bell, 206
Mich App 625, 633; 522 NW2d 711 (1994), this Court stated that “[t]he sanction of a default
judgment should be used only when there has been a flagrant and wanton refusal to facilitate discovery.”
In the instant case, although the evidence indicates that defendant’s wife committed other misconduct,
the only misconduct that could potentially be attributed to defendant were his allegedly improper
interrogatory answer, his statement that the “whole family” walked to McDonald’s, and his alleged
countenance of his wife’s perjury. The interrogatory answer should not be held against defendant, since
it was signed only by his attorney and since it truthfully indicated what Lynnette’s testimony was
expected to be. It is likely that defendant's attorney interviewed Lynnette and prepared the
interrogatory based on that interview; it cannot be assumed that defendant encouraged or would have
agreed with her expected testimony.
By contrast, defendant’s statement that “the whole family” walked to McDonald’s should be
held against him, since Lynnette was a member of his family and the statement therefore indicates that
Lynnette was with him when the car stalled. However, even though reprehensible, this statement did not
warrant a default judgment, since it did not prejudice plaintiff. Thorne, supra, 206 Mich App 633,
indicates that prejudice to the opposing party should be considered when deciding whether a default
judgment based on discovery violations should be granted. Who was present in the Probe at the time it
stalled was of no consequence to plaintiff's claim; the information plaintiff required pertained to the final
resting position of the Probe, after it had been pushed further off the road. As to this issue, although
Lynette testified that she helped move the Probe, defendant testified that Troy had helped him. Given
defendant’s testimony, plaintiff cannot hold defendant solely responsible for her decision not to depose
Troy.
The remaining behavior to consider, then, is defendant's alleged countenance of Lynnette’s
perjury. During his deposition, defendant testified that he returned to the Probe with Troy and that
together they pushed the car to its final resting position. He gave no indication that Lynnette was
present at that time. Subsequently, Lynnette testified that it was she who returned to the car with
defendant and helped him move it. That defendant did not come forth and reassert his statement that he
had been with Troy does not necessarily mean that he was willfully countenancing his wife’s perjury. He
may have been afraid of incriminating his wife or he may have been intimidated by the formal nature of
the depositions. He may not even have realized that he was allowed to speak during someone else’s
deposition. For the trial court to have granted a default judgment on the basis of this speculative
countenance constituted an abuse of discretion.
It is possible that the trial court’s ruling was based not on a discovery violation but merely on the
inherent nature of defendant's misconduct. Trial courts are permitted to grant default judgments for
“flagrant misconduct” by parties to a case. Cummings v Wayne Co, 210 Mich App 249, 251-252;
533 NW2d 13 (1995). In Cummings, the defendant was granted a default judgment after the plaintiff
threatened and vandalized potential defense witnesses. Id., 251. In determining that the default was
warranted, this Court emphasized the “gravity of [the] plaintiff's misconduct” and the prejudice to the
-4
defendant, finding that the misconduct had “permanently deprived the court of the opportunity to hear
the testimony of witnesses who would be able to testify openly and without fear.” Id., 253. Here, as
indicated earlier, the gravity of defendant's own conduct, as opposed to his wife’s, was not severe.
Moreover, the prejudice to plaintiff was slight, since defendant had testified that Troy was the person
who helped him move the car.
Next, we reject defendant’s claim that the trial court erred in denying defendant’s motion for
summary disposition. The court rejected defendant’s argument that the Supreme Court’s decision in
Wills v State Farm Ins Co, 437 Mich 205, 208; 468 NW2d 511 (1991), required that plaintiff’s
negligence action be dismissed, and concluded that there were genuine issues of fact regarding whether
defendant was negligent in parking his vehicle on the shoulder of the highway.
We review a trial court’s grant or denial of summary disposition pursuant to MCR
2.116(C)(10), based on a finding that there is no genuine issue of material fact, de novo. Pinckney
Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995).
Like the trial court, we look at the entire record and, viewing the evidence in favor of the nonmoving
party, decide if there exists an issue about which reasonable minds might differ. Id.
Defendant argues that it was not reasonably foreseeable, as a matter of law, that a snowmobiler
would be traveling along the shoulder of the road where defendant left his vehicle, since snowmobiles
are prohibited by state law from traveling on the shoulders of state highways.4 In Wills, supra, the
plaintiff's decedent was driving a snowmobile on the shoulder of a state highway when he collided with
an empty, unlit, parked automobile and was killed. The automobile was off the roadway, but it was
facing oncoming traffic, so that vehicles approaching it faced the front of the car and could not see the
reflectorized surfaces on the rear. Id. at 208, 214-215. The plaintiff sued her decedent’s no-fault
automobile insurance carrier, seeking survivors benefits. Id. at 208. No-fault benefits are payable for
“accidental bodily injury arising out of the ownership, maintenance or use of a motor vehicle as a motor
vehicle.” Because snowmobile are not motor vehicles, the plaintiff was required to show that the
parked vehicle was in use as a motor vehicle, a determination that is governed by MCL 500.3106;
MSA 24.13106. The plaintiff relied on section 3106(1)(a), which allows recovery when the vehicle
“was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.” Id. at
209. The plaintiff attempted to establish the unreasonableness of the parking by showing that the vehicle
was parked in violation of the lighted-vehicle statute,5 and by pointing to the inability of the snowmobile
driver to see reflectors on the rear of the vehicle since the vehicle was facing the oncoming traffic. Id. at
214.
The Supreme Court held that where the facts are undisputed, the determination whether a motor
vehicle is parked in such a way as to create an unreasonable risk of bodily injury within the meaning of
section 3106(1)(a) is an issue of statutory construction to be determined by the court. In analyzing the
specific case at bar, the Court concluded that because the snowmobile driver was not in the class of
plaintiffs sought to be protected by the lighted-vehicle statute, (because the snowmobile driver was
unlawfully on the shoulder), the statutory purpose doctrine was not fulfilled under the facts presented,
and a violation of the statute, even if proved, would not establish that the motor vehicle was
unreasonably parked for purposes of determining liability for no-fault benefits. In addressing the
-5
plaintiff’s claim that the parked vehicle presented an unreasonable risk because of the inability to see
reflectorized surfaces, the Court stated
that it is not unreasonable to park a vehicle without regard to the protection of persons
who may not legally be on the shoulder where the vehicle is parked. . . .[Id. at 214
215.]
While the underlying facts in the instant case are similar t those in Wills, and the quoted
o
language can be read as rejecting the instant plaintiff’s claims as a matter of law, we conclude that the
trial court correctly determined that Wills was decided and the quoted statement was made in the
context of a first-party no-fault action involving the interpretation of a statutory provision. The lead
opinion stated:
Use of the phrase “unreasonable risk” in the parking exception appears, at
first blush, to create a question of fact.10 But where the facts are undisputed and the
complainant is relying on a violation of a statute to establish that unreasonableness, it is a
question of law for the court. . .
_________________________________________________________________
10
While we recognize that “unreasonableness” in the general, negligence sense is a
question for the jury, the statutory concept here, assuming undisputed facts, is a
question of law in the first instance.
__________________________________________________________________
Thus, we do not understand Willis to address the common-law negligence liability of a motorist,
but only the statutory provision allowing the recovery of no-fault benefits where the parked vehicle was
parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
Affirmed in part, reversed in part and remanded for proceeding consistent with this opinion. No
costs to either side. We do not retain jurisdiction.
/s/ Richard A. Griffin
/s/ Gary R. McDonald
/s/ Helene N. White
1
The uncertainty regarding who accompanied plaintiff and who was driving the car relates to plaintiff’s
claim of misconduct and perjury and will be explained further infra.
2
As a result of the collision, Schram suffered a broken thigh bone, a fractured jaw, a collapsed lung,
and a severe brain injury. He had to relearn basic activities like standing and walking, he experienced
-6
changes in his personality, and, according to one expert, he will permanently suffer from speech and
memory impairments.
3
The record does not contain a copy of the interrogatory in question. However, the trial court
summarized it in its ruling:
Now, the plaintiffs [sic] sent interrogatory requests with respect to I guess the standard
interrogatories about each person who was listed to testify as a witness, what the
substance of their testimony would be. And the defendant's response was that Lynnette
Helmboldt, who is the wife of the defendant, that she was present when the vehicle
became disabled. . . . It says that, this is defendant's answer, saying that she, Lynnette,
who was not a party, would testify that she was present when the vehicle was disabled,
and the vehicle was completely off the traveled portion of the road when it was left.
The trial court further indicated that defendant's attorney, but not defendant, had signed the interrogatory
answers.
4
MCL 324.82119; MSA 13A.82119 indicates that snowmobiles may operate on highway shoulders
only to cross bridges or culverts.
5
MCL 257.694; MSA 9.2394.
-7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
