GILBERT PEREZ V BIG M PAPERBOARD INC
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STATE OF MICHIGAN
COURT OF APPEALS
GILBERT PEREZ,
UNPUBLISHED
August 28, 2001
Plaintiff-Appellee,
and
TRAVELERS INSURANCE COMPANY,
Intervening Plaintiff-Appellee,
V
No. 221010
Lenawee Circuit Court
LC No. 93-005782-NO
BLACK CLAWSON COMPANY,
Defendant/Cross-Plaintiff/ThirdParty Plaintiff,
and
SORENSON PAPERBOARD COMPANY,
Defendant/Cross-Defendant,
and
BIG M PAPERBOARD, INC.,
Defendant-Appellant,
and
MERRITT SORENSON and SIMPLEX PAPER
COMPANY,
Third-Party Defendants.
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GILBERT PEREZ,
Plaintiff-Appellee,
and
TRAVELERS INSURANCE COMPANY,
Intervening Plaintiff-Appellee,
V
No. 221075
Lenawee Circuit Court
LC No. 94-006317-NO
BIG M PAPERBOARD, INC.,
Defendant-Appellant,
and
SIMPLEX PAPER COMPANY, TORONTO
PAPERBOARD, INC., and SORENSON
PAPERBOARD COMPANY,
Defendants.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
Defendant, Big M Paperboard, Inc.,1 appeals as of right from an order entering judgment
in favor of plaintiff, Gilbert Perez, following a jury trial on plaintiff’s negligence claim. The jury
awarded plaintiff $195,000 for past economic damages, $5,000 for past non-economic damages,
$61,000 for future medical expenses, $90,000 for future wage loss, and $90,000 for future noneconomic damages. The total damages awarded by the jurors were $441,000. After subtracting
$227,500 that plaintiff received in previous settlements, the trial court adjusted the remaining
1
Defendant, Big M Paperboard, Inc., and plaintiff, Gilbert Perez, are the only parties
participating in this appeal, and hereinafter will be referred to as defendant and plaintiff
respectively.
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damages to present value and judgment was entered in favor of plaintiff and against defendant
for $139,843.44 plus costs. We affirm the judgment for plaintiff, but remand to the trial court for
entry of an amended order of judgment consistent with this opinion.
This case arose from plaintiff’s workplace injury on a paper-cutting and rewinding
machine (“machine”), which was previously owned and modified by defendant. Although
defendant no longer owned the machine or the paper mill where the machine was located at the
time of plaintiff’s injury, and plaintiff was employed by the successive owner of the machine and
mill at the time of his injury, plaintiff alleged that his injuries resulted from the modifications
made to the machine by defendant.
Defendant first contends that the trial court abused its discretion when it permitted the
introduction of expert testimony on the federal occupational safety and health act standards
(“OSHA”), 29 USC 651 et seq., and the Michigan occupational safety and health act standards
(“MIOSHA”), MCL 408.1001 et seq., pertaining to paper-cutting machines. We disagree. We
review a trial court’s decision to admit evidence for an abuse of discretion. Chmielewski v
Xermac, Inc, 457 Mich 593, 613-614; 580 NW2d 817 (1998). We will find an abuse of
discretion “‘only if an unprejudiced person, considering the facts on which the trial court acted,
would say that there was no justification or excuse for the ruling made.’” Berryman v K Mart
Corp, 193 Mich App 88, 98; 483 NW2d 642 (1992), quoting Gore v Raines & Block, 189 Mich
App 729, 737; 473 NW2d 813 (1991).
Evidence is relevant when it “‘has any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would
be without the evidence.’” MRE 401; Dep’t of Transportation v Van Elslander, 460 Mich 127,
129; 594 NW2d 841 (1999), quoting Yates v Keane, 184 Mich App 80, 82; 457 NW2d 693
(1990). The violation of safety regulations, such as OSHA and MIOSHA, may be admissible as
evidence of the standard of care. Co-Jo, Inc v Strand, 226 Mich App 108, 115; 572 NW2d 251
(1998), citing Beals v Walker, 416 Mich 469, 481; 331 NW2d 700 (1982).
In this case, plaintiff had to prove the following elements by a preponderance of the
evidence: (1) defendant owed plaintiff a duty; (2) defendant breached that duty; (3) defendant’s
breach of this duty caused plaintiff’s injuries; and (4) plaintiff suffered damages as a result of
defendant’s breach of this duty. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17
(2000). Plaintiff’s theory of negligence was that defendant’s modifications to the machine were
unreasonably dangerous and caused plaintiff’s injuries.
Admiral Ben Lehman, a consulting engineer and a former Navy Admiral, who offered
expert testimony on the machine, testified to the American National Standards Institute (“ANSI”)
safety standards governing the machine. Lehman further testified that the OSHA and MIOSHA
standards applicable to slitter knives were identical to the ANSI standard.
The safety standard regulations were relevant to aid the jurors in determining what
standard of care defendant owed plaintiff and whether defendant breached the standard of care.
Specifically, OSHA and MIOSHA regulations were relevant to show how a reasonably prudent
mill owner would have modified a paper-cutting machine. Accordingly, we are satisfied that the
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trial court did not abuse its discretion when it admitted testimony on the OSHA and MIOSHA
regulations.
Defendant next contends that the trial court erred in adopting plaintiff’s interpretation of
MCL 600.6306 because MCL 600.6306 unambiguously required the trial court to reduce the
future damages to present cash value before subtracting the previous settlements received by
plaintiff. We agree. Questions of statutory interpretation are questions of law which we review
de novo. Cheron, Inc v Don Jones, Inc, 244 Mich App 212, 215-216; 625 NW2d 93 (2000).
The relevant version of MCL 600.63062 states in pertinent part:
Sec. 6306. (1) After a verdict rendered by a trier of fact in favor of a plaintiff, an
order of judgment shall be entered by the court. The order of judgment shall be
entered against each defendant, including a third-party defendant, in the following
order and in the following judgment amounts:
***
(c) All future economic damages, less medical and other health care costs, and
less collateral source payments determined to be collectible under section 6303(5)
reduced to gross present cash value.
(d) All future medical and other health care costs reduced to gross present cash
value.
(e) All future noneconomic damages reduced to gross present cash value.
***
(3) If there is an individual who was released from liability pursuant to section
2925d, the total judgment amount shall be reduced, as provided in subsection (5),
by an amount equal to the amount of the settlement between the plaintiff and that
individual.
(4) If the plaintiff was assigned a percentage of fault pursuant to section 6304, the
total judgment amount shall be reduced, as provided in subsection (5), by an
amount equal to the percentage of plaintiff's fault. (5) When reducing the
judgment amount as provided in subsections (3) and (4), the court shall determine
the ratio of total past damages to total future damages and shall allocate the
amounts to be deducted proportionally between the past and future damages.
The relevant version of MCL 600.2925d 3 states in pertinent part:
2
MCL 600.6306 was amended in 1995, and the amendments became effective in March 1996.
PA 1995, No 161, § 1. Plaintiff’s case against defendant was filed in October 1994; therefore,
the pre-1995 version of MCL 600.6306 governs this case.
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When a release or a covenant not to sue or not to enforce judgment is
given in good faith to 1 or 2 or more persons liable in tort for the same injury or
same wrongful death:
***
(b) It reduces the claim against the other tortfeasors to the extent of any amount
stipulated by the release or the covenant or to the extent of the amount of
consideration paid for it, whichever amount is greater.
When reviewing questions of statutory construction, our primary purpose is to ascertain and give
effect to the Legislature’s intent. Nawrocki v Macomb Co Road Comm, 463 Mich 143, 159; 615
NW2d 711 (2000). We must first examine the plain language of the statute. Id. When the plain
language of the statute is clear, judicial construction is neither permitted nor required. Sun Valley
Foods Co v Ward, 460 Mich 230, 236; 596 NW3d 119 (1999). The Legislature’s use of the word
“‘shall’ indicates that the required action is mandatory, not permissive, unless this interpretation
‘would clearly frustrate legislative intent as evidenced by other statutory language or by reading
the statute as a whole.’” Kosmyna v Botsford Community Hospital, 238 Mich App 694, 699; 607
NW2d 134 (2000), quoting Browder v Int'l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668
(1982).
By its express terms, MCL 600.6306(1)(c)-(e) mandates that a trial court shall first reduce
any future damages awarded by the trier of fact to gross present value before reducing the amount
of judgment by the amount of the settlement the plaintiff received from other parties as directed
in (3) and before performing the proportionate reduction between future and past damages
specified in (5). Because the plain language of MCL 600.6306 is clear and unambiguous, further
judicial construction is neither necessary nor permitted. Sun Valley Foods, supra at 236.
Moreover, the use of the word “shall” in MCL 600.6306 indicates that the trial court was
required to follow the order specified in the statute when entering an order of judgment for
plaintiff and that the trial court did not possess the discretion to adopt a different interpretation of
MCL 600.6306. Kosmyna, supra at 699. As such, we conclude that the trial court erred when it
found that MCL 600.6306 was ambiguous and conferred discretion upon it to determine when to
reduce the future damages to present cash value.
(…continued)
3
MCL 600.2925d was amended in 1995, and the amendments became effective in March 1996.
PA 1995, No 161, § 1. Plaintiff’s case against defendant was filed in October 1994; therefore,
the pre-1995 version of MCL 600.2925d governs this case.
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Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
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