JANICE SUE BURRIS V RICHARD LARGO DIAZ
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STATE OF MICHIGAN
COURT OF APPEALS
SUE JANICE BURRIS and WILBURN BURRIS,
UNPUBLISHED
November 5, 1999
Plaintiffs-Appellees,
v
No. 202857
Wayne Circuit Court
LC No. 94-416897 NI
RICHARD LARGO DIAZ and DELUXE CAB
COMPANY, INC. OF TAYLOR,
Defendants-Appellants,
and
DENISE DARLENE BURKE and SMART1,
Defendants.
Before: Zahra, P.J., and Saad and Collins, JJ.
PER CURIAM.
Defendants Richard Largo Diaz and Deluxe Cab Company, Inc. of Taylor (defendants) appeal
as of right from a post-judgment order allowing a personal insurance protection benefit setoff for wage
losses, which was entered after a jury returned a verdict in favor of plaintiff2 in the amount of $60,000.
We affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this
opinion.
This case arises from an automobile accident. Defendant Diaz was driving a taxicab on Eureka
Road and stopped in the far right lane to let out a passenger. A pickup truck stopped behind the cab,
and a van driven by plaintiff stopped behind the pickup truck. A SMART bus struck plaintiff’s van
from behind, causing a chain collision involving defendant Diaz’s taxicab, the pickup truck, plaintiff’s
van, and the SMART bus. The jury returned a verdict in favor of plaintiff. They found that defendant
Diaz was negligent and a proximate cause of plaintiff’s injuries and that those injuries resulted in serious
impairment of a bodily function. The jury awarded plaintiff $10,000 in non-economic damages to the
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date of trial, $30,000 in wage loss, and $20,000 in future damages. The jury found against plaintiff’s
husband on his derivative claims.
Defendants first argue on appeal that the trial court erred in instructing the jury that it could
award damages for plaintiff’s wage loss, when no evidence of any wage loss was ever before the jury,
and that the trial court further erred in failing to reduce the jury’s award of $30,000 for wage loss when
that award did not exceed the limitations established by the no-fault act. Plaintiff argues, however, that
even if it was error to instruct the jury on wage loss damages and to include a space for wage loss
damages on the verdict form, defendants cannot be heard to complain of an improper verdict that was
the result of instructions and a verdict form to which they stipulated. Therefore, plaintiff argues, if this
Court finds that the award for wage loss damages was erroneous, this Court should remand for a new
trial on damages alone.
The record indicates that defendants objected repeatedly to the issue of wage loss damages
going to the jury on the basis that no evidence to support such an award was ever before the jury.
Indeed, it was plaintiff who argued that the court should instruct on wage loss damages, and it was
plaintiff who suggested that, instead of instructing the jury with regard to no-fault benefits, the court
could, post-verdict, reduce any award of wage loss damages pursuant to the appropriate no-fault
limitations.3 Moreover, the record does not show that defendants stipulated to instructions regarding
wage loss or the verdict form. 4 Counsel for defendants later stated that, given the court’s decision that
the issue of wage loss was going to the jury, he did not object to the use of the language “wage loss
damages” instead of “economic damages” on the verdict form. However, he stated that he still
objected to the question of wage loss damages going to the jury in the first place.
It is error to instruct a jury on an issue not supported by the evidence. Strach v St John Hosp
Corp, 160 Mich App 251, 282; 408 NW2d 441 (1987). Here, although plaintiff presented evidence
that she was employed and that she had missed work as a result of the accident, the record does not
show that evidence concerning plaintiff’s wages was ever before the jury. Plaintiff argued for admission
of a letter stating plaintiff’s hourly wage and, after objection and argument by defendants, the court
stated that the letter was admitted. However, plaintiff elicited no testimony with regard to the wage
information in the letter. Further, after closing arguments, when the court asked counsel for both parties
to identify all exhibits they wanted marked, the letter was not included. Indeed, when discussing jury
instructions, the trial court acknowledged that there was no evidence concerning plaintiff’s wages before
the jury. The jury’s award of $30,000 for wage loss damages was, therefore, predicated on
speculation and conjecture. Moreover, the jury’s award of $30,000 fell far short of the limitations
established by Michigan’s no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. See Ouellette
v Kenealy, 424 Mich 83, 85-86; 378 NW2d 470 (1985) (wage loss resulting from an automobile
accident may be recovered in a tort action if the wage loss exceeds the daily, monthly, and three year
limitations set forth in MCL 500.3107; MSA 24.13107).5 Because there was no evidence before the
jury to support its $30,000 award for wage loss, let alone wage loss in excess of the statutory
maximums, we vacate that portion of the jury’s award.
Defendants next argue that the trial court erred in failing to set off the jury’s verdict by the
amount plaintiff received from SMART and Burke for settling her claims against them. We agree.
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Statutory interpretation is a question of law that we review de novo. Abbott v John E Green Co, 233
Mich App 194, 198; 592 NW2d 96 (1998). We review the trial court’s findings of fact for clear error.
Andrews v Pentwater Twp, 222 Mich App 491, 493; 563 NW2d 713 (1997).
As an initial matter, we find that the trial court clearly erred in concluding that the release signed
by plaintiff as part of her settlement with SMART and Burke did not cover all of plaintiff’s claims against
SMART and Burke. After reviewing the terms of the release, we conclude that it released SMART
and Burke from all claims arising out of the accident at issue in the present case. The release specifically
states that SMART and Burke were to be released from any claims set forth in plaintiff’s complaint or
that could have been set forth in the complaint. A review of plaintiff’s complaint reveals that plaintiff did
in fact claim that she had lost earnings and earning capacity. Further, the release specifically states that
SMART and Burke were to be released from any claim of loss of compensation that may accrue in the
future.
The plain language of MCL 600.2925d(b); MSA 27A.2925(4)(b) requires that an amount paid
for a release by one tortfeasor reduces an award rendered against other tortfeasors by the amount paid.
See Smith v Childs, 198 Mich App 94, 101; 497 NW2d 538 (1993). Although plaintiff contends that
defendants were not entitled to a setoff because MCL 600.2925d(b); MSA 27A.2925(4)(b) was
repealed by the Legislature, according to the the notes following the statute, the amendment repealing
MCL 600.2925d(b); MSA 27A.2925(4)(b) only applies to cases filed on or after the effective date of
March 28, 1996. Because plaintiff filed her complaint on May 26, 1994, nearly two years prior to the
effective date for the amendment to MCL 600.2925d; MSA 27A.2925(4), defendants were entitled to
the setoff. Accordingly, on remand, the trial court must set off the amount of the settlement against the
jury’s verdict, minus the award for wage loss.
Defendants next claim that the trial court erred in awarding plaintiff mediation sanctions. A trial
court’s decision to grant mediation sanctions is reviewed de novo by this Court. Braun v York
Properties, Inc, 230 Mich App 138, 149; 583 NW2d 503 (1998). MCR 2.403 sets forth the rules
concerning mediation. Pursuant to MCR 2.403(O), a defendant who rejects a mediation award must
pay the plaintiff’s actual costs, including attorney fees, unless the defendant improved its position with
regard to the mediation award by more than ten percent. McCarthy v Auto Club Ins Ass’n, 208 Mich
App 97, 102; 527 NW2d 524 (1994). Here, defendants rejected a mediation evaluation in the amount
of $40,000. Because the jury verdict was $60,000, the court concluded that defendants had not
improved their position and were, therefore, subject to mediation sanctions. However, when
determining whether an award of mediation sanctions is appropriate, the relevant verdict to be measured
against the mediation evaluation is the ultimate verdict left after appellate review. Hyde v Univ of
Michigan Bd of Regents, 226 Mich App 511, 526; 575 NW2d 36 (1997). Because we have vacated
the jury’s award of $30,000 for wage loss, the verdict in plaintiff’s favor, before adjustment to include
assessable costs and interest pursuant to MCR 2.403(O)(3), is $30,000. In order for defendants to
avoid mediation sanctions, the adjusted verdict must be less than $36,000. See MCR 2.403(O). On
remand, the trial court must determine the amount of the adjusted verdict and impose mediation
sanctions only if the adjusted verdict exceeds $36,000.6
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Defendants next argue that the trial court erred because it did not grant them offer of judgment
sanctions. Defendants argue that after setoffs, the adjusted verdict in this case is zero, which is less
favorable to plaintiff than defendants’ $2,500 offer to settle. Interpretation and application of court rules
is a question of law that this Court reviews de novo. McAuley v GMC, 457 Mich 513, 518; 578
NW2d 282 (1998); Gallagher v Keefe, 232 Mich App 363, 366; 591 NW2d 297 (1999). The
interpretation of a court rule is subject to the same principles applicable when interpreting a statute.
McAuley, supra; FMB-First Michigan Bank v Bailey, 232 Mich App 711, 725; 591 NW2d 676
(1998).
MCR 2.405(D) states in relevant part:
(D) Imposition of Costs Following Rejection of Offer. If an offer is rejected, costs are
payable as follows:
(1) If the adjusted verdict is more favorable to the offeror than the average
offer, the offeree must pay to the offeror the offeror’s actual costs incurred in the
prosecution or defense of the action.
(2) If the adjusted verdict is more favorable to the offeree than the average
offer, the offeror must pay to the offeree the offeree’s actual costs incurred in the
prosecution or defense of the action. However, an offeree who has not made a
counteroffer may not recover actual costs unless the offer was made less than 42 days
before trial.
The term “verdict,” as defined by MCR 2.405(A)(4), includes “(a) a jury verdict, (b) a judgment by the
court after a nonjury trial, (c) a judgment entered as a result of a ruling on a motion after rejection of the
offer of judgment.” An “adjusted verdict” is “the verdict plus interest and costs from the filing of the
complaint through the date of offer.” MCR 2.405(A)(5).
MCR 2.405 makes no mention of applying setoffs when calculating an adjusted verdict,
although it expressly provides that the applicable interest and costs are added. The maxim “expressio
unius est exclusio alterius,” the expression of one thing is the exclusion of another, means that the
express mention of one thing in a statute implies the exclusion of other similar things. Alcona Co v
Wolverine Environmental Production, Inc, 233 Mich App 238, 247; 590 NW2d 586 (1998).
Because MCR 2.405 expressly allows for a verdict to be adjusted by interest and costs, but does not
mention setoffs, we conclude that the “adjusted verdict” does not include setoffs. Accordingly, when
determining whether the trial court erred in denying defendants offer of judgment sanctions, we do not
take into consideration the setoff required by MCL 600.2925d(b); MSA 27A.2925(4)(b). Thus, even
after the jury’s wage loss award is deducted, the adjusted verdict in this case clearly exceeds
defendants’ $2,500 offer of judgment. Therefore, the trial court did not err in denying defendants offer
of judgment sanctions.
Defendants’ next claim is that the trial court erred in allowing Sergeant Dennis David to testify
that, in his opinion, when defendant Diaz stopped to let a passenger out of his taxicab, he was in
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violation of an ordinance prohibiting taxicabs from stopping in the middle of the road. Defendants
contend that David should not have been allowed to testify since he was not listed as an expert witness,
and that because he was allowed to testify, the trial court erred in not allowing defendants to call a
rebuttal expert witness. We disagree. We review a trial court’s evidentiary rulings for an abuse of
discretion. Allen v Owens-Corning Fiberglas, 225 Mich App 397, 401; 571 NW2d 530 (1997).
An abuse of discretion occurs when the result is so palpably and grossly violative of fact and logic that it
evidences perversity of will or the exercise of passion or bias rather than the exercise of discretion. Id.
Defendants’ argument hinges on their contention that David was admitted as an expert witness.
However, our review of the trial transcript reveals that David was properly allowed to testify about his
opinions, pursuant to MRE 701, as a lay witness. Therefore, he did not need to be listed as an expert
witness. Further, the trial court did not abuse its discretion in failing to allow defendants to call an expert
rebuttal witness because the scope of rebuttal in a civil case is within the trial court’s discretion, and
there was no expert testimony to rebut. Taylor v Blue Cross & Blue Shield of Michigan, 205 Mich
App 644, 655; 517 NW2d 864 (1994).
The final issue raised by defendants on appeal is that the trial court erred in refusing to order a
court officer to return cash seized from defendants. Again, statutory interpretation is a question of law
which this Court reviews de novo. Abbott, supra.
After the conclusion of trial in this case, plaintiff obtained an ex parte order appointing Nathaniel
Helton as a special court officer and empowering him to seize and sell non-exempt property of
defendant Deluxe Cab. Helton proceeded to seize $8,331 in cash from Deluxe Cab, in addition to
three taxicabs. After the seizure, defendants obtained a stay of proceedings, an order vacating the
appointment of Helton as a special court officer, and an order requiring that all seized property be
immediately returned. The taxicabs were returned; however, Helton kept $3,180 in fees. The
Certificate of Writ of Execution Satisfied in Full/Part reveals the breakdown of the $3,180. The balance
due from defendants was $89,667.50. Helton kept the $29 statutory flat fee,7 $16 for mileage, $45 for
notice of sale fees, $200 in expenses, which included towing and storage, and $2,890 for his fee based
on the percentage of the receipts. After a hearing on the matter, the trial court allowed Helton to keep
the $3,180 in fees.
With regard to services such as those performed by Helton, MCL 600.2559(1)(j)-(k); MSA
27A.2559(1)(j)-(k), set forth the following compensation schedule:
(j) For levy under a writ of execution, $27.00 plus mileage, plus the actual and
reasonable expense for taking, keeping, and sale, plus, if the judgment is satisfied prior
to sale, 7% of the first $5,000.00 in receipts and 3% of receipts exceeding the first
$5,000.00.
(k) For sale on levy in a case of execution, 7% of the first $5,000.00 in receipts and 3%
of any receipts exceeding the first $5,000.00.
-5
We conclude that, under the statutory provisions, Helton was entitled to the flat fee, the fees for
mileage and notice of sale, and the $200 in expenses, because the statutes only required a levy under a
writ of execution, pursuant to which Helton acted, to collect these f
ees. However, Helton was not
entitled to keep the remaining $2,890 fee based on the percentage of receipts.
MCL 600.2559(1)(j); MSA 27A.2559(1)(j) provides that the person conducting the seizure is
entitled to a percentage of the receipts “if the judgment is satisfied prior to sale.” Nothing in the record
demonstrates, nor does either party contend, that the judgment in this matter has been satisfied.
Therefore, Helton is not entitled to the fee under MCL 600.2559(1)(j); MSA 27A.2559(1)(j). Neither
can Helton prevail under MCL 600.2559(1)(k); MSA 27A.2559(1)(k), because no sale on the
property levied against has occurred. Because there was no statutory basis for the fees, the trial court
erred when it allowed Officer Helton to keep the $2,890 percentage of receipt fee. See In re Fees of
Court Officer, 222 Mich App 234, 254; 564 NW2d 509 (1997).
Defendants also argue that they are entitled to recover the $2,310 in revenue lost during the time
Helton had three of defendant Deluxe Cabs’ taxicabs in his possession. Defendants rely upon MCL
600.2559(7); MSA 27A.2559(7), which states, “[a]ny sheriff or other officer who, after the fees
specified by this section have been tendered, neglects or refuses any of the services required by law
shall be liable to the party injured for all damages which the party sustains by reason of that neglect or
refusal.” Under the plain language of the statute, for liability to attach, Helton must have neglected a
service required by law or refused a service required by law. Because there is no evidence of such
neglect or refusal, defendants may not recover under this section for lost revenue.
Affirmed in part, reversed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Jeffrey G. Collins
1
SMART is an acronym for Suburban Mobility Transit Authority for Regional Transportation.
2
Because plaintiff Wilburn Burris’ claims are derivative of plaintiff Sue Janice Burris’ claims, the term
plaintiff in this opinion refers only to plaintiff Sue Janice Burris.
3
The following exchange took place between plaintiff’s counsel and the court:
[PLAINTIFF’S COUNSEL]: I think what the Court does, I think, your
Honor, is if they give damages for work loss before the three years are up, I think they
just subtract that and they don’t bother the jury with that.
THE COURT: Okay, how about we’ll just stipulate to that. The first three
years, if they award an amount in excess of the benefits, will be this work loss amount
during the first three years in excess of no-fault.
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So I’m just simply going to say, damages suffered by the plaintiff, including
work loss, all work loss—we’ll just say work loss.
And you agree that, can we get a stipulation that if the amount exceeds what the
insurance would cover, that it comes under this work loss during the first three years in
excess of the no-fault benefits.
[PLAINTIFF’S COUNSEL]: That’s fine with me.
4
Counsel for defendants stated as follows:
I hear what the Court is saying, but I’m not going to agree to anything about
wage loss. I don’t think there’s any proof of wage loss.
***
So I can’t really stipulate to anything because I don’t want it to be used, to
sound like I agree—I think no wage loss has—I’ve already made my point, your
Honor.
5
MCL 500.3107(1)(b); MSA 24.13107(1)(b) states that the maximum amount of PIP benefits payable
for work loss “shall be adjusted annually to reflect changes in the cost of living under rules prescribed
the commissioner. . . .” The historical and statutory notes following that section reference Insurance
Bureau Bulletin 98-03, wherein the $1,000 wage loss limitation set forth in § 3107(1)(b) is adjusted for
the rate of inflation. Plaintiff’s accident occurred on January 26, 1994. According to the bulletin,
plaintiff would be subject to a monthly maximum benefit in wage losses of $3,267 for the period from
October 1, 1993 to September 30, 1994, $3,349 for the period from October 1, 1994, to September
30, 1995, $3,450 for the period from October 1, 1995 to September 30, 1996, and $3,545 for the
period from October 1, 1996 to September 30, 1997. Thus, plaintiff’s maximum no-fault wage loss
benefits payable from the date of her accident to expiration of the three-year limitation would total
approximately $121,859, and the maximum no-fault wage loss benefits payable from the date of her
accident to the date of the verdict would total approximately $104,355.
6
Post-trial reductions of a verdict made pursuant to statute are not considered when calculating the
adjusted verdict for purposes of determining whether mediation sanctions are warranted. See Hall v
Citizens Ins Co, 141 Mich App 676, 689; 368 NW2d 250 (1985). Therefore, the trial court should
not apply the setoff required by MCL 600.2925d(b); MSA 27A.2925(4)(b) when calculating the
adjusted verdict.
7
MCL 600.2559(2); MSA 27A.2559(2) allowed for a $1 increase of the statutory flat fee in 1995 and
1996. Therefore, the maximum that could be collected for the statutory flat fee was $29.
-7
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