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Winnick v. Steele10/30/2003
UNPUBLISHED
In this automobile negligence action, plaintiff appeals as of right a judgment of no cause of action following a jury trial. We affirm.
Plaintiff argues that a new trial is warranted because of misconduct by defense counsel. We disagree. In Reetz v Kinsman Marine Transit Co , 416 Mich 97, 102-103; 330 NW2d 638 (1982), our Supreme Court stated:
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. [Footnotes omitted.]
Additionally, an attorney's comments during trial may warrant reversal where "'they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence on the verdict.'" Wiley v Henry Ford Cottage Hosp , 257 Mich App 488, 501-502; 668 NW2d 402 (2003), quoting Ellsworth v Hotel Corp of America , 236 Mich App 185, 191-192; 600 NW2d 129 (1999).
Plaintiff first contends that defense counsel improperly emphasized that she was seeking money damages. While the challenged remarks referred to plaintiff's desire for money, plaintiff cites no authority in support of her position that such remarks are improper. A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim. Eldred v Ziny , 246 Mich App 142, 150; 631 NW2d 748 (2001). Therefore, we decline to consider this matter further.
Plaintiff also argues that defense counsel deliberately misled the jurors by suggesting that the threshold determination of a serious impairment of an important body function was applicable to an award of excess economic damages. We agree that this threshold determination need not be proven to recover economic loss damages in excess of no-fault benefits. MCL 500.3135(3)(c); Cochran v Myers , 146 Mich App 729, 731; 381 NW2d 800 (1985). Rather, this threshold is relevant only to an award of non-economic damages. Id. at 731.
We disagree with plaintiff that she objected to the challenged remarks at trial. At most, plaintiff merely expressed confusion at defense counsel's argument. While defense counsel's remarks in opening statement may have suggested that the jury would have to find a serious impairment of an important body function in order to award excess economic damages, counsel later correctly stated the law. More importantly, the trial court subsequently properly instructed the jury regarding this matter. Therefore, this issue does not warrant reversal. Seppala v Neal , 323 Mich 697, 705; 36 NW2d 186 (1949).
Plaintiff also argues that defense counsel improperly referred to the no-fault scheme for economic loss claims. Whether a plaintiff seeking recovery for personal injury has other remedies available is generally considered irrelevant and, therefore, should not be raised before a jury. Reetz, supra at 104. In this case, however, the trial court expressly allowed counsel to refer to the statutory scheme in or
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