November 30, 2017
Volume XXIX, No. 27

 

COURT OF APPEALS AFFIRMS CIRCUIT COURT’S EVIDENTIARY RULING ALLOWING ADJUSTER TO TESTIFY REGARDING THE CONTENT OF HER CLAIM LOG NOTES AND HER OPINION WHETHER PLAINTIFF SUFFERED A SERIOUS IMPAIRMENT

 By Samantha J. Orvis

Generally speaking, insurance adjusters document in their claim file or log notes information and opinions which might form the basis of a decision to pay or deny a claim for benefits under a policy of insurance. Legal practitioners often seek to redact claim log notes and prevent an insurance adjuster from giving testimony on the contents of those notes, to protect the interests of the insurer and as part of an aggressive defense strategy. However, the Court of Appeals recently issued a published opinion in Andreson v Progressive Michigan Insurance Co, ___ Mich App ___ (11/21/17) in which the Court found the Circuit Court did not abuse its discretion in allowing a UIM adjuster to testify regarding her opinion that the injured party had suffered a serious impairment, as notated in the claim file log notes.

In Andreson, Progressive refused to produce its claim log notes at the request of Plaintiffs’ counsel. The Circuit Court ultimately conducted an in camera review of the claim log notes and found that the notes before a date certain were discoverable, and notes coming after that date were privileged. Contained within the log notes which the Court found were subject to discovery, was a notation about the insurance adjuster’s opinion that the injured party had sustained a serious impairment.

The adjuster who made thenote was then subpoenaed to testify at trial by Plaintiff’s counsel. Progressive moved to quash the subpoena, but the Circuit Court found that the adjuster could testify regarding the notation she made in the claims log where she voiced an opinion about the insured’s injuries meeting the serious impairment threshold. The Court relied on MRE 701 and a determination that the note was a business record under MRE 803(6).

Outside the presence of the jury, Progressive again sought to keep out the adjuster’s testimony when it came to the opinion notated in the log note about serious impairment, given it was not appropriate opinion testimony from a lay witness because it called for medical expertise that the adjuster did not have. The Court rejected this argument and allowed the testimony, relying again on MRE 701 which reads as follows:

MRE 701: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

On appeal, the Court of Appeals analyzed the evidentiary record and opined that because the adjuster’s testimony “was based on her review of medical records in the ordinary course of her employment, the opinion expressed in her claims log was rationally based on her perceptions, was helpful to a clear understanding of her trial testimony, and was helpful to the determination of whether Debra suffered a serious impairment of body function.” The Court called it a “close evidentiary decision,” and its review was limited to whether the trial court abused its discretion. The Court of Appeals also found that even if the admission of this testimony was in error, Progressive failed to prove it was more probable than not that the error was outcome determinative because the adjuster provided a substantial explanation on cross-examination why her note did not reflect her final assessment of Plaintiff’s condition.

Other issues taken up on appeal included whether the Circuit Court had erred in failing to grant a motion for remittitur filed by Progressive, which would have reduced the jury award for Plaintiff to the policy limits for UIM coverage. The Court of Appeals reversed the Circuit Court’s denial of Progressive’s motion for remittitur and reduced the amount of judgment for Plaintiff to the UIM policy limits. Progressive also appealed the Circuit Court’s award of attorney fees in favor of Plaintiff under the offer of judgment rule. The Court of Appeals affirmed that award.

The take-away from this published decision is that insurance carriers may want to caution adjusters about the information placed into routine log notes, particularly information related to the validity of claims or opinions about the claimant’s extent of injuries. It might also be wise for legal practitioners to counsel their clients on the impact such statements and opinions might have on a jury. Being more cognizant of what might be discoverable, despite objections for relevancy and other reasons, would serve us all well.

Samantha is an Associate in our Grand Blanc Office.She can be reached at (810) 695-3700 or sorvis@garanlucow.com.

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