Raffin v. O'LEARY

191 N.W.2d 481, 34 Mich. App. 398, 1971 Mich. App. LEXIS 1622

Opinions

Lesinski, C. J.

On November 17, 1967, plaintiffs and defendant were involved in an automobile accident in the City of Detroit. Plaintiffs were in the southbound left turn lane on Livernois Avenue near Otis Street waiting for traffic to clear in order to execute the turn. Defendant’s automobile was traveling in a northerly direction on Livernois when an unidentified vehicle allegedly crossed into defendant’s lane and purportedly caused defendant to cross the center line on Livernois and to crash into plaintiffs’ car.

At trial, defendant’s theory was that the unidentified automobile’s abrupt lane-change created an emergency which defendant sought to avoid. This would be, of course, a proper theory to submit to the jury if substantiated by competent evidence. However, we are of the opinion that defense counsel transgressed the permissible boundaries of argument to the jury by his statements that plaintiffs’ recovery should be against the Motor Vehicle Accident Claims Fund and not against defendant inasmuch as the negligence of the “phantom driver” was responsible for the accident.¹

While it is true that the fund is not an insurer within the meaning of MCLA § 500.3030 (Stat Ann 1957 Bev § 24.13030), which forbids any reference whatever to insurance, ² the fund is nevertheless an indemnity against which plaintiffs may have elected to proceed. The statements of defense counsel were veiled attempts to put information of an available “deep pocket” before the jury. We recognize that reference to the fund, where the Secretary of State has been joined or added or has intervened, is without prejudice since the jury is aware of the fund by the presence of the Secretary. But in a case such as the instant one where the Secretary is not a party, there is little probative value in drawing the jury’s attention to the fund and there is a great likelihood of prejudice in that the jury may ignore a valid cause of action against a defendant in favor of the “deep pocket” of the fund.³ Beversal on this issue renders unnecessary discussion of plaintiffs’ other assignments of error.

We remand for a new trial. Reversed and remanded. Costs to plaintiffs.

Y. J. Brennan, J., concurred.

Footnotes

1

In his opening statement, defense counsel asserted the following which was objected to by plaintiffs by way of a motion for mistrial:

“I think you will find, ladies and gentlemen of the jury, from the proofs that are adduced in this ease, number one, that Mr. O’Leary was not at fault for this accident and that, in fact, the plaintiffs in this case have a good claim against the state accident fund who would provide them compensation because of a phantom driver that was involved and actually caused this accident. I think the proofs will convince you that the Raffin ease is not against Mr. O’Leary, but against the state accident fund.”

In his closing arguments (somewhat in answer to plaintiffs’ counsel’s exposition of reasons as to why the Secretary of State had not been added as a party), defense counsel stated:

“As far as the Secretary of State, I mention to you that if these people really had a claim they had a lawful right to bring a claim against the Secretary of State accident fund. They have not chosen to do so. Why? That is only in Mr. Gonek’s mind. He is representing them, I can’t answer that. I can tell you this, though, I can’t bring in the Secretary of State because under the law I don’t have any claim against them. Only somebody who claims to have been hurt, or their property damages, has a right to make a claim against the Secretary of State. It is as simple as that. I don’t make any claim against the Secretary of State. I can’t. I can’t bring them into the lawsuit — that’s the law. Only Mr. Gonek can. And certainly, the Secretary of State is not going to voluntarily get themselves involved in a lawsuit. Anybody would be silly to volunteer as a defendant in a lawsuit. And that’s as simple as that.”

2

This statute was adopted as a rule of trial practice in Benmark v. Steffen (1965), 374 Mich 155.

3

Our Supreme Court has expressed disapproval of the practice of referring to social security benefits and workmen’s compensation in wrongful death actions. McCullogh v. Ward Trucking Co. (1962), 368 Mich 108 (equally divided court); Leitelt Iron Works, for the use and benefit of Michigan Mutual Liability Co. v. DeVries (1963), 369 Mich 47, 57 (disapproval of the practice but noting that the error was first injected by plaintiffs’ counsel).