Radloffv.Mich

Michigan Court of AppealsAug 6, 1984
136 Mich. App. 457 (Mich. Ct. App. 1984)

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Docket No. 70064.

Decided August 6, 1984. Leave to appeal applied for.

Sommers, Schwartz, Silver Schwartz, P.C. (by Stanley S. Schwartz, Jeremy L. Winer and Richard D. Toth), plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Terrence P. Grady and Wallace T. Hart, Assistants Attorney General, for defendant.

Before: CYNAR, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.


ON REMAND


On February 28, 1983, this case was remanded to us by order of the Supreme Court with the mandate to reconsider our previous opinion in this matter in light of Precopio v Detroit, 415 Mich. 457; 330 N.W.2d 802 (1982). Radloff v State of Michigan, 417 Mich. 894; 330 N.W.2d 692 (1983).

In Precopio, supra, the Supreme Court set forth the standards for review of awards for personal injury in both jury and nonjury cases. Regarding nonjury cases, which the present case was, the Supreme Court stated that the "clearly erroneous" standard is to be applied by the reviewing court to both findings of fact generally and to the amount of damages. A finding is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. If the reviewing court determines that the trial court made a mistake, the reviewing court must substitute its own appraisal of the record and may reduce damages or may conditionally affirm the award.

In our previous decision, Radloff v State of Michigan, 116 Mich. App. 745; 323 N.W.2d 541 (1982), we reviewed the defendant's claim that the verdict was excessive. After a bench trial, the trial court awarded plaintiff $7,491,854. Although we opined that the verdict was clearly more than what we would have awarded, we felt compelled to affirm it because it appeared to us that the trial court, after reviewing the evidence presented by plaintiff, awarded damages in accordance with the testimony presented. Furthermore, the defendant did not offer any proofs whatsoever to contradict plaintiff's proofs.

Upon remand, we note that our first decision did not fully set forth the standard we employed when reviewing the issue of whether the verdict for damages was excessive. While we stated that a verdict is excessive if it shocks the judicial conscience, we did not specifically set forth the "clearly erroneous" standard of review. Thus, it appears that we may not have applied the "clearly erroneous" standard. However, after review, we find that the "clearly erroneous" standard was in fact applied. Previously, we found that the trial court awarded damages in accordance with the testimony presented and that there was no error on the part of the trial court in its award for either past or future intangible damages. Radloff, supra, pp 760, 762. Furthermore, we quite diligently searched the trial record to determine whether the trial court made a mistake and found no mistakes. We reach the same conclusion after reconsideration and aided by the guidelines of Precopio.

Once more, we note that the trial court and this Court were not assisted in any way by defense counsel. The trial court was not presented with an alternate damage schedule. Additionally, the trial court carefully went over each item of damages and made detailed findings on the record as to its conclusions in each area. An itemized list of damages and the amounts awarded is contained in our original opinion. It is well established that there are no absolute standards by which to measure personal injury awards, particularly awards for pain and suffering, which should rest within the sound judgment of the trier of fact. Precopio, supra, pp 464-465. Granted, the total amount of the award in this case seems extraordinarily high, and in our original opinion we stated that it was certainly more than what this Court would have awarded. However, after reconsideration, and aided by the guidelines of Precopio, we quite frankly are unable to find that the trial court made a mistake. The findings of the trial court are supported by the proofs which in the main were unrebutted.

On reconsideration, we affirm.