Insurer that lost at trial loses again on appeal
Kenneth Mascia rolled his $80,000.00 Dodge Viper after driving stupidly on Woodward Avenue the night before the Woodward Dream Cruise. He sought to collect his collision damage for the wrecked car from his insurer, IDS Property Casualty. The insurer denied payment based on its interpretation that Mascia was involved in a "pre-arranged" drag race--a risk excluded under the insurance policy. Mascia responded that while he may have been driving stupidly, he was not engaged in any "prearranged" race. At trial the jury agreed and issued a verdict against IDS.
The insurer argued that a police officer should have been allowed to testify that Mascia was engaged in a "pre-arranged" race, even though the officer's opinion of pre-arranged did not comport with the law interpreting this language--which excludes from "pre-arranged" any act that is impulsive and not planned in advance. The insurer also argued that Mascia's attorneys "even if" argument about pre-arrangement should be considered an admission that Mascia was, in fact, engaged in a drag race.The Court of Appeals made quick work of the IDS arguments. It pointed out that an attorney can concede, for argument, issues which are not material to the argument, and that these do not become admissions as a result. It also held that it would improperly confuse the jury to allow a lay witness to offer opinions that are inconsistent with the applicable law. On that basis, the Court of Appeals upheld the jury verdict for Mascia.