             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


    MICHAEL J. MOREY, individual and as Personal                       UNPUBLISHED
    Representative for the Estate of MARILYN                           February 27, 2020
    LOUISE LAROCK,

                Plaintiff-Appellee,

    v                                                                  No. 347379
                                                                       Ingham Circuit Court
                                                                       LC No. 17-000772-NI
    THEODORE GERARD ARENS and PAMELA
    JEAN ARENS,

                Defendants-Appellants.


Before: FORT HOOD, P.J., and BECKERING and BONSTRA, JJ.

PER CURIAM.

         This case arises from a fatal car crash. Defendants Theodore and Pamela Arens appeal by
leave granted1 the trial court’s order granting in part and denying in part their motion in limine to
preclude certain evidence at trial. At issue in this appeal are those portions of the order denying
defendants’ request to exclude evidence of Theodore’s no-contest plea to a misdemeanor criminal
charge arising from the incident and reference to defendants’ liability insurance coverage. For the
reasons explained below, we reverse in part, vacate in part, affirm in part, and remand the matter
to the trial court for further proceedings.

                         I. RELEVANT FACTS AND PROCEEDINGS

       On June 1, 2017, Theodore Arens was driving westbound on I-96 near its intersection with
Stockbridge Road when he rear-ended a car driven by plaintiff, Michael Morley. Pamela Arens,
Theodore’s wife, co-owned and was riding in the vehicle that Theodore was driving. Marilyn



1
 Michael J. Morley v Theodore Gerard Arens, unpublished order of the Court of Appeals, entered
February 19, 2019 (Docket No. 347379).


                                                -1-
LaRock, Michael’s wife and his passenger at the time, was killed in the crash, and Michael was
injured.

        Michael sued defendants in his individual capacity and as personal representative of his
wife’s estate. In count I of the complaint, he alleged that Theodore was “[d]riving at an excessive
and unlawful speed,” was “looking at a cellular phone and/or other devices,” and “did fail to make
an observation of obvious traffic conditions and did fail to stop in the assured clear distance
ahead . . . .” In count II, he alleged that Pamela failed to exercise proper care because she was
aware of Theodore’s “driving habits” and that his “driving record included numerous citations,
convictions and suspensions for reckless, careless and negligent driving . . . .”2

        In their answer, defendants denied that Theodore drove “in a careless, reckless or grossly
negligent manner . . . .” They asserted that Theodore “was not negligent for the reason that he
faced a sudden emergency not of his own making.” They also raised affirmative defenses,
including that Michael failed “to activate his warning flashers or take other warning or evasive
action,” that it was yet to be determined whether he and Marilyn were wearing their seatbelts at
the time of the accident, that a road crew was working on the roadway “west of the subject accident
without adequate warning to approaching motorists that stop and go traffic could occur,” and that
Theodore’s view was obstructed by a semitruck he was passing when the accident occurred.

        Prior to trial, defendants filed a motion in limine. Relevant to the issues on appeal,
defendants cited MRE 410(2) in support of their request to exclude “any evidence or testimony
relating to the citation issued to, or criminal proceeding involving, Defendant Theodore Arens
arising out of the automobile accident.” Defendants argued that allowing evidence of Theodore’s
plea of nolo contendere, or no contest, to charges arising out of the automobile accident would be
irreparably prejudicial because “the jury could draw an inference of his negligence based on the
fact that he did not contest the charges.” Citing MRE 411, defendants asked the court to preclude
all reference to insurance coverage. They contended that if insurance were mentioned, the jury
may be “inclined to award a higher amount based on the terms of the insurance policy and because
the insurance company would be paying the verdict.”

        In opposing the motion, plaintiff argued that the 1991 amendment to MRE 410(2) rendered
evidence of Theodore’s no-contest plea admissible to the same extent that a guilty plea was
admissible. Plaintiff reasoned therefrom that, should Theodore continue to deny liability for the
accident, the plea would be admissible as a prior inconsistent statement to impeach him. In
addition, plaintiff argued that evidence of Theodore’s negligent driving was relevant as to
damages. Regarding insurance coverage, plaintiff urged the trial court to hold its decision on this
issue in abeyance until it came up at trial, and that such evidence may be admissible on the issue
of the credibility of defendants’ expert witness.

       In reply, defendants contended that the only exception to MRE 410(2)’s prohibition against
admitting or using evidence of the no-contest plea “is when the evidence is offered to support a



2
 Plaintiff also filed suit against defendants’ insurer, Auto Club Group Insurance Company.
However, the trial court later dismissed Auto Club with prejudice by stipulation of the parties.

                                                -2-
defense against a claim asserted by the person who entered the plea.” In other words, it was
admissible only as a defense to a lawsuit in which the person who entered the plea was asserting
the claim. Defendants cited as supportive authority the majority opinion in Home-Owners Ins Co
v Bonnville, unpublished per curiam opinion of the Court of Appeals, issued June 8, 2006 (Docket
No. 266794), quoting the following explanation:

       [MRE 410(2)] indicates that where a defendant who entered a no contest plea is
       later a plaintiff in a related civil action, the defendant may use the plea as evidence
       in building a defense against that plaintiff’s claim. The protection afforded a
       defendant who chooses not to contest a charge may act as a shield where that
       defendant is a defendant again in a civil action, but not as a sword if a defendant in
       a criminal proceeding later becomes plaintiff in a related civil action. [Bonnville,
       unpub op at 2-3.]

Based on the foregoing, defendants asserted that Theodore was entitled to use MRE 410(2) as a
shield, as it rendered his no-contest plea inadmissible because he was the defendant, not the
plaintiff.

        Regarding the admissibility of evidence of insurance coverage, defendants contended that
plaintiff was trying to circumvent MRE 411 by arguing that he could elicit evidence of insurance
on cross examination of defendants’ expert witness to suggest bias. Defendants contended that
there were permissible questions plaintiff could use to elicit evidence of bias, but asking
specifically whether defendants’ liability insurance company was paying the expert was irrelevant
and unfairly prejudicial, and the court should exclude it as a matter of public policy.

        At the hearing on defendants’ motion in limine, the trial court told plaintiff he could not
use evidence of Theodore’s no-contest plea to rebut Theodore’s assertion that he “did nothing
wrong,” because such assertion is not a “claim.” However, the court concluded that if Theodore
were to testify that the brakes on his car failed or that there was a “sudden emergency,” he would
be asserting “claims,” and thus, plaintiff could use the no-contest plea as a shield against them.
With respect to insurance, the court instructed plaintiff that there would be no general mention of
insurance. Plaintiff could not ask defendants’ expert witness directly if defendants’ insurance
carrier was paying him, but he could ask “who” was paying him. The court was unwilling to issue
a blanket prohibition against mention of insurance in the event defendants’ testimony made
insurance relevant.

        Subsequently, the trial court issued an order granting in part and denying in part
defendants’ motion in limine. The order granted defendants’ motion to the extent that it ordered
the parties and their attorneys not to introduce evidence or testimony, or in any way bring to the
jury’s attention,

       The wealth, income, liability insurance or assets of the Defendants, and/or their
       ability to pay any particular verdict or judgment, except by Plaintiff for
       impeachment purposes in the event that Defendants, their witnesses or attorney first
       indicate that Defendants payment of a verdict or judgment would create a financial
       hardship.


                                                -3-
The court order denied defendants’ request to exclude evidence and testimony of Theodore’s no-
contest plea pursuant to MRE 410(2), as well as “Defendants’ request . . . to preclude Plaintiff’s
attorney from asking on cross-examination whether Defendants’ expert witnesses were
compensated for their services by Defendants’ liability insurance carrier.” This Court granted
defendants’ application for leave to appeal as well as their motion for a stay pending appeal.

                                          II. ANALYSIS

        Defendants argue that the trial court abused its discretion by denying their motion in limine
to exclude evidence of Theodore’s no-contest plea and reference to liability insurance. We agree
in part and disagree in part.

                                  A. STANDARD OF REVIEW

        This Court reviews a trial court’s evidentiary rulings for an abuse of discretion. See
Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 153-154; 908 NW2d 319 (2017).
A trial court abuses its discretion when its decision falls outside the range of principled outcomes,
Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010), and when its decision arises from an
incorrect legal framework, People v Hine, 467 Mich 242, 251; 650 NW2d 659 (2002). The
interpretation of the Michigan Rules of Evidence is a question of law, which this Court reviews de
novo. People v Dobek, 274 Mich App 58, 93;732 NW2d 546 (2007). A trial court necessarily
abuses its discretion when it admits evidence that is inadmissible as a matter of law. See Craig v
Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004).

                         B. ADMISSIBILITY OF NO-CONTEST PLEA

       Defendants argue that the trial court erred by interpreting the word “claim,” for purposes
of MRE 410(2), to refer to any factual assertions. This interpretation, they assert, eviscerates the
general rule that no-contest pleas are inadmissible against the pleader except in certain
circumstances and ignores the nature and purpose of a no-contest plea. We agree.

      The admissibility of a no-contest plea is governed by MRE 410(2), adopted in 1978 and
amended in 1991,3 which provides in pertinent part:

               Except as otherwise provided in this rule, evidence of the following is not,
       in any civil or criminal proceeding, admissible against the defendant who made the
       plea or was a participant in the plea discussions:

                                              * * *

               (2) A plea of nolo contendere, except that, to the extent that evidence of a
       guilty plea would be admissible, evidence of a plea of nolo contendere to a criminal


3
 The Michigan Supreme Court adopted the Rules of Evidence on January 5, 1978, to be effective
on March 1, 1978. 402 Mich lxxxviii (1978). See MRE 410, note to 1991 amendment; 1
Longhofer, Michigan Court Rules Practice, Evidence (3rd ed), § 410.3, p 666.

                                                -4-
       charge may be admitted in a civil proceeding to support a defense against a claim
       asserted by the person who entered the plea[. Emphasis added]

        The disagreement between the parties regarding applicability of MRE 410(2) centers on
the word “claim.” The trial court read the word broadly to encompass not only a cause of action,
but also any assertion of right or fact. However, such a broad interpretation of “claim” for purposes
of MRE 410(2) is not supported by the context of the word’s use or by concerns animating the
rule’s current form and the Supreme Court’s original intent.

        We first turn to the plain language of the statute. The rules of statutory interpretation apply
to the interpretation of the Michigan Rules of Evidence. People v Duncan, 494 Mich 713, 723;
835 NW2d 399 (2013). The goal of interpretation is to give effect to the intent of the drafters,
focusing initially on the plain language of the rule. Id. “When the language of the rule is
unambiguous, [courts] enforce the plain meaning without further judicial construction.” Id. When
construing a [court rule], this Court must consider the object of the [rule] and apply a reasonable
construction that best accomplishes the purpose of the [rule].” Hill v LF Transp, LLC, 277 Mich
App 500, 507; 746 NW2d 118 (2008) (quotation marks and citation omitted).

        The construction of the word “claim” adopted by the circuit court in the case at hand is
consistent with the first listed definition of “claim” set forth in the version of Black’s Law
Dictionary (6th ed, 1990) in circulation when MRE 410 was amended in 1991:4 “To demand as
one’s own or as one’s right; to assert; to urge; to insist.” But the circuit court’s reading ignores
the context in which the word “claim” is placed in the evidentiary rule. MRE 410(2) states that
“evidence of a plea of nolo contendere to a criminal charge may be admitted in a civil proceeding
to support a defense against a claim asserted by the person who entered the plea.” (Emphasis
added.) Black’s Law Dictionary (6th ed, 1990), defines “defense” as follows: “That which is
offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact
why the plaintiff should not recover what he seeks. That which is put forward to diminish
plaintiff’s cause of action or defeat recovery. . . .” (Emphasis added.) The second listed definition
of claim in the sixth edition of Black’s is, “A cause of action.” Accordingly, MRE 410(2) should
be read as follows:

               Except as otherwise provided in this rule, evidence of the following is not,
       in any civil or criminal proceeding, admissible against the defendant who made the
       plea or was a participant in the plea discussions:

                                               * * *

               (2) A plea of nolo contendere, except that, to the extent that evidence of a
       guilty plea would be admissible, evidence of a plea of nolo contendere to a criminal



4
 Because the meaning of a word or the primary accepted definition can change over time, courts
often look to dictionary definitions in use at the time a statute was enacted. See, e.g., Sebring v
City of Berkley, 247 Mich App 666, 678-679; 637 NW2d 552 (2001).

                                                 -5-
       charge may be admitted in a civil proceeding to support [that which is put forward
       to diminish] a [cause of action] asserted by the person who entered the plea[.]

In other words, if a person who entered a no-contest plea to a criminal charge then files a civil
lawsuit, the defendant in the civil suit may use evidence of the now-plaintiff’s no-contest plea as
a defense. This construction of MRE 410(2) is supported by the history of MRE 410.

        The 1991 amendment of MRE 410 reversed one of the holdings in Lichon v Amer Ins Co,
435 Mich 408; 459 NW2d 288 (1990), thereby clarifying the Court’s original intent regarding the
exclusionary rule. See MRE 410, note to 1991 amendment; 1 Longhofer, Michigan Court Rules
Practice, Evidence (3rd ed), § 410.3, p 666. Lichon involved a plaintiff who sued his fire insurance
carrier in order to collect on a fire insurance policy for losses suffered when a fire destroyed his
party store. When police charged plaintiff with starting the fire, he entered a no-contest plea to
attempted burning of real property, but continued to pursue his civil case against the fire insurance
company. At issue in Lichon was whether the defendant fire insurance company could use the
plaintiff’s no-contest plea to defend against his effort to collect on the policy. The trial court
determined that it could and granted the defendant’s motion for summary disposition under MCR
2.116(C)(10). Lichon, 435 Mich at 411-412.

         This Court affirmed the trial court’s decision on appeal. Lichon v American Universal Ins
Co, 173 Mich App 178; 433 NW2d 394 (1988), rev’d 435 Mich 408 (1990). However, the
Michigan Supreme Court reversed this Court’s decision and remanded the matter to the trial court
for a trial on the merits. Lichon, 435 Mich at 432. The Lichon Court held that the plaintiff’s no-
contest plea to the charge of attempted burning of real property “is not an admission of guilt that
could be used against him in subsequent civil or criminal litigation.” Id. at 415. The primary
purpose of the no-contest plea, the Court explained, is “to avoid potential future repercussions
which would be caused by the admission of liability, particularly the repercussions in potential
future civil litigation.” Lichon, 435 Mich at 417. Recognition of the plea “facilitate[s] plea
bargaining and the concomitant speedy resolution of criminal cases.” Lichon, 435 Mich at 420.
Thus, “neither a plea of nolo contendere nor a conviction based thereon prevents the person who
entered that plea from maintaining innocence in subsequent civil litigation regardless of whether
the person who entered the plea is the plaintiff or the defendant in the subsequent litigation.” Id.
at 431. The Lichon Court read MRE 410 to mean that “a plea of nolo contender may not be
introduced against the party who entered that plea, irrespective of whether that party is a plaintiff
or a defendant in subsequent litigation.” Id. at 423 (emphasis added).

        In a vigorous dissent, Justice Griffin argued in relevant part that neither the language of
MRE 410 nor the intent of the Michigan Supreme Court in adopting MRE 410 supported the
majority’s conclusion that a person’s no-contest plea in a criminal matter was inadmissible when
that person then filed a civil action based on the same transaction. The rule prohibited admission
of a no-contest plea “in any civil or criminal proceeding against the person who made the plea
offer.” (Lichon, 435 Mich at 434) (GRIFFIN, J., dissenting; emphasis added by Justice Griffin).
“Obviously,” wrote the Justice, “where a civil suit is instituted by a person who has pleaded nolo
contendere, it is not a proceeding against the pleader.” Id. at 436.




                                                -6-
        Addressing the intent of the Court and the policies it deemed important when adopting the
rule, Justice Griffin stated that the defendant’s no-contest plea was relevant to the truth-finding
mission of the law and acknowledged the policy objectives of plea bargaining. Id. at 438-440.
Nevertheless, he contended that “the promotion of plea bargaining is not a public interest so
overriding and paramount” as to compel a construction of MRE 410 that “actually aids the criminal
defendant if he seeks to profit from his crime.” Id. at 440.

               The line which should be drawn in this case is not new to the law.
       Historically, evidence of a criminal conviction, plea-based or otherwise, was
       inadmissible in a subsequent civil suit. However, a distinction was made between
       civil proceedings brought against the criminal defendant and those brought by him
       to take advantage of his criminal act. In the latter situation, courts have almost
       universally admitted evidence of the conviction in the civil suit.

                                               * * *

               In light of that distinction drawn at common law, it is reasonable to
       believe that this Court intended to draw a similar line when, in 1973, it adopted
       MRE 410 and used the words which plainly limit the evidentiary protection given
       a nolo contendere pleader to “any civil or criminal proceeding against the person
       who made the plea . . . .” [Id. at 440-441 (footnotes omitted; emphasis in the
       original).]

Justice Griffin concluded that the protection MRE 410 afforded a person who pleaded no contest
in a criminal case did not extend to allowing that person to then use the protection of the
exclusionary rule to profit from his or her crime as a plaintiff in a civil case. See id.

        The 1991 amendment to MRE 410 altered the blanket rule set forth in Lichon that evidence
of a no-contest plea could not be admitted against the person who entered it, “irrespective of
whether that party is a plaintiff or a defendant in subsequent litigation.” Lichon, 435 Mich at 423.
In doing so, the amendment did not change the nature, purpose, and fundamental protection of a
no-contest plea; a no-contest plea is not an admission of guilt that can be used by a plaintiff in a
related civil case against the person who entered the plea, and it does not prevent the person who
entered the plea from asserting innocence as a defendant in a related civil case. But the 1991
amendment provides an exception to the exclusionary rule when the person who entered the plea
later becomes a plaintiff in a related civil case. When this happens, as it did in Lichon, the civil
defendant can use evidence of the no-contest plea to build a defense against the defendant-turned-
plaintiff’s claim. This operation of the rule is consistent with this Court’s post-1991 interpretation
of the rule. See Akyan v Auto Club Ins Ass’n (On Rehearing), 208 Mich App 271, 274; 527 NW2d
63 (1994) (stating, “MRE 410, as amended, permits the admission of evidence of a claimant’s plea
of no contest to a criminal charge in a later civil suit by the claimant . . . .”) (Emphasis added).

        Plaintiff cites Shuler v Mich Physicians Mut, 260 Mich App 492; 679 NW2d 106 (2004),
for the proposition that “a defendant in a civil action may be impeached by [a] conviction” based
on a no-contest plea. What plaintiff fails to acknowledge, however, is that the conviction in Shuler
arose from a no-contest plea to attempted perjury, that the party seeking to admit the evidence of


                                                 -7-
the perjury conviction did so under MRE 609(a)(1),5not MRE 410(2), and that this Court expressly
indicated that while the conviction was available for impeachment use, the fact that the person
pleaded no contest was not. See id. at 513. Thus, plaintiff’s reliance on Shuler is misplaced.6

        Finally, plaintiff contends that MRE 410(2) makes the evidentiary use of a no-contest plea
“dependent on whether the nolo pleader takes a contrary position in civil proceedings. If a litigant
accepts criminal responsibility, then disclaims civil responsibility, the change in position is fair
game for cross-examination, just like any other prior inconsistent statement.” However, as the
Lichon Court explained, a no-contest plea is not an admission of guilt and does not prevent the
pleader from maintaining his innocence as a defendant in a subsequent civil case. See Lichon, 435
Mich at 417, 431. Therefore, the person who admitted nothing by pleading no contest in a criminal
case does not “change . . .position” by disclaiming civil responsibility in a subsequent related civil
case. Moreover, even if a no-contest plea may be construed as “an implicit admission of guilt, it
is such an admission only for the purposes of the criminal proceeding in which the plea is entered.”
Lichon, 435 Mich at 417. For all these reasons, evidence of a no-contest plea is not a “prior
inconsistent statement” that the plaintiff in a civil case can use to impeach the person who entered
the plea.

       In light of the foregoing, we conclude that the trial court erred in construing the word
“claim” in the phrase “to support a defense against a claim asserted by the person who entered the
plea” for purposes of MRE 410(2), and as such, it abused its discretion by denying defendants’
motion in limine to exclude evidence of Theodore Arens’ no-contest plea.



5
 MRE 609(a) generally bars admission of evidence that a witness has been convicted of a crime,
unless such evidence was “elicited from the witness or established by public record during cross-
examination, and the crime contained an element of dishonesty or false statement . . . .” MRE
609(a)(1).
6
 Plaintiff also cites Pioneer State Mut Ins Co v Song, unpublished opinion per curiam of the Court
of Appeals, issued June 4, 1996 (Docket Nos. 172882 and 174542) for the proposition that
evidence of a no-contest plea may be admitted against a defendant. In the consolidated case,
Pioneer v Lee, the defendant pleaded no contest to aggravated assault. Id. at 2. The defendant
claimed that the introduction of his plea in the civil proceeding was improper. Id. This Court
addressed the argument as follows:

       Lee provides no support for this purely speculative argument. Moreover, given our
       conclusion on the first issue [affirming the trial court’s grant of summary
       disposition], this issue is not relevant. In any event, MRE 410(2) provides that a
       plea of nolo contendere “may be admitted in a civil proceeding to support a defense
       against a claim asserted by the person who entered the plea.” [Id. at 3.]

This Court’s dictum in a non-binding case, which is not supported by any accompanying analysis,
is not persuasive.



                                                 -8-
             C. ADMISSIBILITY OF EVIDENCE OF LIABILITY INSURANCE

        Defendants next contend that the trial court erred by denying their motion to exclude
evidence of insurance coverage pursuant to MRE 411, and specifically, that the court erred in
concluding that plaintiff could admit evidence of insurance under the guise of showing bias on the
part of defendant’s expert witness. We agree in part.

       MRE 411 governs the admissibility of evidence of liability insurance as follows:

       Evidence that a person was or was not insured against liability is not admissible
       upon the issue whether the person acted negligently or otherwise wrongfully. This
       rule does not require the exclusion of evidence of insurance against liability when
       offered for another purpose, such as proof of agency, ownership, or control, if
       controverted, or bias or prejudice of a witness.

         “The most important, and most frequently used, permissible purpose for introduction of
insurance evidence is to show bias, e.g., of a witness who is employed by the defendant’s insurance
carrier.” I Longhofer, § 411.2, p 675. It has been long settled that an expert witness may be
questioned regarding whether and how much the expert is compensated, see Alford v Vincent, 53
Mich 555; 19 NW 182 (1884), how much the expert receives for services in other cases, and about
whether the expert has demonstrated a pattern of testifying for particular attorneys or on a
particular side, see Wilson v Stilwill, 411 Mich 587; 309 NW2d 898 (1981). Furthermore, the
introduction of insurance evidence is not necessarily reversible error where the party challenging
such admission has arguably injected the issue into trial. See Cogo v Moore, 119 Mich App 747;
327 NW2d 345 (1982) (plaintiff’s counsel’s referring to insurance in closing argument to rebut the
defendant’s implication to the jury that he was financially unable to pay a judgment was not
reversible error); Cacavas v Bennett, 37 Mich App 599; 194 NW2d 924 (1972) (holding that the
defendant’s reference to the plaintiff’s insurance was not reversible error where the plaintiff had
testified that he lost his insurance when he lost his job, shortly before the car accident at issue).

         As noted earlier, the trial court indicated that it was not going to issue a blanket order
prohibiting any mention of insurance, but it also was not going to allow a general discussion of
insurance. The court presumed that plaintiff’s attorney was aware of the type of questions
permitted to impeach defendants’ expert witness. The court stated that plaintiff’s counsel could
ask defendants’ expert witness on cross-examination whether the witness was being paid and by
whom, but counsel could not “ask them, did the insurance company pay you.” The court also
deemed questions about insurance permissible for impeachment purposes should the defendants
testify that this case was going to ruin them financially. The court indicated that it would handle
any other related issues as they arose. Accordingly, the court ordered in part:

       [T]he parties shall not introduce evidence or testimony regarding, and that their
       attorneys shall not mention or otherwise bring to the attention of the jury, the
       following matters:

               1. The wealth, income, liability insurance or assets of the Defendants and/or
       their ability to pay any particular verdict or judgment, except by Plaintiff for
       impeachment purposes in the event that Defendants, their witnesses or attorney first

                                                -9-
       indicate that Defendants [sic] payment of a verdict or judgment would create a
       financial hardship . . . .

       However, as a final provision, the court denied the motion “with regard to Defendants’
request. . . to preclude Plaintiff’s attorney from asking on cross examination whether Defendants’
expert witnesses were compensated for their services by Defendants’ liability insurance carrier.”
This provision seems to allow what the court made clear to plaintiff’s attorney he could not do.
Although the court told plaintiff’s attorney he could not directly cross-examine defendants’ expert
witness on whether defendants’ liability insurance carrier was paying him, the final provision
seems to allow precisely that. While questions directed toward the fact that the defense is paying
an expert’s fees are entirely appropriate, questioning a witness outright if he or she is being paid
by defendants’ insurance carrier would unnecessarily inject the issue of insurance into the case if
the expert is not, in fact, being paid by the defendants’ insurance carrier. For example, the expert
could receive payment from defendants or defense counsel’s law firm. Further, as aptly noted in
Longhofer, courts are free to restrict the impeachment to a reference to the witness’s employment
“by the defense,” without allowing mention of insurance. Evidence, Vol. I, § 411.2, p 675.

        “A court speaks through its written orders and judgments, not through its oral
pronouncements.” Simcor Constr, Inc v Trupp, 322 Mich App 508, 522; 912 NW2d 216 (2018).
Here, the court’s order, as written, ostensibly allows plaintiff’s attorney to do what the court said
he could not do, and what MRE 411 prohibits: ask outright if the liability insurance carrier is
footing the bill for defendant’s expert, rather than asking open-endedly who is paying defendants’
expert. Thus, we vacate that portion of the trial court’s order denying defendants’ request “to
preclude Plaintiff’s attorney from asking on cross-examination whether Defendants’ expert
witnesses were compensated for their services by Defendants’ liability insurance carrier,” but
affirm the remainder of the trial court’s order setting forth the parameters of permissible reference
to liability insurance. The trial court is free to make evidentiary rulings during trial that are
consistent with MRE 411 and not unduly prejudicial.

      We reverse in part, vacate in part, affirm in part, lift the stay previously imposed, and
remand to the trial court for further proceedings. We do not retain jurisdiction.



                                                              /s/ Karen M. Fort Hood
                                                              /s/ Jane M. Beckering
                                                              /s/ Mark T. Boonstra




                                                -10-
