Michigan Court of Appeals; Docket # 342188; Unpublished
Judges Gadola, Servitto, and Redford; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Actual Fraud
Fraud/Misrepresentation
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of the defendant’s motion for summary disposition seeking dismissal of the plaintiff’s first-party action to recover no-fault PIP benefits. The fraud provision in the plaintiff’s automobile insurance policy with the defendant, Farm Bureau General Insurance Company of Michigan, provided that if the plaintiff intentionally concealed or misrepresented any material fact or circumstance, either before or after a loss, the entire policy would be void. The Court of Appeals determined that the plaintiff did make a material misrepresentation when discussing pre-existing conditions during his deposition, and submitted fraudulent claims for replacement services and attendant care benefits. Thus, all his claims were barred by the policy’s fraud provision.
Soyed Ahmed was injured in a motor vehicle collision in which he claimed to have suffered injuries to his head, shoulder, wrist, hip, neck, and back. His automobile insurer, Farm Bureau, refused to pay any PIP benefits related to the collision, prompting Ahmed to file the underlying lawsuit against it. Farm Bureau moved for summary disposition, asserting that Ahmed misrepresented his pre-existing injury history and submitted false claims for replacement services and attendant care. Ahmed moved for summary disposition as well, asserting that Farm Bureau “did not deny paying him benefits for any reasons it now claims, but instead denied benefits for its false assumption that plaintiff was driving for Uber at the time of the accident and that it was thus not the responsible insurer.” The trial court denied both motions, finding that there was a question of fact with regard to each issue, and both Ahmed and Farm Bureau appealed.
The Court of Appeals first rejected Ahmed’s assertion that Farm Bureau waived its fraud and breach of insurance contract affirmative defenses by failing to plead those defenses with specificity as is required by MCR 2.112(D)(2). The Court noted that Farm Bureau’s affirmative defenses included both a fraud defense and a defense relating to the possibility that Ahmed was driving for Uber at the time of the collision.
Next, the Court of Appeals determined that there was no material question of fact that Ahmed made material misrepresentations and false statements in his claim for benefits, thereby triggering his policy’s fraud exclusion provision. Ahmed’s medical records detailed a history of back pain and treatment, but when Ahmed was asked about any pre-existing conditions during his deposition, he denied ever having any back pain prior to the subject collision.
Plaintiff attempts to explain the inaccuracies in plaintiff’s deposition testimony as being due to his limited knowledge of the English language and faulty translations by plaintiff’s translator at deposition. However, plaintiff stated at the beginning of his deposition that he could read English and could speak some English. When asked by defense counsel at the conclusion of the deposition whether he understood all of the questions he had been asked, plaintiff responded that he did. Additionally, plaintiff’s counsel stated that he also spoke plaintiff’s primary language, Bengali. Plaintiff’s counsel corrected the translator twice during plaintiff’s deposition but did not do so during the sequence of questions concerning plaintiff’s prior back and neck pain. Had there been any misinterpretation of plaintiff’s answers, counsel could readily have corrected them either by requesting that the translator properly interpret or by questioning plaintiff himself during the deposition. There is simply no indication that plaintiff did not understand what he was being asked or that the interpreter incorrectly stated plaintiff’s answers to the posed questions. Plaintiff specifically stated, more than once, that he had not had back pain prior to the accident. His medical records clearly contradict those statements. Because defendant claims that his back was injured in the accident, any prior back problems are material and relevant to his claim. In denying prior back pain, plaintiff thus made intentional material misrepresentations and/or false statements relative to his back.
The Court of Appeals also determined that Ahmed submitted fraudulent claims for attendant care and replacement services. Ahmed submitted claims for every day in September of 2016, but later testified that he was out of the country for several weeks, beginning on September 1, 2016. The Court determined that his wife could not, therefore, have performed the services alleged in Ahmed’s claims.
Clearly, because plaintiff was not even in the country from September 1, 2016, to at least September 22, 2016, plaintiff’s wife could not have provided the stated attendant care and replacement services for plaintiff that she claimed she provided on those dates. As a result, plaintiff made false statements relative to the attendant care and replacement services provided for him during the month of September 2016.
