Michigan Court of Appeals; Docket # 328639; Unpublished
Judges Stephens, Saad and Meter; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals affirmed the trial court’s grant of summary disposition in favor of defendant insurer pursuant to the policy’s fraud provision because plaintiff made a misrepresentation in a material statement.
In July 2013, plaintiff was in an auto accident while driving her car. Plaintiff was insured by defendant, Nationwide, and the policy included a general fraud exclusion. After the accident, plaintiff submitted claims to Nationwide for PIP benefits. When Nationwide denied the claims, plaintiff filed this action to recover benefits. During discovery, Nationwide obtained evidence in the form of plaintiff’s Facebook posts, in which she stated that she had been in Europe from April to August 2014. Despite this, plaintiff submitted claims for household replacement services for that same period, and the forms were signed by plaintiff’s husband, Mohamadou Sarr, who allegedly provided the services. At his deposition, however, Sarr testified that he was not in Europe with plaintiff during the months in question. Nationwide moved for summary disposition, arguing that plaintiff violated the policy’s fraud exclusion by submitting claims for household replacement services during a time when she was overseas. In filing its motion, Nationwide relied on Bahri v IDS Prop Cas Ins Co, 308 Mich App 420 (2014). Nationwide asserted that Sarr could not have performed the replacement services because he was not with plaintiff in Europe. The trial court granted summary disposition for Nationwide.
On appeal, plaintiff argued that Bahri was distinguishable from this case. The Court of Appeals disagreed.
The Court explained that, in Bahri, the panel considered a fraud exclusion in a no-fault policy similar to the one in this case. The Court noted that, to void a policy for fraud, an insurer must show the misrepresentation was material, the misrepresentation was false, the insured knew that it was false at the time it was made or that it was made recklessly without any knowledge of its truth, and the insured made the material misrepresentation with the intention that the insurer would act on it. According to the Court, a statement is material if it is reasonably relevant to the insurer’s investigation of a claim.
Like Bahri, in this case it was physically impossible for the household replacement services to be performed in the manner alleged. Household services claims were submitted when Sarr was in Michigan and plaintiff was in Europe. In addition, plaintiff and Sarr provided sworn testimony that the submitted replacement services reflected that Sarr actually performed the services. In this regard, the Court stated:
“Quite frankly and simply, that was impossible because Sarr and plaintiff were on different continents, an ocean away from one another.”
However, plaintiff maintained that her case could be distinguished from Bahri because, unlike Bahri, the services were actually provided to her – in other words, plaintiff received the replacement care while in Europe, but it was not performed by Sarr. To support this claim, plaintiff provided an affidavit from Sarr after his deposition, stating that he believed he was signing the claim forms on behalf of all providers and that he was confused during his deposition about the meaning of the word “you.” The Court of Appeals rejected this argument, noting that “parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition.” Moreover, even when examining Sarr’s testimony, there was still undisputed evidence that plaintiff had submitted fraudulent claims for household replacement services, the Court concluded. Plaintiff also argued that there could be no fraud because the claims for household services at issue were not supported by a disability slip from a doctor. The Court rejected this argument stating:
“Plaintiff has failed to provide any law to support the suggestion that a claim for household services requires a disability slip for payment, or that the lack thereof can remove a claim that might otherwise be considered fraudulent. Therefore, this issue is abandoned.”
