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Dresaj v Farm Bureau Gen Ins Co of Mich (COA – UNP 5/3/2018; RB #3745)

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Michigan Court of Appeals; Docket # 337236; Unpublished
Judges Borrello, Sawyer, and Jansen per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 


STATUTORY INDEXING: 

TOPICAL INDEXING:
Actual Fraud
Evidentiary Issues


CASE SUMMARY:
In this per curiam opinion, the Court of Appeals upheld the trial court’s grant of summary disposition for Defendant Farm Bureau General Insurance Company (“Farm Bureau”) regarding the issue of fraud. The Court upheld the grant of summary disposition because it found that Plaintiff Ana Dresaj’s (“Dresaj”) clearly committed fraud by claiming she could not work, when she actually did perform work.  The Court further found that the fact Plaintiff was not actually paid for the work she performed did not create a genuine question of material fact as to whether she committed fraud by telling her insurance company she could not work. 

Dresaj was involved in a traffic accident and suffered injuries to her neck, back, and shoulders. Dresaj had worked as a manager at Zorba’s Grill (“Zorba’s”) before her accident. Dresaj claimed that she was unable to continue her work at Zorba’s after the accident because of her injuries. Dresaj accepted a housekeeping positing at Beaumont Health System on March 14, 2016. Dresaj earned less money than she did at Zorba’s and so she sought work loss benefits for the difference. A private investigator observed Dresaj working at Zorba’s on May 14, 2016. Pursuant to the anti-fraud clause of the contract Farm Bureau refused to pay benefits. Dresaj claimed that she did not earn any income while working at Zorba’s on May 14, 2016. The trial court found it immaterial whether she earned income at Zorba’s or not because she represented that she was unable to work there. The trial court thus granted summary disposition for Farm Bureau.

The Court of Appeals upheld the trial court’s grant of summary disposition agreeing with the court that Dresaj made a material misrepresentation, whether she was paid or not. The Court first dismissed Dresaj’s evidentiary motions because it found the issues were moot. The Court then found that the video surveillance provided by Farm Bureau clearly showed Dresaj working at Zorba’s because Dresaj admitted as much. The only way in which Dresaj tried to distinguish herself was by arguing that she did not get paid. However, the Court found that this did not matter because Dresaj represented that she was physically unable to return to work at Zorba’s. There was no doubt that Dresaj physically worked at Zorba’s on a day when she said that she could not do so. Thus, the fraud occurred and her payment for the work was immaterial.

“In support of its motion for summary disposition, defendant submitted surveillance video and reports showing plaintiff working at Zorba’s on May 28, 2016. Plaintiff or her counsel do not dispute that plaintiff is the individual shown in the surveillance video working at Zorba’s. In an attempt to explain her presence at Zorba’s on the date in question, plaintiff submitted an affidavit with her response to defendant’s motion for summary disposition, admitting that on May 28, 2016, she provided assistance at Zorba’s. Plaintiff maintained, however, that she did not get paid for her assistance. In essence, plaintiff argues that because she did not get paid for the work she did at Zorba’s, she did not fraudulently misrepresent the extent of her injuries relating to her differential work loss claim. However, given plaintiff’s deposition testimony, that she could not physically return to work at Zorba’s, the trial court did not err by declining to consider plaintiff’s contrary affidavit, stating that on May 28, 2016, she was assisting at Zorba’s but did not get paid.”

Thus, the Court upheld the trial court’s grant of summary disposition against Dresaj.

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