Michigan Court of Appeals; Docket # 330062; Unpublished
Judges Stephens, Servitto and Shapiro; Unanimous, per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Fraud/Misrepresentation
CASE SUMMARY:
In this unanimous unpublished per curiam opinion regarding whether plaintiff Kimberly Hatcher (“Hatcher”) committed acts of fraud in violation of her no-fault insurance policy, the Court of Appeals affirmed the trial court’s denial of defendant Liberty Mutual Insurance Company’s (“Liberty Mutual”) motion for summary disposition because a question of fact existed as to whether Hatcher’s acts were fraudulent.
Plaintiff Hatcher was injured in an automobile accident, and subsequently brought this action to recover PIP benefits from her no-fault insurer, Liberty Mutual. Liberty Mutual refused payment of benefits, arguing that in three separate instances, Hatcher had engaged in fraud. Those three instances included: “1) statements plaintiff made at her deposition concerning her past medical history, 2) claims for replacement services that plaintiff submitted, and 3) statements plaintiff made in her interrogatories and deposition concerning her work history.”
As to the statements at Hatcher’s deposition concerning her past medical history, the Court of Appeals found those statements to be, at worst, minor inconsistencies, rather than fraudulent attempts to recover benefits to which she was not actually entitled. For instance, Hatcher testified in her deposition that she had not suffered from neck pain before the accident, despite a record from seven years pre-accident in which she reported “mild neck pain.” Similar, possibly misleading statements were made in regards to Hatcher’s back injuries. The Court ruled that summary disposition was not proper, reasoning as follows:
After review of plaintiff’s deposition and the medical records, it is clear that the records show, at most, minor inconsistencies with plaintiff’s deposition testimony. As an example, defendant cites plaintiff’s testimony that she had not had any complaints of neck pain prior to the accident and contrasts that testimony with emergency room records dated September 16, 2006, which record that plaintiff had “mild neck pain.” This failure to recall an episode of “mild neck pain” from seven years ago is not sufficient to prove fraudulent intent rather than a failure of memory.
Defendant also points to plaintiff’s deposition testimony that she had not experienced any prior back pain from an injury and that she had back pain when she was “younger.” Defendant compares this statement with medical records showing that plaintiff had previous incidents of back pain in 2006. Defendant asserts that plaintiff must have been intentionally misrepresenting a material fact when she said she’d had back pain when she was “younger” because defendant reads “younger” to mean “young.” A jury may agree and conclude that this statement was an attempt to defraud. However, it is not for the court at a summary disposition motion to interpret what the deponent’s statement “really meant.” Indeed, to reach the conclusion defendant urges we would have to make an inference in favor of the moving party, something we are barred from doing.
As to Hatcher’s claims for replacement services, Liberty Mutual argued that the deposition of Hatcher’s live-in partner produced contradictions evincing fraud. The Court disagreed, and found that Hatcher’s partner’s statements, considered in context, were not necessarily inconsistent at all. Liberty Mutual also argued that, because Hatcher assisted her former employer with various tasks after the accident—administering medication, transporting her to various appointments—she could not, therefore, have needed assistance herself. The Court disagreed, again, arguing that evidence of the limited services Hatcher performed for her employer was not dispositive of Hatcher’s need for other replacement services, herself. The Court’s full reasoning as to Hatcher’s claims for replacement services is as follows:
Initially, in his deposition Pearson testified that he started helping plaintiff with household chores immediately after the accident stating that “after the accident I started helping her because she couldn’t do a lot of things, like make the beds up and clean up around the house and wash dishes.” Later in the deposition, after the discussion turned to inquiries regarding how often plaintiff required assistance with personal needs such as bathing, Pearson was asked if he was “helping [plaintiff] out before [her] neck surgery,” to which Pearson stated “no, and she was doing it on her own.” Defendant points to this latter testimony as indication that Pearson’s affidavits for household services were submitted as part of an attempt to fraudulently claim a benefit. However, Pearson’s statement that plaintiff “was doing it on her own” occurred during a portion of the deposition where Pearson had been predominantly questioned about how often plaintiff required assistance with very personal services, such as bathing. In this context, it is reasonable to infer that Pearson understood the question as asking how much help plaintiff required with these sort of personal hygiene tasks immediately after her accident but prior to a later neck surgery. This inference is consistent with Pearson’s testimony early in his deposition where he described the various household services he provided to plaintiff immediately after the accident.
Defendant also states that the affidavits of household services are fraudulent because on a handful of occasions plaintiff worked for her employer, Marilyn Weingarden, in a limited capacity after the accident and so, according to defendant, could not have needed assistance herself. However, Weingarden’s affidavit specifically states that, after plaintiff’s accident, the only services plaintiff was able to provide for her were administering medication and transporting her to various appointments and that this occurred on only 13 days over many months. That plaintiff occasionally assisted Weingarden while receiving help herself is hardly inconsistent and is not grounds to conclude on summary disposition that her request to defendant for payment to Pearson for his work in doing laundry, cooking, and cleaning the house were attempts to fraudulently claim benefits.
As to Hatcher’s statements concerning her work history, Liberty Mutual argued that certain erroneous statements regarding who employed Hatcher at what time were evidence of an intent to defraud. The Court disagreed, primarily for two reasons. The first being that:
Liberty Mutual “[had] not offered an argument as to how the erroneous statements made by plaintiff were material to the amount of the wage loss claim . . . Moreover, defendant does not provide any evidence that plaintiff misrepresented the hourly If the insured is employed as of the date of the accident, her wage loss benefits are defined by the wages earned at that employment. MCL 500.3107 and Popma v Auto Club Ins Ass’n, 446 Mich 460, 468; 521 NW2d 831 (1994). Defendant has not, at least to date, argued that plaintiff was unemployed on the date of the accident. Nor has it disputed the affidavit of Weingarden in which she states that plaintiff began working for her, as her home health aide, a week immediately before the accident and was her employee as of the date of the accident. Moreover, defendant does not provide any evidence that plaintiff misrepresented the hourly pay rate or number of hours per day she worked for Weingarden.
The second being that, “defendant’s arguments regarding fraudulent intent are speculative.” As to a third argument raised by Liberty Mutual, that Hatcher’s false statements to the IRS and a state unemployment agency also indicate an attempt to defraud, the Court concluded: “we fail to see how an allegedly false statement given to the IRS or a state unemployment agency can be seen as a false statement directed at defendant or this claim.”
The Court thus affirmed the trial court’s denial of Liberty Mutual’s motion for summary disposition.
