Michigan Court of Appeals; Docket # 344344; Unpublished
Judges Tukel, Sawyer, and Riordan; 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In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s first-party action to recover no-fault PIP benefits from the defendant, Farm Bureau General Insurance Company of Michigan. The Court of Appeals held that the trial court did not err in concluding that the plaintiff, Richard Gilbreath, committed fraud in his claims for benefits.
Richard Gilbreath alleged that he suffered serious injuries as a result of a motor vehicle collision, resulting in medical bills totaling approximately $400,000. Gilbreath filed a claim for PIP benefits with Farm Bureau, who in turn hired a private investigator to surveil Gilbreath. The surveillance revealed Gilbreath engaged in activities that Farm Bureau argued were inconsistent with his claimed injuries and limitations, and denied Gilbreath’s claims for PIP benefits as a result. In Gilbreath’s subsequent lawsuit against Farm Bureau, the trial court granted summary disposition in favor Farm Bureau, finding that no genuine issue of material fact existed as to whether Gilbreath had committed fraud.
On appeal, Gilbreath first argued that Farm Bureau waived the fraud defense by failing to plead it in its answer, ostensibly because Farm Bureau never actually used the word “fraud” in its filing. The Court of Appeals rejected this argument, finding that numerous of Farm Bureau’s defenses included allegations that Gilbreath’s claims were “fraudulent” and contained “misrepresentations,” each of which were sufficient to plead the fraud defense.
Gilbreath next argued that the trial court erred in concluding that there was no genuine issue of material fact as to whether he committed fraud, and the Court of Appeals again disagreed, noting that Farm Bureau’s investigator observed the plaintiff performing at least one task—mowing the lawn—for which he claimed benefits.
Plaintiff had also signed an affidavit claiming that from the date of the accident in June until the end of August, he required attendant care services for four hours per day, seven days per week. Also submitted was a claim for services provided by plaintiff’s ex-wife for July 2015, which not only included a claim for services on July 2, but also for lawn mowing on July 4 only two days after defendant’s investigator observed plaintiff himself mowing the lawn. Indeed, the claim includes bills for lawn mowing once a week for the entire month of July.
Gilbreath attributed this inconsistency to memory problems caused by his medications, which the Court found unavailing, stating:
He further states that he was able to mow the lawn on July 2, 2015, because of a pain management injection he had received and that mowing the lawn was necessary due to demands by the city. But that explanation is inconsistent with his claim of a need for replacement services for various tasks that day by his ex-wife as well as the claim for his ex-wife to provide replacement services two days later to mow the lawn that had just been mowed.
