Michigan Court of Appeals; Docket # 344607, 344833; Unpublished
Judges Kelly, Borrello, and Servitto; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Actual Fraud
SUMMARY:
In this majority unpublished per curiam decision (Borrello, dissenting), the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s first-party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. The Court of Appeals held that trial court correctly ruled, as a matter of law, that the plaintiff, Shawn McIntosh, committed fraud in his claims for attendant care and replacement services. The trial court based its ruling on testimony from McIntosh’s half-sister—who was also involved in the underlying motor vehicle collision and lived with McIntosh afterward—that McIntosh staged the collision, that McIntosh exaggerated his injuries, and that McIntosh fabricated his claims for benefits.
McIntosh was a backseat passenger in a vehicle rented to his half-sister, Shawntia Brown, when the vehicle was struck by an unknown vehicle which fled the scene of the collision. There was only minor damage to the car and the airbags did not deploy, but the traffic crash report indicated that McIntosh was injured and transported from the scene to the hospital. McIntosh allegedly suffered numerous injuries as a result of the collision and claimed to be bedridden for several weeks afterward, with significant restrictions on activities of daily life. He claimed that his cousin provided replacement services and around-the-clock attendant care, and submitted an application for PIP benefits to Elco Insurance, the insurer of the company that rented the subject vehicle to Brown, Enterprise Leasing Company of Detroit.
At a deposition, Brown testified that McIntosh staged the collision, exaggerated both the severity of the collision and his injuries, and lied about the care he was receiving from his cousin. Ultimately, Elco did not pay McIntosh’s claims for PIP benefits, and McIntosh filed suit. Enterprise moved for summary disposition, arguing that all McIntosh’s claims were barred because of fraud, and the trial court agreed.
On appeal, McIntosh argued that the trial court “improperly assessed credibility and weighed evidence in favor of Enterprise Leasing on material issues of whether the collision was an accident or intentional, and whether Brown’s or McIntosh’s version of events was the correct one.” The Court of Appeals disagreed, finding that no reasonable juror could determine, based on the evidence, that either the collision or McIntosh’s alleged injuries were legitimate.
The evidence presented in the present case reveals that McIntosh made fraudulent material representations as to 1) the “accidental” nature of the collision, 2) the extent and nature of his alleged injuries, and 3) the replacement and attendant care services allegedly provided by Prince. Brown, McIntosh’s half-sister, rented the car, was the driver of the car, and was there at the moment of the collision. She testified emphatically as to the “staged” nature of the collision; and her unrefuted testimony was that White was “very apologetic” to her on the scene when she angrily confronted him and McIntosh about staging the collision with her young children in the car. Neither White nor McIntosh denied Brown’s accusations of staging the accident until Enterprise Leasing moved for summary disposition, at which point McIntosh produced a self- serving affidavit stating that he did not stage the collision. Brown asserted that she was well aware that McIntosh and White would run these “kind of schemes,” looking for “accidents.” And, Brown testified that immediately after the accident, McIntosh appeared fine and had his legs out of the car, and only when the ambulance and police showed up did he put his legs back in and adopt facial expressions and actions suggesting he was injured. Moreover, the photo taken of the Versa after the collision shows the minimal damage to the Versa’s bumper, and no damage to the left side passenger door where McIntosh was sitting, even though he claimed that the unknown car ran a stop sign, was coming toward them “fast,” hit them when they were “almost in” the driveway, and that the impact on “the back door of the left side, the driver’s side” was so hard that the car spun. Brown testified that she received a bill from Enterprise Leasing for the damaged bumper in the amount of $400. McIntosh’s testimony is refuted by the photograph as well as Brown’s testimony, and the absence of injury to any other occupant.
McIntosh claimed that he was “bedridden” for 3 to 4 weeks following the collision, that Prince had to stay with him to assist him for “almost 24 hours a day,” and that Prince provided attendant care services approximately 92.3 hours a week from January through April. However, Brown continued to live with McIntosh for one month after the collision, and she asserted that during that time Prince never came to the house and never assisted with anything. Brown testified that McIntosh proceeded with his normal life, never received any attendant care or replacement services at their house, and only wore his neck brace when going outside in public. Additionally, the attendant care services that were documented were in the exact same amounts per task, for each week from January through April, but McIntosh himself testified that he was only “bedridden” for 3 to 4 weeks after the collision, that he moved residences several times, including staying with Prince at her residence for weeks at a time, and also that he improved with physical therapy over time. It is not reasonable to believe that Prince provided the exact same amount of services every week for four months when McIntosh was improving over time. No reasonable jury could conclude that he was so severely injured as to require months of physical therapy, attendant care, and replacement services. Based upon the minor damage to the Versa’s bumper as reflected in the photo, the incredible aspects of McIntosh’s testimony given this photograph, the testimony of Brown, an eyewitness to the collision and to plaintiff’s recovery thereafter, the unreasonable amount of attendant care services documented and submitted by McIntosh, and an IME report, there could be no reasonable belief that the accident occurred as McIntosh claimed or that he suffered injury as claimed, and thus, there was no genuine issue of material fact with respect to the fact that McIntosh fraudulently represented the nature and extent of his injuries.
Justice Borrello dissented, arguing that the majority erred in believing “the testimony of Brown to the exclusion of all contrary evidence.” Furthermore, Justice Borrello stated, “a review of the record in its entirety reveals that questions of fact abound.”
