Michigan Court of Appeals; Docket #345866; Unpublished
Judges Beckering, Fort Hood, and Shapiro; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Actual Fraud
Fraud/Misrepresentation
SUMMARY:
In this majority unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s first-party claim for no-fault PIP benefits, uninsured motorist benefits, and loss of consortium on the basis of fraud. The Court of Appeals held that the plaintiff, Andy Saleh, failed to present sufficient evidence to create a question of fact as to the defendant’s contention: that Saleh intentionally crashed his vehicle in the hopes of recovering the aforementioned benefits afterward. The Court of Appeals also held that the defendant’s failure to turn over the Event Data Recorder (EDR) from the vehicle Saleh crashed did not render the trial court’s summary disposition order premature, because Saleh failed to establish that, had he received the EDR in discovery, he would have stood “a fair chance of uncovering factual support for [his] position.”
Andy Saleh alleged that he was injured as the result of a hit-and-run collision in which another driver struck either the rear or side of his Jeep, causing him to veer off the road and into a concrete barrier. Saleh sought no-fault PIP benefits and uninsured motorist benefits from his insurer, Safeco Insurance Company of Illinois, but Safeco hired a collision reconstructionist who inspected the Saleh’s Jeep, downloaded the Jeep’s EDR, and determined that the collision did not occur in the manner described by Saleh. Rather, Safeco’s reconstructionist opined that the evidence and data were consistent with an intentionally caused collision. Saleh later filed a three-count complaint against Safeco for PIP benefits, UM benefits, and loss of consortium, and Safeco moved for summary disposition, invoking the fraud provision in Saleh’s policy. One day before oral arguments on Safeco’s motion—the last day of discovery—Saleh filed a motion to compel discovery of the EDR data, but the trial court proceeded to grant Safeco’s motion before hearing Saleh’s motion to compel. Saleh filed a motion for reconsideration, in which he attached an affidavit from his own collision reconstructionist—who opined that, in his “expert opinion, [Safeco’s collision reconstructionist] interpreted the data that was most beneficial to his argument and . . . failed to address some of the other data elements in the report that may have been relevant to this case”—but the trial court rejected that motion as well.
The Court of Appeals affirmed the trial court’s summary disposition in favor of Safeco, noting that the only evidence Saleh presented to confirm his version of events was his own testimony. Moreover, Saleh “produced no evidence to correlate [his] version of the accident with the uncontested data culled from the Jeep’s own EDR, which showed that the accident did not happen the way Mr. Saleh described.”
Saleh also argued on appeal that the trial court’s summary disposition order was premature because discovery was incomplete and because Safeco had intentionally withheld discovery of the EDR data to prevent Saleh from obtaining his own expert to analyze its data. The Court of Appeals again disagreed, holding that Saleh failed to show that “earlier discovery of the EDR’s raw data stood ‘a fair chance of uncovering factual support for [his] position.’” Saleh professed his desire to have his own expert examine the EDR data, but “presented no evidence that [he] had hired or consulted an expert or that the expert’s independent analysis of the data would result in evidence sufficient to survive summary disposition.” Moreover:
Considering the affidavit from Timothy Brown that plaintiffs attached to their motion for reconsideration does not change the outcome. Brown opined that “Mr. Parker interpreted the data that was most beneficial to his argument” and “failed to address some of the other data elements in the report that may have been relevant to this case.” Brown did not take specific issue with any of the data included in the report, nor did he dispute Parker’s conclusions from that data or point to anything in the report that is false. With regard to these “other data elements,” Brown suggests no more than that they “may have been relevant to this case.” He does not indicate that they would have called into question any of Parker’s conclusions about the inconsistency of the EDR data with Mr. Saleh’s version of events, or the apparent intentionality of the two EDR-recorded collisions. In short, Brown’s affidavit is insufficient to show that his analysis of the EDR would have “st[oo]d a fair chance of uncovering factual support for [plaintiffs’] position.” Marilyn Froling, 283 Mich App at 292. Thus, even if plaintiffs had submitted Brown’s affidavit prior to the hearing on defendant’s motion for summary disposition, nothing in the affidavit, viewed in the light most favorable to plaintiffs, raises a genuine issue of material fact regarding whether Mr. Saleh materially misrepresented the circumstances of the collision. On this record, we conclude that the trial court did not err in granting defendant’s motion for summary disposition.
