Michigan Court of Appeals; Docket # 345007; Unpublished
Judges Beckering, Borrello, and Kelly; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Exception for Commercial Vehicles [§3114(2)]
When PIP Claims Through the Assigned Claims Facility May Be Reduced by Benefits from Other Sources [§3172(2)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
This case arose out of an alleged motor vehicle collision involving a nonemergency medical transportation vehicle that was transporting the plaintiff to one of her doctor’s appointments. The plaintiff maintains that she suffered head and back injuries as a result of the collision, but the transportation company and owner of the alleged vehicle involved, Mack Transportation, disputed whether the collision occurred at all. The plaintiff eventually applied for no-fault PIP benefits through the Michigan Automobile Insurance Placement Facility, and subsequently filed a complaint against the MAIPF and the insurer of the alleged vehicle involved, American Country Insurance Company. The Court of Appeals determined that summary disposition could not be properly granted to either defendant, because a question of fact existed as to whether the collision happened and, if so, whether ACIC insured the vehicle involved.
The plaintiff alleges that her health insurance company arranged for Mack Transportation to transport her to her OBGYN appointment on September 9, 2016. A gray or silver vehicle eventually arrived to pick her up, and while en route to the appointment, the plaintiff alleges that her driver rear-ended another vehicle. After the collision, the plaintiff testified that she was transported by an EMS team to the emergency room, where she was released after a “little while.” Five days later, she filed an application for no-fault PIP benefits with the MAIPF.
The owner of Mack Transportation, Rasheen McKnight, testified that the company did own a gray vehicle that was in service on the date in question, and that the vehicle had been at a repair shop since 2016. McKnight also confirmed that ACIC insured all of Mack Transportation’s vehicles. He disputed, however, that any of Mack Transportation’s vehicles were involved in an accident on the date in question, and Mack Transportation’s billing coordinator provided her log sheets ostensibly showing that the plaintiff was never actually picked up for her appointment. The plaintiff eventually filed a complaint against both the MAIPF and ACIC, both of which successfully moved for summary disposition.
The Court of Appeals reversed, finding that a question of fact existed as to whether the collision occurred and, if so, whether ACIC insured the vehicle responsible. The MAIPF argued that, even if the accident did occur, it would have occured while the plaintiff was a passenger of a vehicle insured by ACIC. Therefore, the plaintiff could not claim no-fault PIP benefits through the MAIPF. The Court of Appeals pointed out, however, that there was a question of fact as to whether the plaintiff’s collision involved a car owned by Mack Transportation, or perhaps a car owned by a different transportation company. Thus, there was a question of fact as to whether the plaintiff had “identifiable applicable insurance for the payment of PIP benefits”—if not, she would be statutorily prescribed to apply for such benefits through the MAIPF.
Contrary to the MAIPF’s representations, by the time the MAIPF filed its motion for summary disposition, there had arisen a question of fact as to whether plaintiff was injured in an accident involving a car owned by Mack Transportation. See Innovative Adult Foster Care, Inc, 285 Mich App at 475-476. The MAIPF was fully aware of this dispute, as it had taken the depositions of McKnight and Peoples, both of whom maintained that Mack Transportation did not end up transporting plaintiff on the day of the accident. In addition, plaintiff acknowledged the dispute by denying the MAIPF’s statement, “In the instant case, there is no question that personal protection insurance has been identified and would be applicable to the injury in question, if it occurred.” Moreover, in its response in opposition to the MAIPF’s motion for summary disposition, the ACIC denied as untrue the MAIPF’s assertions that McKnight testified that plaintiff was in a Mack Transportation vehicle on the date of the accident, that ACIC was identifiable and applicable as the insurer of the vehicle allegedly involved in the accident, and that the MAIPF was entitled to judgment as a matter of law. ACIC contended that its insured did not transport plaintiff on the date of the accident and attached as supporting documents pages from Peoples’s deposition transcript where she explained that a name crossed off a daily trip log meant that the ride had not happened, as well as the daily trip log showing plaintiff’s name crossed off. Finally, ACIC’s motion for summary disposition based on the same arguments it advanced in opposition to the MAIPF’s motion was also pending at the time the trial court decided the MAIPF’s motion for summary disposition.
Plaintiff’s denial of certain of the MAIPF’s assertions, McKnight’s deposition testimony, which the MAIPF attached to its motion, and the ACIC’s response and evidence in opposition to the MAIPF’s motion clearly indicated that there existed a question of fact regarding whether plaintiff was in a Mack Transportation vehicle when the alleged accident occurred, or some other transport company’s vehicle. Viewing this evidence in the light most favorable to plaintiff supports the conclusion that there existed a genuine question of material fact regarding whether plaintiff had identified applicable insurance for the payment of PIP benefits. The lack of PIP insurance applicable to an injury and the failure to identify applicable insurance are statutorily prescribed reasons to file a claim with the MAIPF. MCL 500.3172(1)(a) and (b). Accordingly, the trial court erred in granting the MAIPF’s motion for summary disposition.
The Court of Appeals also vacated the trial court’s grant of ACIC’s motion for summary disposition, because although certain evidence suggested that the collision never actually occurred, it failed to account for other evidence that suggested it did. For instance, although the plaintiff could not produce a police or EMS report, and the only hospital records were from a different hospital than the one the plaintiff was allegedly transported to directly from the scene, those records did state that the plaintiff had been involved in a motor vehicle collision earlier in the day. Similarly, Mack Transportation’s billing coordinator argued that the billing logs, showing that the plaintiff was never billed for her trip, prove that the trip must have been cancelled before it began. The Court of Appeals determined, however, that such evidence was not dispositive of the possibility that the plaintiff was never charged for her trip because the transport vehicle was involved in a collision.
Other evidence included the daily trip log which did not bear the plaintiff’s signature, and the fact that the plaintiff did not recall seeing any Mac Transportation decals on the alleged vehicle. The Court reasoned that perhaps the plaintiff was picked up without first being asked to sign the log, and perhaps failed to notice the Mack Transporation decals. These possibilities created a question as to whether the trip actually occurred or not.
Viewing the evidence in the light most favorable to plaintiff, ACIC has not established that there is no genuine issue of material fact as to whether the alleged accident actually happened. See Lowrey, 500 Mich at 9. Certainly, there are gaps in plaintiff’s evidence, potentially fatal ones. ACIC correctly points out that, despite testifying that both the police department and the fire department responded to the accident, plaintiff has not presented a police report for the accident or any documentation substantiating that she went by EMS ambulance to a hospital emergency room immediately after the accident. Nor is there any record evidence of loss associated with injury or the need for services. Nevertheless, plaintiff did testify in some detail to the accident, and she did present provider notes from a visit to the emergency room at the Oakwood Heritage Hospital that aligned with the essence of her testimony.
. . .
ACIC’s argument that the absence of certain evidence suggests that the evidence does not exist and the accident did not occur, fails to account for the evidence that does exist. Even without a substantiating police report or documentation that she went by ambulance to Oakwood Dearborn Hospital, plaintiff’s deposition testimony and the September 9, 2016 provider notes from Oakwood Heritage Hospital create a genuine issue of material fact as to whether the accident occurred. To conclude otherwise would require discrediting plaintiff’s testimony, as well as her statements to Oakwood Heritage Hospital, and ignoring the circumstantial evidence supporting it. See Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994) (indicating that a court may not weigh credibility in deciding a motion for summary disposition); Bergen v Baker, 264 Mich App 376, 387; 691 NW2d 770 (2004) (indicating that circumstantial evidence can create a factual issue for trial). For this reason, we reject ACIC’s position that it is entitled to summary disposition because there is no question that the accident never happened.
. . .
The daily trip log and the LogistiCare WBR both show that Mack Transportation did not bill for plaintiff’s trip. Peoples interprets the documents as indicating that plaintiff’s trip was cancelled before it began. However, viewed in the light most favorable to plaintiff, Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012), the evidence does not necessarily dictate this conclusion. There is no dispute that Meridian Health arranged, through LogistiCare, for Mack Transportation to drive plaintiff to her doctor’s appointment. Nor is it disputed that Mack Transportation accepted the request and scheduled a pickup for plaintiff and that plaintiff’s trip was not completed and not billed. The question is whether plaintiff’s trip was not completed and not billed because the Mack Transportation vehicle in which she was riding was involved in an accident or because the trip was cancelled before it began.
. . .
We acknowledge that the record contains evidence potentially weighing in favor of Peoples’s conclusion that plaintiff’s trip never began. Arguably, the fact that plaintiff’s signature does not appear on the daily trip log could be interpreted as indicating that her trip was cancelled before it began. Plaintiff testified that whenever a transport vehicle arrives, “you sign a sheet, and you get in and go to your appointment.” Peoples testified that, in order to receive payment for the trip, Mack Transportation has to provide a pickup time, a drop-off time, and the client’s signature, and that she could not remember a driver ever forgetting to get the client’s signature.
Plaintiff did not sign the trip log. This could mean that Mack Transportation did not pick her up. However, it might also mean that the driver for Mack Transportation picked her up without first getting a signature. Plaintiff testified that the driver did not “really have a conversation with me as I got into the vehicle,” did not welcome her when she got into the car, and was distracted by her cell phone during the entire trip. Peoples testified to the necessity of a signature, but not to the procedure followed by Mack Transportation drivers when picking up a client, and plaintiff’s testimony about procedure was general. There is no reason to believe that if a Mack Transportation driver did not get a signature at the start of a trip, he or she could not get it during or after the trip. And given plaintiff’s description of her distracted driver, a reasonable juror could conclude that she may have neglected to obtain plaintiff’s signature at the start of the trip, but intended to rectify the situation at some point during or after completion of the trip, had the trip been completed. In other words, while the absence of plaintiff’s signature on the daily trip log could be seen as evidence that Mack Transportation did not transport plaintiff, the record contains testimony that, if believed, could explain why plaintiff’s signature was not on the daily trip log.
ACIC contends that plaintiff’s own testimony establishes that Mack Transportation did not pick her up. McKnight testified that Mack Transportation vehicles have the company’s name and phone number on them. According to ACIC, plaintiff testified that “the vehicle she was in on the date of the supposed accident date [sic] did not have any decals or logos that would identify the vehicle as being a Mack Transportation vehicle.” ACIC contends that plaintiff’s testimony about the lack of badging, along with her acknowledgement that other transportation companies also transported her to appointments, establishes that she was not in a Mack Transportation vehicle at the time of the accident.
However, ACIC’s position misrepresents plaintiff’s testimony and is speculative. Ultimately, plaintiff testified that she did not know whether the transport car had Mack Transportation markings or not. Moreover, plaintiff’s failure to recall whether the transport vehicle displayed the Mack Transportation logo does not establish that she was not in a Mack Transportation vehicle. In addition, that another transport company picked plaintiff up is possible, but speculative, given that the undisputed record evidence shows that LogistiCare arranged with Mack Transportation to pick her up, Mack Transportation accepted the assignment, and nothing in the record shows that Meridian Health or LogistiCare withdrew the request or scheduled another carrier to transport plaintiff.
