Michigan Court of Appeals; Docket #348649; Unpublished
Judges Swartzle, Gleicher, and Kelly; 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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing the plaintiff’s first-party action to recover no-fault PIP benefits on the basis of fraud, and remanded for further proceedings. The Court held that there remained genuine issues of material fact with regard to whether the plaintiff, Dillon Hoeft, and his mother submitted fraudulent claims for attendant care benefits, and that summary disposition on the issue of fraud was therefore improper.
Dillon Hoeft was struck by a motor vehicle while a pedestrian, and at the time he was struck, he was still a minor and no one in his home had a policy of no-fault insurance. He thus claimed no-fault PIP benefits under the policy belonging to the driver of the vehicle that struck him, Progressive Michigan Insurance Company. Progressive paid for daily 24-hour attendant care at first—to be provided primarily by his mother, but also by his stepfather, sister, and grandmother—but ultimately discontinued payments after attendant care was deemed unnecessary by Progressive’s medical examiner. Hoeft and his mother then filed a complaint against Progressive based on its failure to pay for the attendant care provided to Hoeft, and Progressive moved for summary disposition, arguing that Hoeft submitted fraudulent claims for attendant care benefits. Progressive had surveilled Hoeft and Hoeft’s family on several dates for which he claimed to have received attendant care services, and Progressive concluded, based on the results of that surveillance, that several of Hoeft’s claims misrepresented the particulars of his care. The trial court agreed, and granted Progressive’s motion.
The Court of Appeals reversed the trial court’s summary disposition order in Progressive’s favor, finding that questions remained as to whether Hoeft did, in fact, submitted fraudulent claims for attendant care benefits. Progressive’s first allegation of fraud was premised on Hoeft’s job coach’s notes on dates for which Hoeft was claiming at least 20 hours of attendant care services. In one note, for example, Hoeft’s coach stated that he was in jail, and that his “mother said he went fishing last night and hasn’t heard from him.” The Court of Appeals held that the job-coach’s note contained a factual dispute: whether Hoeft and his mother were simply making excuses for Hoeft missing work.
When viewed in the light most favorable to the non-moving party, we conclude that the job-coach’s note contains a factual dispute: Hoeft reported being jailed and his mother reported that he was fishing. That discrepancy, coupled with the fact that a jury could reasonably infer that Hoeft was simply making excuses for missing work, is a fact question that precludes granting summary disposition under MCR 2.116(C)(10). In addition, Hoeft stated in his 2017 deposition that he has never spent a night in jail. Further, Hoeft’s mother testified although she knew of “one time” that Hoeft was arrested it happened “at least two years ago.” Therefore, to the extent that the court found no question of fact relating to the alleged June 2016 fraud, the trial court erred because it did not properly view the evidence in the light most favorable to Hoeft and his mother.
Progressive’s second allegation of fraud was premised on surveillance footage on dates for which Hoeft claimed to have received 24 hours of attendant care services, showing Hoeft’s mother and stepfather “outside Hoeft’s presence”: specifically, there were photographs of Hoeft’s mother doing chores outside, running short errands, etc. The Court of Appeals noted, however, that Hoeft’s mother testified to leaving him alone for short periods of time, and not being in the same room with him at all times of day, but that she would not subtract those short periods from her attendant-care forms. Viewing the competing evidence in the light most favorable to Hoeft, the Court of Appeals held that, “a reasonable jury could determine that Hoeft’s mother was attempting to accurately account for the time she spent providing attendant care . . .”
Viewing the above in the light most favorable to the non-moving party, a reasonable jury could determine that Hoeft’s mother was attempting to accurately account for the time she spent providing attendant care and the time that Hoeft’s stepfather provided attendant care. At times, she provided that care when Hoeft was outside her presence—such as when he called her while she was at work—but she would not include that time on the attendant-care forms. At times, she allowed others—including Hoeft’s sister—to care for him for short periods of time, but she did not subtract that time from the time she represented that she provided attendant care to Hoeft. Taken together, if a jury found credible the investigator’s contention that Hoeft’s mother and stepfather were outside his presence at times in October/November 2016, the jury could also find credible Hoeft’s mother’s testimony that she believed the forms were accurate. A jury could also determine that, although the attendant-care forms contained discrepancies, when Hoeft’s mother completed them she did so based on her belief that the forms were accurate and so she did not intend to defraud Progressive.
Progressive’s third allegation of fraud was premised on a report from their investigators in which they purported to have observed an individual matching Hoeft’s description assisting a woman with moving items from one residence to another, outside the presence of either his mother or stepfather, on dates for which he claimed to have received 24-hour attendant care services from both his mother and stepfather. The Court of Appeals held that the investigators were making a factual testimony that the individual they were surveilling was, in fact, Hoeft, but that such a factual determination ought to be left to a jury.
Yet, at the same time, it is evident that the investigator made a factual determination that the individual that was being surveilled was Hoeft. The trial court relied on that factual determination by the investigator and used it to find Hoeft committed fraud. Hoeft, however, testified that he did not drive and did not have a driver’s license. If the jury chose to credit Hoeft’s testimony, and if it did not find credible the investigator’s determination that the individual depicted driving the vehicle was, in fact, Hoeft, then the surveillance report for August/September 2017, like the report for October/November 2016, merely shows that his caregivers are occasionally outside his presence. Because it is inappropriate to make credibility determinations when reviewing a motion for summary disposition under MCR 2.116(C)(10), we conclude that the trial court erred by finding that Hoeft and his mother made a fraudulent statement in connection with the challenged August/September 2017 dates. Surveillance can show uncontroverted fraud. It does not always do so. In this case, viewing the evidence in the light most favorable to the non- moving party, the surveillance records are insufficient to establish clear evidence of fraud and the absence of a disputed question of material fact.
