Michigan Court of Appeals; Docket #352373; Unpublished
Judges Ronayne Krause, Riordan, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
TOPICAL INDEXING:
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Denise Darnell Lippett’s first-party action against Defendant Cincinnati Insurance Company (“Cincinnati”), affirmed the trial court’s summary disposition order dismissing Lippett’s uninsured motorist claim against Cincinnati, and affirmed the trial court’s grant of Defendant Auto-Owners Insurance Company’s (“Auto-Owners”) motion to dismiss Lippett’s action against Auto-Owners. The Court of Appeals held, with respect to Cincinnati’s motion for summary disposition as to Lippett’s claims for no-fault PIP benefits, that the trial court erred by ruling that Lippett could only recover for the injuries that she explicitly listed on her original application for benefits after the subject motor vehicle collision, and remanded for further proceedings regarding the evidence that established Lippett may have sustained injuries in addition to those listed on her original application. MCL 500.3105(1) provides that an injured person can recover for any injuries that arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, and there is nothing in the statute that says an injured person can only recover for the injuries she explicitly enumerates in her original application for benefits. With respect to Lippett’s uninsured motorist claim against Cincinnati, the Court of Appeals held that the trial court did not err in ruling that Lippett failed to produce sufficient evidence that the other drivers involved in the subject collision were, in fact, uninsured, and that summary disposition for Cincinnati as to Lippett’s UM claim was therefore properly granted. With respect to Auto-Owners, the Court of Appeals held that dismissal of Lippett’s claim against Auto-Owners was warranted given Lippett’s counsel’s repeated, willful discovery violations.
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Denise Darnell Lippett’s first-party action against Defendant Cincinnati Insurance Company (“Cincinnati”), affirmed the trial court’s summary disposition order dismissing Lippett’s uninsured motorist claim against Cincinnati, and affirmed the trial court’s grant of Defendant Auto-Owners Insurance Company’s (“Auto-Owners”) motion to dismiss Lippett’s action against Auto-Owners. The Court of Appeals held, with respect to Cincinnati’s motion for summary disposition as to Lippett’s claims for no-fault PIP benefits, that the trial court erred by ruling that Lippett could only recover for the injuries that she explicitly listed on her original application for benefits after the subject motor vehicle collision, and remanded for further proceedings regarding the evidence that established Lippett may have sustained injuries in addition to those listed on her original application. MCL 500.3105(1) provides that an injured person can recover for any injuries that arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, and there is nothing in the statute that says an injured person can only recover for the injuries she explicitly enumerates in her original application for benefits. With respect to Lippett’s uninsured motorist claim against Cincinnati, the Court of Appeals held that the trial court did not err in ruling that Lippett failed to produce sufficient evidence that the other drivers involved in the subject collision were, in fact, uninsured, and that summary disposition for Cincinnati as to Lippett’s UM claim was therefore properly granted. With respect to Auto-Owners, the Court of Appeals held that dismissal of Lippett’s claim against Auto-Owners was warranted given Lippett’s counsel’s repeated, willful discovery violations.
Lippett was involved in a motor vehicle collision in which she fractured her wrist and sustained back, neck, and shoulder injuries. As a result of her pain in these areas, Lippett received epidural injections. She applied to Cincinnati for her PIP benefits, but listed only her wrist injury on her application. Cincinnati thereafter refused to pay for any treatments she received for her neck and back injuries and moved for summary disposition in her subsequent first-party action, arguing that she could only recover for the injuries she explicitly enumerated in her original application for benefits. The trial court agreed, “reasoning that the only injury [Lippett] suffered in the September 12 accident was, as a matter of law, the injury to her wrist because that is the only injury she listed in her application for benefits after that accident.”
Lippett also filed a claim for UM benefits against Cincinnati, and Cincinnati moved for summary disposition, arguing that Lippett failed to present sufficient evidence that the other drivers involved in the collision were uninsured. In support of her claim, Lippett produced only a police report which stated that the other drivers did not provide their insurance information, and further argued that, because she obtained a default judgement against the other drivers, that that conclusively established that they were uninsured. The trial court disagreed and granted Cincinnati’s motion with respect to Lippett’s UM claim.
The trial court next granted Auto-Owners’ motion to dismiss Lippett’s claims against Auto-Owners because Lippett engaged in numerous discovery violations, including failing to attend an IME. Auto-Owners was added as a defendant to the case almost a year after it was filed and approximately three months after discovery had closed under the original scheduling order. After being named as a defendant, Auto-Owners filed a motion for Lippett to disclose the amount she sought from Auto-Owners, and served interrogatories and requests for production on Lippett to ascertain the support she had for her claims. Lippett produced nothing until Auto-Owners filed a motion to compel, to which Lippett responded by stipulating that she would provide the requested information by May 2, 2019. She did not, however, end up producing any information until December 5, 2019, the day before the hearing on Auto-Owners’ motion to dismiss. In the interim, the parties submitted to case evaluation, but Lippett did not so much as mention Auto-Owners nor her claims against it in her case evaluation summary. Additionally, when Auto-Owners attempted to schedule an IME, Lippett did not attend. Then, “the grand finale” of Lippett’s counsel’s discovery violations, according to the trial court, was not appearing for the hearing on Auto-Owners’ motion to dismiss. Based on these repeated violations, the trial court determined that a lesser sanction was not appropriate, and that dismissal was warranted.
On appeal, the Court of Appeals first reversed the trial court’s ruling with respect to Lippett’s first-party action against Cincinnati. The Court of Appeals held that MCL 500.3105(1) does not limit an insured’s PIP benefits to only those which relate to injuries she expressly lists on her application for benefits. Rather, MCL 500.3105(1) allows an insured to recover for any injuries that arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. Since Lippett produced sufficient evidence that she injured her neck and back as a result of the collision, the trial court could not rule as a matter of law that she was not entitled to benefits for those injuries merely because she did not list them on her original application for benefits.
"Plaintiff is not limited to recover only those injuries listed on an application for benefits after the September 12, 2017 accident, but instead can recover for any injury from the September 12 accident that arose out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle. See MCL 500.3105(1). Plaintiff presented sufficient evidence to establish a question of fact whether she suffered more injuries than just the injury to her wrist as a result of the September 12, 2017 accident. Specifically, plaintiff claimed in her deposition that she injured her wrist, neck, and shoulder during the September 12, 2017 accident. Plaintiff’s assertion was supported by various medical records and doctors’ notes."
The Court of Appeals affirmed the trial court’s summary disposition order in favor of Cincinnati as to Lippett’s UM claim, however, because Lippett did not present sufficient evidence that the other drivers involved in the collision were uninsured. The police report indicated that the other drivers did not provide their insurance information, but the Court held that that did not conclusively prove that they were, in fact, uninsured. Moreover, the Court held that Lippett’s argument that the default she obtained against the other drivers proved they were uninsured was unavailing, for two reasons:
"First, a default is different from a default judgment, and plaintiff is conflating the meaning of the two. Second, even if plaintiff obtained a default judgment against the other drivers, her claim against those drivers had nothing to do with whether they were insured, so a judgment on her claim against those drivers would not establish that they were, in fact, uninsured."
Lastly, the Court of Appeals affirmed the trial court’s grant of Auto-Owners’ motion to dismiss, noting that the trial court considered the relevant factors set forth in Dean v Tucker, 182 Mich App 27 (1990) for determining appropriate discovery sanctions. For instance, the Court of Appeals held that the trial court properly concluded that Lippett’s discovery violations were willful in light of the aforementioned stipulation and the fact that Lippett did not honor it. Moreover, the Court of Appeals held that the trial court properly concluded that Auto-Owners was prejudiced by Lippett’s repeated violations, because, “almost a year after Auto-Owners was brought into the action and less than two months before trial was to begin, Auto-Owners was prevented from conducting an adequate investigation into plaintiff’s claim and could not reasonably be expected to mount an informed defense against plaintiff’s claim.” Lastly the Court of Appeals held that the trial court properly considered the appropriateness of lesser sanctions, and that its ultimate determination that dismissal was warranted was “within the range of principled outcomes.”
