Michigan Court of Appeals; Docket #354066; Unpublished
Judges Stephens, Kelly, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Vivian Buford’s first-party action against Defendant Esurance Property & Casualty Insurance Company (“Esurance”). The Court of Appeals held that Buford failed to present sufficient evidence to create a question of fact as to whether her claimed injuries were caused by the subject motor vehicle collision pursuant to MCL 500.3105(1).
Buford was allegedly injured in a motor vehicle collision but did not seek treatment until approximately one month thereafter. She subsequently filed a claim for no-fault PIP benefits with Esurance, in which she responded “not certain” to a query regarding whether she had any pre-existing injuries in her back, neck, or knees. At a later deposition, Buford testified that she did not have any pre-existing injuries in these areas. Esurance ultimately obtained Buford’s medical records, which revealed an extensive history of knee, back, and neck pain, including a prescription for a cane, walker, and pain medication. Based on these records, Esurance moved for summary disposition, arguing that Buford’s injuries did not arise of the subject motor vehicle collision, that she had committed fraud in her claim for PIP benefits, and that she failed to show that she incurred costs for replacement services and attendant care. Buford responded to Esurance’s motion arguing only that she had not committed fraud; she did not contest Esurance’s allegation that her injuries did not arise out of the subject collision. As a result, the trial court granted Esurance’s motion.
The Court of Appeals affirmed the trial court’s summary disposition order, as Buford’s only argument on appeal was that the trial court erred in concluding that her injuries did not arise out of the subject collision for purposes of MCL 500.3105(1). The Court of Appeals noted, however, that Buford “did not ‘dispute in any meaningful way [Esurance’s] argument that her current injuries predated the March 2018 accident, much less cite any evidence to refute [Esurance’s] contention’ ” in her response to Esurance’s motion. Esurance presented evidence in its motion that Buford’s injuries did not arise out of the collision, which shifted the burden onto Buford to present competing evidence to create a question of fact as to whether her injuries were, in fact, the result of the collision. Buford, however, did not so much as offer an argument as to this issue in her response brief.
"With respect to the first question, we conclude that defendant properly identified evidence indicating that plaintiff’s injuries did not arise out of the automobile accident. Defendant’s brief in support of its motion for summary disposition states that ‘[p]laintiff’s multitude of pre-accident medical records and allegations of injury mirror her pre-accident complaints.’ Specifically, defendant pointed out that ‘[p]laintiff was suffering from severe head, neck, back, and knee injuries and pain for at least 20 years before the accident.’ Yet, after the accident, defendant notes that plaintiff complained of the same or similar conditions, which she stated arose from the accident. Defendant supported this position with a number of exhibits showing that plaintiff’s preexisting injuries were similar to her postaccident complaints. Given the extensive nature of the medical documentation showing plaintiff’s preexisting medical conditions, defendant met its initial burden as the moving party under MCR 2.116(C)(10).
With respect to the second question, because we conclude that defendant met its initial burden for summary disposition, the burden then shifted to plaintiff to establish a genuine question of material fact with respect to whether her injuries arose out of the automobile accident. Quinto, 451 Mich at 362-363. In this case, plaintiff’s response to defendant’s motion for summary disposition solely argued that she had not committed fraud when she submitted the claim to defendant for PIP benefits. Nowhere in her brief did she respond to or argue against defendant’s assertion that her injuries did not arise out of the automobile accident. Nor did plaintiff provide any supporting documentation to the brief showing that her injuries arose out of the accident. In short, there is nothing in the lower court record to indicate that plaintiff even attempted to establish a factual dispute in response to defendant’s motion for summary disposition, let alone present ‘documentary evidence establishing the existence of a material factual dispute.” Id. Accordingly, the trial court did not err by granting defendant’s motion for summary disposition on the basis that ‘it is beyond factual dispute that [p]laintiff’s injuries are not attributable to the March 2018 accident.’ "
