Michigan Court of Appeals; Docket #355683; Unpublished
Judges Borrello, Markey, and Servitto; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to PIP Benefits: Motor Vehicle Involvement [§3105(1)]
Determination of Domicile [§3114(1)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed three separate orders of the trial court: that which granted Plaintiff Harbans Kaur’s motion for summary disposition on the issue of whether her injuries arose out of the use of a motor vehicle as a motor vehicle for purposes of MCL 500.3105; that which granted Defendant Meemic Insurance Company’s (“Meemic”) motion for summary disposition on the issue of Kaur’s domicile at the time of the subject incident; and that which denied Defendant Citizens Insurance Company of the Midwest’s (“Citizens”) motion to compel supplementation of discovery and, specifically, to depose Kaur a second time and have her undergo another insurance medical examination (IME). Regarding Kaur’s motion, the Court of Appeals held that a question of fact existed as to whether Kaur’s injuries arose out of the use of a motor vehicle as a motor vehicle, considering there was conflicting testimony (1) as to whether Kaur was a struck by a vehicle at all, and (2) whether Kaur needed to take evasive action to avoid the oncoming vehicle she claimed struck her. Regarding Meemic’s motion, the Court of Appeals held that a question of fact existed as to whether Kaur was domiciled in Canada at the time of the subject incident, or with her son/Meemic’s insured, Jagdeep Singh, in Canton, Michigan. Regarding Citizens’s motion, the Court of Appeals held that the trial court abused its discretion when it ruled that Citizens could not re-depose Kaur or order that Kaur undergo another IME, considering that the various appellate proceedings in this case took several years to resolve, leaving Citizens without a full understanding of the present status of Kaur’s injuries and claims.
Harban Kaur claimed that she was injured as a result of a motor vehicle striking her as she walked across the road. The driver of the motor vehicle, Kishore Yerukola, testified that he was driving approximately 15 miles per hour when he noticed Kaur walking across the street with her head down. He further testified that, upon noticing his vehicle approaching, Kaur “hurried to turn and go back the way she came and fell (and injured herself) in the process.” As to whether his vehicle ever made contact with Kaur’s person, Yerukola claimed that it did not, and that he came to a complete, controlled spot before reaching the area where Kaur had fallen. After the incident, Kaur filed a first-party action against Meemic, the no-fault insurer of her son, Jagdeep Singh, and a separate action against Citizens, Yerukola’s no-fault insurer. The trial court denied Citizens’ motion to consolidate the two lawsuits but allowed Citizens to file a claim in the second lawsuit against Meemic. The trial court then granted summary disposition in Meemic’s favor on the issue of domicile in the first lawsuit, and subsequently granted summary disposition in Meemic’s favor in the second lawsuit, as well, based on res judicata. On appeal, the Court of Appeals held that res judicata did not apply and remanded the case back to the trial court. The trial court then vacated its summary disposition order in the first case and consolidated the two cases. After consolidation, Meemic again moved for summary disposition on the issue of domicile; Kaur moved for summary disposition on the issue of motor vehicle involvement; and Citizens moved to compel Kaur to submit to further discovery, including an additional deposition and IME. The trial court granted Meemic’s and Kaur’s motions and granted in part, and denied in part, Citizens’s motion.
The Court of Appeals reversed all three orders of the trial court, turning first to the issue of motor vehicle involvement. The Court noted that even if Yerukola’s vehicle did not make physical contact with Kaur, there would still be sufficient motor vehicle involvement for purposes of MCL 500.3105 if Kaur’s injuries were the result of her attempt to take evasive measures to avoid being struck by the vehicle, so long as “an objective person in [Kaur’s] position would have concluded that there was a need to take evasive measures.” Given the conflicting testimony of Kaur and Yerukola, the Court held that a question of fact existed on that issue.
“It is true that Yerukola’s vehicle, after braking, appears to have come to a stop close to plaintiff. From Singh’s vantage point, which was approximately 50 feet from the rear of the vehicle but off to an angle, he could not see plaintiff lying in the road in front of the stopped vehicle and was only was able to see her after running up close to the location, indicting she was very close to the vehicle. And plaintiff testified that when she regained consciousness, she saw that she was ‘lying in front of the car.’ Thus, the situation could be one in which the vehicle posed an immediate danger to plaintiff and she fell when trying to avoid being hit by the car.
However, Yerukola also testified that he clearly saw plaintiff in the road and that he saw her fall as he was applying his brakes and ultimately came to a complete, controlled stop before reaching her. Yerukola stated, ‘I was able to stop the vehicle. Luckily, I would say really lucky that, uh the vehicle got stopped’ which could indicate his relief that, having seen plaintiff fall to the ground, he stopped in sufficient time to avoid running her over. And Singh clearly testified that he did not see the incident occur. Rather, he assumed she had been hit by the vehicle after hearing a sound and thereafter seeing plaintiff on the ground. Taking the evidence in a light most favorable to Citizens, which the court was required to do, it is plausible that plaintiff misjudged whether any evasive action on her part was necessary, and in an effort to get out of the road, simply fell. This is an admittedly close question, but a question nonetheless. Thus, in our view, the evidence leaves questions of material fact concerning whether the motor vehicle posed a danger to plaintiff. Consequently, the trial court erred in weighing the evidence and by granting plaintiff’s motion for summary disposition on this issue.”
The Court then turned to the issue of Kaur’s domicile, holding that a question of fact existed as to that issue, as well. The Court noted that Kaur and her husband moved to Canada in 1989—becoming Canadian citizens in 1995—but that Kaur testified that in 2016, before the subject incident, she and her husband moved in with her son, Jagdeep, in Canton, Michigan, with the intention of making Jagdeep’s home their permanent residence. At the time of the subject incident, Kaur and her husband were going back and forth between Jagdeep’s home and their home in Canada every few months; they received mail in both Michigan and Canada; and they had bank accounts in both Michigan and Canada. Additionally, Kaur and her husband had their own bedroom at Jagdeep’s home, and Kaur had a primary care physician in Canton. Given these facts, the Court held that it would be inappropriate to grant summary disposition in either Meemic’s or Citizens’ favor on this issue.
“Plaintiff testified that as of June 2009, she and her husband started residing at Jagdeep’s home in Canton, Michigan, and they would travel back and forth to Niagara Falls as they pleased. She explained that ‘when we came back [from their most recent trip to Canada in May 2016], I came with an idea to stay in Canton.’ (Emphasis added.) Similarly, plaintiff’s husband, Singh, testified that before 2009, they simply had ‘visit[ed]’ Michigan, but in 2009, they ‘permanently’ moved to the Canton residence. At a different deposition, Singh also stated that he considered the Canton house to be his ‘home’ as of 2009. Indeed, on June 12, 2009, both plaintiff and her husband received their immigration “green cards,” which showed them as being ‘permanent’ residents of the Unites States.
Since 2009, plaintiff and her husband have gone back to Canada for a few months at a time. Their intention was to spend about six months in Canada and six months in the United States. Notably, they receive mail at both addresses, have bedrooms at both addresses, visit Temple at both addresses, and have banks accounts in each country. Further, plaintiff had a primary care physician in Canton, and she and her husband did not have any plans to travel outside of Michigan that they had to cancel when plaintiff could no longer travel as a result of the injuries she sustained from the accident.
One of the factors to consider when evaluating domicile is where a person keeps his or her possessions. Cervantes, 272 Mich App at 415. There is conflicting evidence on this factor. There was evidence that plaintiff and her husband kept some of their possessions in Canton and some in Niagara Falls, but Singh also testified that at the time of the October 6, 2016 accident ‘all of our belongings’ were at the Canton address. Accordingly, when viewing the evidence in a light most favorable to Citizens, as the nonmoving party, there is a factual dispute regarding where plaintiff’s and Singh’s possessions were located.
And more importantly, there also is a question of fact regarding plaintiff’s intent. As previously discussed, plaintiff testified that after returning to Michigan in May 2016, she had the intent to ‘stay’ in Canton and considered the Canton address to be her ‘home.’ In another deposition, plaintiff testified that she considered both the Canton home and the Niagara Falls home to be her ‘main home.’ Likewise, her husband testified that he had lived at the Canton address for 10 years, and although he sometimes traveled to Canada, Canton is the place he resides. Singh stressed that before 2009, he and his wife would occasionally ‘visit’ Jagdeep in Michigan, but in 2009, they ‘permanently’ moved to Jagdeep’s Canton home. Yet later, Singh stated that he considered both Niagara Falls and Canton to be their permanent residences. Viewing the evidence in a light most favorable to Citizens, there is too much inconsistency and contradiction in the record evidence to conclude that there are no questions of fact on the key matter of plaintiff’s intent. Consequently, the trial court erred by granting Meemic’s motion for summary disposition on the issue of domicile. Accordingly, we reverse that order. We decline, however, Citizens’ invitation to grant summary disposition in its favor on this issue. The questions of fact make summary disposition inappropriate for any party.”
Lastly, the Court of Appeals turned to Citizens’ motion to compel Kaur to submit to supplemental discovery. The various appellate proceedings in this case took several years to resolve, and Citizens argued that it needed to depose Kaur a second time, and subject Kaur to a second IME, because it did not know the status of her present condition, especially as it related to claims that accrued while the appellate proceedings were pending. The Court of Appeals agreed and held that it would be “fundamentally unfair” to deny Citizens an opportunity to conduct the additional discovery it sought, as “that would leave Citizens somewhat blind in trying to defend against [the claims that accrued [while the appellate proceedings were pending.]”
“We first note that the trial court did not deny Citizens’ motion outright; instead, the court denied the request for another deposition of plaintiff, but granted Citizens’ requests to have plaintiff provide ‘supplemental discovery responses regarding updated medical records and treatment [and] outstanding bills’ and to have plaintiff ‘update any stale authorizations.’ Citizens argued in the trial court that another deposition was necessary because Citizens was ‘unaware of Plaintiff’s current condition or what, if anything, has changed in the preceding two years.’ Plaintiff has been deposed in the past, but because of the appellate proceedings, it has been several years since she has been deposed. As Citizens explains in its reply brief, plaintiff would presumably be seeking to recover benefits for services provided over the past few years—i.e., since her last deposition. It appears fundamentally unfair to preclude Citizens from obtaining meaningful discovery from plaintiff, personally, at this point in time; that would leave Citizens somewhat blind in trying to defend against these claims. Citizens could not question plaintiff regarding any more recent and potentially confusing, inconsistent, uncertain, or disputed documents relative to the prior few years, for example.
Likewise, Citizens may be prejudiced if plaintiff did not submit to another IME. While Citizens will be afforded more information through supplemental discovery responses regarding plaintiff’s medical situation, without another IME Citizens would be left to accept without question any documents submitted by plaintiff and would be denied an opportunity to obtain independent information concerning any recent changes in plaintiff’s medical status or treatments and thus to meaningfully contest plaintiff’s claims. As a result, we conclude that the trial court abused its discretion when it denied Citizens’ request for another IME.”
