Michigan Court of Appeals; Docket #355118; Unpublished
Judges Riordan, Borrello, and Letica; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Exclusions from Underinsured Motorist Benefits
Exclusions from Uninsured Motorist Benefits
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed in part, and reversed in part, the trial court’s summary disposition order dismissing Plaintiff Jonathan Jones’s action for unpaid no-fault PIP benefits and uninsured or underinsured motorist benefits against Defendants Home-Owners Insurance Company (“Home-Owners”), American Country Insurance Company (“ACIC”), and Hartford Accident & Indemnity Company (“Hartford”). The Court of Appeals held, first, that the trial court erred by dismissing both Jones’s claims based on the respective antifraud provisions in each insurer’s policy. The trial court should have first determined which insurer had priority responsibility for payment of Jones’s no-fault PIP benefits related to the subject motor vehicle accident, as it was necessary to determine whether his entitlement to PIP benefits was contractual or purely statutory, in which latter case his claim would be unaffected by any contractual antifraud provision. The Court of Appeals held, second, that the trial court erred in failing to specify whether Jones committed fraud in inducing the policies or merely post-procurement fraud, the latter of which generally does not trigger an antifraud provision in a policy. The Court of Appeals held, third, that Jones did, in fact, commit fraud before commencing his action and that his claim for uninsured or underinsured benefits—governed entirely by contract—was barred by the antifraud provisions in each insurer’s policy.
Jonathan Jones was injured in a motor vehicle accident while driving a vehicle insured under an ACIC no-fault policy issued to Sons of Alice Transportation, LLC. Jones was also covered under a no-fault policy issued by Home-Owners, which insured his personal vehicle, and a no-fault policy issued by Hartford, which insured a 1994 Chevrolet pickup truck and listed “Jonathan Jones, d/b/a Jones Landscaping” as the named insured. After the accident, Jones spoke with a Home-Owners representative over the phone, in which he claimed to be suffering from significant physical limitations and impairments as a result of the injuries he sustained therein. At some point thereafter, he filed a first-party action against all three defendantsas well as claim against all three defendants for uninsured or underinsured motorist benefits—and underwent a deposition in which he again claimed to be suffering from significant physical limitations and impairments as a result of his accident-related injuries. All three defendants then moved for summary disposition based on surveillance footage which contradicted his claims of impairments, which each defendant argued violated the respective antifraud provisions in their policies. Without determining the priority order of the three defendants, the trial court found that all Jones’s claims were barred by the respective antifraud provisions and granted summary disposition with respect to all three.
The Court of Appeals reversed the trial court’s summary disposition order as to Jones’s first-party claim against the three defendants, holding that the trial court erred by not first determining which insurer was first in priority, as it was necessary to determine whether Jones’s entitlement to no-fault PIP benefits was contractual or purely statutory, in which latter case an antifraud provision would be inoperative.
“In this case, plaintiff sought recovery of PIP benefits under three different policies, only one of which—the Home-Owners policy—clearly listed plaintiff as the named insured. The trial court apparently determined that it was unnecessary to decide which insurer had priority to pay PIP benefits, because it determined that plaintiff’s fraud voided coverage for PIP benefits under all three policies. Under Shelton, however, to the extent that plaintiff was entitled to PIP benefits under a policy in which he was not a named insured—that is, his entitlement to benefits arose by way of statute rather than contractual agreement—the defendant insurer would not be able to rely on a fraud provision in its policy to avoid liability for PIP benefits. Therefore, it was necessary to determine which insurer had first priority for payment of PIP benefits. Accordingly, we reverse the trial court’s order granting summary disposition and remand for a determination of the priority of the potential insurers, whether plaintiff is entitled to benefits under a policy, and whether the benefits arise by statute or contract.”
The Court of Appeals held, second, that the trial court also failed by not determining whether Jones committed fraud in the policies’ inducements or merely post-procurement fraud, and whether, therefore, any statutory or common-law defenses were available to the defendants pursuant to Meemic Ins Co v Fortson, 506 Mich 287 (2020) and Williams v Farm Bureau Mut Ins Co of Mich, 335 Mich App 574 (2021).
“Although the trial court concluded that summary disposition was appropriate because of the antifraud provisions of the insurance policies at issue, it failed to determine whether plaintiff was considered an insured for purposes of the policies and whether any alleged fraud occurred to induce the policies as opposed to postprocurement fraud and whether statutory or common-law defenses were available in light of the fraud at issue. See Meemic Ins Co v Fortson, 506 Mich 287, 305; 954 NW2d 115 (2020); Williams v Farm Bureau Mut Ins Co of Mich, 335 Mich App 574, 578, 580; 967 NW2d 869 (2021) (holding that if the alleged fraud did not influence or induce the policy’s procurement, there is not a common-law basis to rescind a no-fault policy or avoid performance of obligations under the policy and antifraud provisions are invalid when they purport to apply to misrepresentations or fraud that occurs after the policy has been issued). Accordingly, we reverse the trial court’s order and remand to address the availability of PIP benefits in light of these decisions.”
The Court of Appeals affirmed the trial court’s summary disposition order, however, as to Jones’s claim for uninsured or underinsured benefits. The Court noted that the insurers’ could not invoke their respective antifraud provisions based on Jones’s misrepresentations during his deposition (pursuant to Haydaw v Farm Bureau Ins Co, 332 Mich App 719 (2020), in which the Court held that misrepresentations made during the course of litigation cannot trigger a policy’s antifraud provision), but that they could based on the similar misrepresentations Jones made in his pre-litigation interview with the Home-Owners representative (pursuant to Fasho v Liberty Mut Ins Co, 333 Mich App 612 (2020), in which the Court distinguished between misrepresentations made during the course of litigation, as in Haydaw, and misrepresentations made prior to litigation). Notably, but without explaining why, the Court appears to have held that Jones’s pre-litigation misrepresentations to the Home-Owners representative also operated as grounds for ACIC and Hartford to deny Jones’s claim under their policies, based on their policies’ respective antifraud provisions.
“In this case, plaintiff participated in a recorded interview with a Home-Owners representative on February 16, 2018, before this litigation was commenced. Plaintiff stated that the motor vehicle accident caused injuries to his right ankle, his knees and back, and that ‘basically I just be hurtin[g] all over.’ Plaintiff also stated that he injured his head after hitting it on the steering wheel. Plaintiff explained that his right ankle was sore and ‘sometimes it numb up and [I am] unable to move it sometimes.’ Plaintiff was experiencing numbness and sharp pain in his arms, pain in his neck up to the back of his head, and was having headaches “from time to time.” Plaintiff was attending physical therapy for his back, leg, ankle, and arms at the time he gave his recorded statement, and he recounted that ‘[s]ometimes [physical therapy] you know, sometimes it helps.’ At the time of his recorded statement, plaintiff said he was not able to drive himself to and from appointments because of his pain and dizzy spells, and he relied on a transportation service to get him to and from appointments. Plaintiff was treating with a pain-management physician, an orthopedic surgeon, and a psychiatrist. Following the accident, plaintiff was not able to cook, clean, or wash dishes, and he required the assistance of his daughter eight hours a day for assistance with washing dishes, cleaning, cooking, massages, and shaving his head. His daughter would also accompany him in the bathroom when he was showering and bathing, and she assisted him with washing. His daughter would also assist plaintiff with dressing. Plaintiff had obtained a prescription for replacement services and attendant care, and said that he expected his daughter to be reimbursed for assisting him at home.
Viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of material fact that plaintiff made material misrepresentations regarding his physical limitations, including his ability to conduct his daily activities of living, that were established by the surveillance evidence3 to be factually incorrect and untruthful. Specifically, while plaintiff testified that he required the assistance of his family to wash dishes, clean, cook, get dressed, and shower and bathe, defendants presented surveillance evidence that showed plaintiff on February 21, 2018, ‘bent over into [his] vehicle for several moments, then proceed[ing] to carry two arms full of groceries to the residence’ while moving in a ‘normal, fluid manner’ without using any medical assistive aids or devices. Surveillance was also subsequently conducted on March 5, 2018, in which plaintiff was observed moving ‘in a normal, fluid manner’ while using a cane as he walked toward his residence. The surveillance evidence is clear, uncontroverted, and undermines plaintiff’s claim that his injuries hindered his ability to care for himself. The evidence was also such that reasonable minds could not disagree that plaintiff made the statements during his recorded interview knowing that they were false, and with the intent that a no-fault insurer would act on them to determine that he was entitled to coverage. Titan, 491 Mich at 555. Accordingly, the trial court did not err by dismissing plaintiff’s claims for uninsured and underinsured motorist benefits on the basis of plaintiff’s fraudulent misrepresentations.”