Michigan Court of Appeals; Docket #358882; Unpublished
Judges Swartzle, Cavanagh, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Fraudulent Insurance Acts [§3173a]
Issues Regarding Affirmative Defenses
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Orlando Scott’s first-party action for no-fault PIP benefits against Defendant Michigan Automobile Insurance Placement Facility (“MAIPF”). Relying on Loiola by Fried v Citizens Ins Co of America (On Remand), unpublished per curiam opinion of the Court of Appeals issued December 2, 2021 (Docket No. 348670), the Court of Appeals, in this case, held that Citizens failed to state with particularity its affirmative defense that Scott had committed a “fraudulent insurance act” for purposes of MCL 500.3173a(2). However, as in Loiola, the Court remanded the case to the trial court to allow the MAIPF to amend its affirmative defenses.
Orlando Scott was injured in a motor vehicle accident, after which he applied for no-fault PIP benefits through the MAIPF. The MAIPF denied his claim based on answers he offered in an examination under oath, in which he testified both that he had no relevant preexisting medical conditions and that he had never before filed a claim for PIP benefits. The MAIPF alleged that he did have relevant preexisting medical conditions and that he had previously filed a claim for PIP benefits with the MAIPF, in 2013. Based on these responses, the MAIPF took the position that Scott had committed a “fraudulent insurance act” for purposes of MCL 500.3173a, and that his claim was therefore barred. Scott proceeded to file suit against the MAIPF, and the MAIPF answered with “58 generic affirmative defenses including several that asserted that the claimant had committed unspecified fraud.” The MAIPF then moved for summary disposition based on its argument regarding Scott’s fraud, which the trial court granted.
The Court of Appeals reversed the trial court’s summary disposition order, holding that the MAIPF failed to set forth its affirmative defense based on Scott’s alleged “fraudulent insurance act” with particularity. The MAIPF attempted to argue that the requirement that common-law fraud be pled with particularity does not apply when an insurer invokes MCL 500.3173a(2) as an affirmative defense to a claim for PIP benefits, because that requirement applies only to allegations of common-law fraud, the analysis for which is different than the statutory analysis for “fraudulent insurance acts.” The Court of Appeals disagreed, observing that in Glasker-Davis v Auvenshire, 333 Mich App 222 (2020), it held that although affirmative defenses are not pleadings, they’re highly analogous to them, and thus an affirmative defense based on a violation of an insurance policy’s antifraud provision must also be set forth with particularity. Then, in Loiola, it held that Glasker-Davis’s particularity requirement also applied to a fraud defense based on MCL 500.3173a(2).
“Under the Loiola analysis applying Glasker-Davis, these affirmative defenses that referenced MCL 500.3173a and fraudulent insurance acts are deemed fraud affirmative defenses. Analysis of these affirmative defenses reveals that none of the MAIPF and MACP’s affirmative defenses that referenced MCL 500.3173a stated with particularity what statements Scott made, when the statements were made, or how the statements were false. Applying Glasker-Davis in the same manner as in Loiola, we conclude that the MAIPF and MACP’s affirmative defenses were insufficient to plead fraud as an affirmative defense because they were not pleaded with particularity as required under Glasker-Davis. Accordingly, we reverse the trial court’s ruling and grant of summary disposition to defendants.”
Despite the MAIPF’s failure to set forth its defense based on MCL 500.3173a(2) with particularity, the Court of Appeals held that the trial court should allow it to do so on remand, just as it held in Loiola.