Michigan Court of Appeals; Docket #359826; Unpublished
Judges Shapiro, Borrello, and Yates; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Central Home Health Care Services’ (“Central”) action for unpaid no-fault PIP benefits against Defendant Liberty Mutual Insurance Company (“Liberty Mutual”). The Court of Appeals held that the trial court erred when it ruled, as a matter of law, that Central could not establish that its patient/Liberty Mutual’s insured, Sean Smith, was injured in a motor vehicle accident because Smith, himself, was stricken as a witness and not permitted to testify at trial. The trial court was required to consider whether the facts of the accident and the nature and extent of Smith’s injuries could have been established by other forms of documentary evidence.
Sean Smith was injured in a motor vehicle accident on October 24, 2017, after which he received treatment from Central. Smith assigned his right to pursue no-fault PIP benefits related to his treatment to Central, and Central ultimately filed suit against Liberty Mutual. During the course of litigation, Liberty Mutual made several attempts to depose Smith, but Smith refused to cooperate, and thus Liberty Mutual filed a motion to strike Smith as a witness. After the trial court granted Liberty Mutual’s motion to strike, Liberty Mutual moved for summary disposition, arguing that Central could no longer prove that Smith was involved in a motor vehicle accident “because the trial court struck Smith as a witness, the police report was inadmissible hearsay, and the doctors and police officers did not witness the accident and therefore could not testify that Smith was in an accident.” The trial court granted Liberty Mutual’s motion, stating as follows:
“They need that patient and he’s not participating and I don’t, I disagree with you, counsel, I don’t think you can just bring in medical records and satisfy. You know, I’m well aware of the exception, medical records exception for statements made for the purpose of diagnosis and treatment, but not to prove the underlying case of an auto accident, injured, arising out of the use of a, of a motor accident. I think without Sean Smith, you, you aren’t able to proceed and I’m granting it on that basis.”
The Court of Appeals reversed the trial court’s summary disposition order, holding that the trial court erred in ruling, as a matter of law, that Central could not carry its burden of proof without Smith’s testimony. What the trial court was really doing, according to the Court of Appeals, was making an improper determination regarding the strength of Central’s case without Smith’s testimony. The trial court’s charge in ruling on Liberty Mutual’s motion for summary disposition, however, was merely to consider whether other evidence in the record was sufficient to create a question of fact—not to weigh the strength of that evidence.
“Here, the trial court ruled that summary disposition was warranted because plaintiff could not succeed on its claim as a matter of law because Smith was not able to testify. The trial court did not consider what the other record evidence showed when considered in the light most favorable to plaintiff as the nonmoving party. Maiden, 461 Mich at 120. Instead, the trial court only considered the record evidence to the extent that the trial court did not believe that the relative strength of that evidence was sufficient to survive summary disposition. ‘[I]t is well settled that the circuit court may not weigh the evidence or make determinations of credibility when deciding a motion for summary disposition.’ Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 480; 776 NW2d 398 (2009). Defendant’s appellate arguments are similar to those of the trial court as they apply to the weight and relative strength of the record evidence.
Contrary to the proper legal standard for considering a motion for summary disposition under MCR 2.116(C)(10), the trial court in this case neglected to consider all of the submitted documentary evidence in the light most favorable to plaintiff to determine whether a genuine question of material fact existed. Instead, the trial court focused solely on the lack of available testimony from Smith and concluded that as a matter of law, plaintiff could not succeed in establishing its claim. The trial court did not consider whether other evidence in the record demonstrated a question of fact whether Smith suffered injuries as a result of a motor vehicle accident. See MCL 500.3105(1). When considering a motion under MCR 2.116(C)(10), ‘a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion.’ El-Khalil, 504 Mich at 160 (emphasis added)."
