Michigan Court of Appeals; Docket #360119; Unpublished
Judges Cavanagh, O’Brien, and Rick; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Entitlement to PIP Benefits: Arising Out of / Causation Requirement [§3105(1)]
General/Miscellaneous [§3114]
TOPICAL INDEXING:
Evidentiary Issues
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order in favor of Defendant Sentinel Insurance Company Limited (“Limited”), in Sentinel’s priority dispute with Defendant Progressive Michigan Insurance Company (“Progressive”). The Court of Appeals held that a question of fact existed as to whether Cherisse Withers’s ongoing medical treatment were related to injuries she sustained in either a 2010 motor vehicle accident—at which time she was insured by Sentinel—or a 2012 motor vehicle accident—at which time she was insured by Progressive—or both.
Cherisse Withers injured her neck and back in a 2010 motor vehicle accident, after which she received various forms of medical treatment from various doctors, including Dr. Robert Farhat. Plaintiff treated for pain relative to the injuries she sustained in the accident through at least June 26, 2012, when she underwent a procedure with Dr. Farhat. Less than two weeks later, Withers was injured in another motor vehicle accident, which resulted in injuries to her hip, knee, back, and neck. On July 16, 2012, Withers signed a release for all claims against Sentinel from the date of the first accident through May 21, 2012, but which was silent as to future claims.
Withers continued to receive treatment for her numerous injuries and, in a note following an appointment with Dr. Farhat on August 28, 2012, Dr. Farhat wrote that Withers ‘had a history of neck and low back pain from an automobile accident,’ and that the 2012 accident ‘exacerbated her neck pain.’ A dispute arose between Progressive and Sentinel as to who was responsible for Withers’ treatment after the second accident, forcing Withers to eventually file suit against both insurers. Sentinel moved for summary disposition, based solely on Withers’s deposition testimony, in which she testified that she stopped treating for the injuries she sustained in the 2010 accident in 2011, and that the back and neck pain she developed as a result of the 2010 accident had resolved prior to the 2012 accident. Given this testimony, the fact that the second crash appeared to be more violent than the first, and the fact that Withers had executed the aforementioned release, the trial court granted Sentinel’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding that a question of fact existed as to whether Withers’s ongoing treatment was in any way related to the 2010 accident. The Court held, first, that to the extent that Withers was offering an expert medical opinion regarding her injuries during her deposition, her testimony was inadmissible under MRE 702. The Court held, second, that Withers’s medical records—specifically, those which contradicted her statement that she had stropped treating for the injuries she sustained in the 2010 accident in 2011, as well as those which contained Dr. Farhat’s finding that the 2012 accident exacerbated the injuries she sustained in the 2010 accident—was sufficient to create a question of fact as to whether her ongoing treatment related to the 2010 accident. The Court held, third, that the trial court erred to the extent that it relied on the release of Withers’s claims against Sentinel through May 21, 2012 in reaching its ruling.
“The trial court erred by weighing the evidence of plaintiff’s deposition testimony against plaintiff’s medical records in concluding that plaintiff’s injuries in the instant case were wholly unrelated to the 2010 accident and were fully healed at the time of the 2012 accident. Hines, 265 Mich App at 437. Moreover, the issue of causation is generally reserved for the fact-finder unless there is no dispute of material fact. See Patrick v Turkelson, 322 Mich App 595, 616; 913 NW2d 369 (2018). Because Progressive provided plaintiff’s medical records that contradicted plaintiff’s deposition testimony, summary disposition was improper. See Hines, 265 Mich App at 437.
Moreover, Progressive argues that the trial court improperly considered plaintiff’s deposition testimony as expert medical testimony under MRE 702. . . .
As Progressive asserts and plaintiff, herself acknowledged, plaintiff is not a medical expert with the knowledge or background to opine on the causation or extent of her injuries. Although plaintiff’s testimony regarding the existence of her physical injuries may be admissible under MRE 701, her testimony concerning the cause and extent of her injuries and whether or not her injuries had been fully healed by the 2012 accident was not admissible. Moreover, as already discussed, Progressive provided plaintiff’s medical records that contradicted plaintiff’s testimony. . . .
Progressive further argues that the trial court erred by considering the release signed by plaintiff, which released plaintiff’s PIP claims concerning the 2010 accident against Sentinel through May 21, 2012. Sentinel agrees that the release did not release PIP claims arising after May 21, 2012. Progressive asserts that the release was irrelevant under MRE 402 and not admissible to establish liability or invalidity of the claim under MRE 408. . . .
During the hearing, the trial court noted: ‘You know, [plaintiff has] a release. The intervening claims say they relate to that. You know, I’m not buying it.’ It is unclear whether the trial court concluded that the release barred plaintiff’s claims, but to the extent that it did so, it was error. See MRE 408. Additionally, the release clearly indicates that plaintiff did not release future medical benefit claims resulting from the 2010 accident occurring after May 21, 2012.”
