Michigan Court of Appeals; Docket No. 164079; Unpublished
Judges Neff, Sawyer, and Jourdan; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits: Uninsured Motorist Coverage in General
Uninsured Motorist Benefits: Physical Contact Requirement
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals reversed the trial court's grant of summary disposition in a case involving uninsured motorist coverage, where the plaintiffs' own testimony would disqualify them from receiving coverage, but other evidence offered by plaintiffs resulted in a question of fact as to whether coverage is available.
The plaintiffs were injured in a vehicle rollover accident that occurred when they swerved to miss a large piece of plywood that blew off an unidentified lumber truck. Plaintiffs sought recovery for their injuries pursuant to the uninsured motorist coverage portion of their policy. The parties stipulated that in order for plaintiffs to recover, their automobile must have come into some physical contact with the piece of plywood.
At their depositions, plaintiffs testified that they did not believe their vehicle came into contact with the plywood. However, in opposition to defendant's motion for summary disposition, plaintiffs presented an affidavit from an automobile body repair expert stating the damage to the front end of plaintiffs' car was consistent with being hit by the plywood. The Court of Appeals held that the trial court erred in failing to consider the affidavit of the automobile body repair expert to create an issue of fact. While a party may not create a factual issue by contradicting his or her own previous testimony, the Court of Appeals held that such a rule does not apply when the party submits an affidavit of another witness to contradict their own testimony. Because of the factual dispute, the court found summary disposition was improperly granted. In addition, plaintiffs in this case had the depositions scheduled of other witnesses, who possibly could have provided additional factual issues. The Court of Appeals found that it was improper for the trial court to grant summary disposition before plaintiff had the opportunity to conduct this discovery.
