Michigan Court of Appeals; Docket # 326561; Unpublished
Judges Jansen, Fort Hood and Boonstra; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Fraud/Misrepresentation
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held the trial court properly denied defendant-no-fault insurer's motion for summary disposition because although surveillance video showed plaintiff driving, lifting objects and running errands after his auto accident, there was a genuine issue of material fact regarding whether this conduct constituted fraud under the terms of plaintiff's no-fault policy.
Plaintiff fractured his cervical spine, suffered lumbar spine herniations and injured his left shoulder in a 2012 car accident. The shoulder injury required surgery. Plaintiff was a resident relative of individuals who were insured by defendant Home-Owners Insurance Company, and so he submitted a claim for replacement services to Home-Owners. The no-fault policy included the following fraud exception: "We will not cover any person seeking coverage under this policy who has made fraudulent statements or engaged in fraudulent conduct with respect to procurement of this policy or to any occurrence for which coverage is sought." After the accident, surveillance video showed plaintiff driving, lifting objects and running errands on two days in March 2013. When plaintiff submitted a household services statement for March 2013 to Home-Owners, it denied plaintiff's claim. Plaintiff then filed this action, seeking payment for the March 2013 services. Home-Owners moved for summary disposition, claiming the surveillance video established that plaintiff engage in fraud, and the policy's fraud exclusion applied. Plaintiff claimed a jury had to decide the issue, asserting the surveillance video did not prove that he did not require and did not receive assistance at other times during the two days on video, based on his fluctuating pain levels. The trial court denied Home-Owners motion for summary disposition.
The Court of Appeals affirmed, finding a genuine issue of material fact existed as to whether plaintiff's conduct constituted fraud. In so holding, the Court first looked to rules of contract interpretation and to the insurance form that had to be completed for replacement services.
Regarding the form, the Court of Appeals said:
"There is space on the bottom for the caregiver to sign and date the form. No space is provided on the form for the claimant's signature. The form is signed by [the caregiver]. Unlike the forms for other months, the March form contains no dates in any of the squares, and all 35 squares have been filled out with handwritten letters designating which of the services listed in the key were actually provided. On some of the dates, the form reflects that Beard drove plaintiff and ran errands on his behalf. However, the form reflects that [the caregiver] did not drive plaintiff or run errands on every day of the month."
Regarding the surveillance video, the Court of Appeals said it did not conclusively establish that the household services form was false. Looking at the video, including when and where plaintiff was seen driving and lifting objects (including a child's bicycle), the Court said the video evidence was consistent with plaintiff's deposition testimony, including the fact that he had stopped wearing his neck brace all the time because his doctor had told him not to become dependent on it and because plaintiff did not want to be perceived as disabled.
The Court of Appeals further noted that plaintiff began driving about one month after the accident because he had no help and "had no choice but to drive." According to the Court, the surveillance video did not "depict plaintiff's conduct during every hour of the relevant days" and there was nothing in the videos that contradicted plaintiff's position or established that replacement services were never performed on the days in question.
The Court of Appeals further noted the insurance forms did not establish on what dates the driving and errand-running services were claimed. "[T]here were no affidavits or testimony to otherwise establish what entries corresponded to what dates," the Court said.
In conclusion, the Court of Appeals distinguished Bahri v IDS Prop Casualty Ins Co, 308 Mich App 420 (2014), from this case and said:
"...Bahri is distinguishable ... because in Bahri, the plaintiff sought compensation for replacement services provided during the 19 days preceding the accident. ... In this case, plaintiff did not seek compensation for replacement services provided before his accident. Furthermore, the videotape in Bahri depicted the plaintiff performing activities that were inconsistent with her claimed limitations .... [T]his case differs from Bahri because plaintiff was not observed doing anything inconsistent with his limitations or injuries."
Based on the foregoing, the Court of Appeals held the trial court properly denied Home-Owners' motion for summary disposition.
