Michigan Court of Appeals; Docket # 326793; Unpublished
Judges Wilder, Murphy and O'Connell; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving the reimbursement of medical expenses incurred by a treatment provider, the Court of Appeals held that defendant no-fault insurer was improperly granted summary disposition because although an examination under oath (EUOs) suggested the injured person had unlawfully taken the vehicle involved in the accident, subsequent deposition testimony indicated otherwise.
Plaintiff brought this action to recover expenses it incurred while providing care and treatment for Danielle Pinkney, who was injured in a car accident in June 2010 while operating, without a license, a Jeep Liberty titled in the name of her fiancée, James Talison. During pre-litigation EUOs conducted by American Fellowship Mutual Insurance Company, which insured the Jeep, Pinkney and Talison repeatedly indicated that Pinkney had been driving Talison's vehicle at the time of the accident without his permission, that she had never previously been given permission by Talison to drive the Jeep, and that Pinkney did not drive Talison's vehicles.
However, in depositions taken during litigation Plaintiff filed in 2011, Pinkney and Talison testified they had lied in their EUOs after being told the balance owing on the loan to purchase the Jeep would only be paid off by American Fellowship if the unlicensed Pinkney did not have permission to drive the Jeep. In their depositions, Pinkney and Talison insisted that Pinkney had contributed $4,000 of the $5,000 down payment on the Jeep; she had her own set of keys to the Jeep; she drove the Jeep nearly every day and had Talison's permission to drive the vehicle whenever she wanted; she helped pay the monthly installment payments for the Jeep and the insurance premiums; and Pinkney was driving the vehicle with Talison's permission when the accident occurred. Pinkney and Talison also recognized that if American Fellowship did not pay plaintiff's bills stemming from Pinkney's medical care, Pinkney would be personally responsible for paying them. American Fellowship, however, filed for bankruptcy, resulting in an automatic stay and leaving this lawsuit in limbo.
Plaintiff filed the action at bar in 2013, asserting that American Fellowship had been the highest priority insurer and that plaintiff had submitted proof-of-loss claims to American Fellowship in the amount of $65,211. The complaint alleged that American Fellowship was later declared insolvent and that Michigan Property & Casualty Guaranty Association (the association) assumed American Fellowship's obligation to pay no-fault benefits to or on behalf of Pinkney. Plaintiff also named as a defendant the Michigan Assigned Claims Facility (MACF), seeking a judgment declaring that the association and/or the MACF (or its insurer assignee) were liable for the payment of PIP benefits. The association filed a motion for summary disposition. Plaintiff claimed that summary disposition was improper because the deposition testimony of Pinkney and Talison, when viewed in conjunction with the EUOs, created an issue of fact about whether Pinkney had unlawfully taken the vehicle within the meaning of MCL 500.3113(a). Also, affidavits of three of Pinkney and Talison's friends supported a finding that Pinkney had implied permission to drive the vehicle. The trial court granted the association's motion for summary disposition.
The Court of Appeals reversed, finding that summary disposition was improper because a genuine issue of fact existed. In so holding, the Court said the "Gamet rule" did not apply. That rule is effectively an evidentiary rule precluding substantive consideration of certain affidavits, or a rule giving them no weight, in the context of deciding a motion for summary disposition relating to the question of whether a genuine issue of material fact exists in a case.
The Court of Appeals found that the Gamet rule did not apply for several reasons:
▪ plaintiff was not relying on subsequent and expedient affidavits in which Pinkney and Talison simply set forth averments contradicting their EUOs and, instead, Pinkney and Talison contradicted their EUOs in full-blown depositions, where the attorneys were able to extensively explore all factual aspects.
▪ under the Gamet rule, "clear, intelligent and unequivocal statements of fact" are only conclusively binding "in the absence of any explanation," and Pinkney and Talison gave an explanation, even though it was presumably motivated by financial gain.
▪ Pinkney noted in her deposition that she was under duress during her EUO, because she was pressured by Talison to lie, thereby providing another "explanation" for the shift in her testimony.
▪ the case did not present a situation where a party undermined his or her own case in deposition testimony and then that same party sought to save the case by filing a self-serving document in which he or she contradicted the damaging deposition testimony.
Also, the Court held that the trial court erred by failing to consider the affidavits of Pinkney and Talison's friends which, while not directly addressing the issue of permission, lent support for a conclusion that Pinkney generally had free reign of the vehicle.
In light of the foregoing, the Court of Appeals stated:
"Thus, assuming for the sake of argument that, because of the Gamet rule, Pinkney could not rely on or utilize the deposition testimony to show eligibility had she filed a direct action for PIP benefits, it does not necessarily follow that the deposition testimony is likewise restricted in a suit by the medical center. Again, the Gamet rule is ultimately an evidentiary rule of preclusion applicable to summary disposition motions, and there is no basis, given its purpose, to employ it here against the medical center. ... Because we have ruled that the deposition testimony by Pinkney and Talison should have been considered by the trial court and was not barred from consideration under the Gamet rule, we decline to determine whether the friends' affidavits, in and of themselves, created a genuine issue of material fact on the question of permission and whether there was an unlawful taking of the Jeep."
Accordingly, the Court of Appeals concluded the trial court erred in not considering Pinkney's and Talison's deposition testimony for purposes of determining whether a genuine issue of material fact existed, with respect to the application of §3113(a).
