Shop Talk - June Auto Liability Update

Kimberly Johnson v Geico Indemnity Company, published opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 351838) 

The plaintiff in this case made a claim for attendant care and replacement services – which included a claim for care that was allegedly provided while the plaintiff was in Ohio and Florida without her care providers.

The appellate court, in light of Meemic Ins Co v Fortson, 506 Mich 287; 954 NW2d 115 (2020) and Williams v Farm Bureau Mut Ins Co of Mich, 335 Mich App 574, 576-577; 967 NW2d 869 (2021), stated that the insurer cannot rely on the proven fraud in the procurement of benefits to rescind the policy or to “flatly reject any and all claims for attendant care or replacement services.” Instead, the defendant was only entitled to summary disposition on the replacement services and attendant care claims that were “obviously false.”

Christopher Carter v Owners Insurance Company, unpublished opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 356556) 

Notably, this case involves Michigan’s pre-amendment No-Fault statutes. The plaintiff was struck by a vehicle while on an electric scooter (i.e., a pedestrian under Michigan law). The striking vehicle was insured with Farm Bureau; however, the plaintiff filed a claim with his father’s Ohio insurer, Owners Insurance Company (Owners).  

Owners originally denied the claim, indicating that the plaintiff was not a resident relative – he was, at the time, going to college at Wayne State University in Detroit. Notwithstanding, after the lawsuit was filed, Owners conceded that the plaintiff was a resident relative, but argued that it was still not responsible for PIP benefits because plaintiff’s injuries did not arise out of “his use” of a motor vehicle as required by MCL 500.3163(1) in effect on the date of loss. 

The plaintiff apparently did not take a position on this argument and, instead, focused on whether Owners should be estopped from changing its position under the mend-the-hold doctrine (i.e., Owners should not be allowed to argue 3163 when its original denial was based upon Plaintiff’s residency).  The Michigan Court of Appeals disagreed with the plaintiff’s position, finding that his reliance on Owners’ original position was not justified to warrant estopping Owners from asserting the defense under 3163(1).

Accordingly, the appellate court reversed the lower court’s ruling and remanded for entry of summary disposition in Owners’ favor because the out-of-state resident plaintiff was not using a motor vehicle at the time of the loss, and therefore, Owners was not obligated to provide the plaintiff with Michigan No-Fault PIP benefits.

Ashley Jones v Nicolas Bernard Anderson, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 356577)

This case involves Michigan’s pre-amendment No-Fault statutes. The plaintiff was injured as a pedestrian by a motor vehicle driven by defendant Anderson. Trudell’s vehicle was stopped for about 10 seconds and waiting to make a turn. As Anderson approached, he failed to stop and tried to go around Trudell’s vehicle but clipped the back of it before veering off the road and into the plaintiff on the sidewalk east of the road. 

Anderson did not have insurance on his vehicle, nor was the plaintiff personally insured.  Trudell’s vehicle, however, was insured with Geico. The plaintiff’s claims were assigned by the Michigan Assigned Claims Plan to Nationwide. Relying on MCL 500.3115(1), Nationwide filed a motion for summary disposition, asserting that Geico was a higher insurer because it insured Trudell’s vehicle which was “involved in the accident.” The trial court denied Nationwide’s motion and granted summary disposition in favor of Geico (i.e., Trudell’s insurer), finding that Trudell’s vehicle was only “passively involved” in the accident. 

Nationwide appealed, and the sole issue to be addressed was whether Trudell’s Geico-insured vehicle was “involved in the accident” such that it would be liable to the plaintiff under section 3115(1). The Michigan Court of Appeals, quoting Detroit Med Ctr v Progressive Mich Ins Co, 302 Mich App 392, 398-399; 838 NW2d 910 (2013), found that “there must be some activity by the motor vehicle that contributes to the happening of the accident beyond its mere presence.” There must be an “active link” between the injury and use of the motor vehicle. The appellate court affirmed the trial court’s decision, concluding that Trudell’s vehicle was not “involved in the accident” under the Act because it did nothing that actively contributed to the happening of the accident “beyond its mere presence.”  

Karen Louise Bellmore v Friendly Oil Change, et al., published opinion of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 357660) 

The plaintiff sought PIP benefits from State Farm after falling into an oil pit while maintenance was being performed on her vehicle. She argued that she was entitled to benefits under MCL 500.3105 (1) and/or MCL 500.3106(1).

The appellate court stated that the term “maintenance” has a broad definition as defined by case law, and therefore, the plaintiff looking at the filter while the service technician was in the process of changing the filter, fell into this category. However, the appellate court noted that her injuries did not arise out of the maintenance of the vehicle. Specifically, looking at the filter did not cause her injuries. This was “merely incidental to the circumstances.”

The appellate court noted that the true reason she fell into the pit was her lack of attention to where she was walking.  Regarding her argument that the parked car exception applied, the appellate court noted that her vehicle was not “parked” for the purposes of the no-fault act, but positioned in a way to allow maintenance to her vehicle.

5 Star Comfort Care, LLC v Geico Indemnity Company, unpublished opinion per curiam of the Michigan Court of Appeals, issued May 19, 2022 (Docket No. 356786)

The claimant was prescribed in-home attendant care services. 5 Star hired the claimant’s girlfriend as an independent contractor to provide attendant care to the claimant. 5 Star paid her $10 an hour, but billed Geico $39.99 per hour. Geico argued that the charges in excess of $10 were not “incurred” under MCL 500.3107(1)(a). 5 Star relied upon the assignment of rights, which provided that the claimant certified that he incurred charges provided by 5 Star, to assert that the claimant was contractually obligated to pay 5 Star at the rate of $39.99 per hour.

However, the appellate court disagreed as “nothing in the assignment required [the claimant] to do anything – such as pay 5 Star to do anything.” Instead, the assignment only assigned 5 Star the right to collect on the benefits. The appellate court noted that “a certification that a charge exists is not the equivalent of a contract to be liable for that charge.” As such, summary disposition was warranted for Geico because only the $10 charge had been incurred.  

Shelisa Harris v Edwin Pawlitz, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 357097)

Third-party negligence suit. The trial court granted the defendant’s motion for summary disposition, determining that the plaintiff could not prove an objectively manifested injury given her pre-existing history and post-accident records, nor an effect on her general ability to lead her normal life, as required by MCL 500.3135(5). The appellate court, however, noted that the trial court improperly weighed conflicting evidence in rendering its opinion.

The appellate court found that there was evidence in the record which a trier of fact could conclude that the plaintiff had suffered an objective impairment, but that the trial court disregarded this evidence. Moreover, the appellate court noted that the trial court failed to take into consideration the fact that the plaintiff required increased help after the accident. Although how much help was required after the accident versus before the accident was not discussed, the appellate court ultimately noted that the increased help was enough to create an issue of fact regarding whether her life had been affected.    

Martin Cousineau v Janet Cousineau, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 356952)

The sudden emergency doctrine applied as a defense to the negligence claim when black ice on the road, which caused the accident, was unexpected. The appellate court noted that it had been a “beautiful sunny winter morning, about 30 degrees” and that no snow was on the roads. The plaintiff testified that the black ice had been unexpected and that the driver was driving in a reasonable manner under the circumstances. The driver agreed with these statements.

Therefore, the appellate court found that there was no evidence to show that the defendant driver was acting unreasonably or that she should have expected the black ice.

Orchard Laboratories Corporation v Auto Club Insurance Association, unpublished opinion per curiam of the Court of Appeals, issued May 26, 2022 (Docket No. 356597)

Auto Club filed an motion for summary disposition, asserting that MCL 500.3145(1) barred the provider’s recovery because the action was filed more than one year after the accident as it did not receive written notice of the claim, with sufficient notice of the nature of his injuries, within one year of the accident. Alternatively, Auto Club asserted that the claims were barred by the one-year-back rule. Auto Club filed a similar notice motion in the, separately pending, underlying claimant’s case, that was granted. Therefore, Auto Club also asserted that Orchard’s claims were barred by res judicata.

The appellate court rejected Auto Club’s notice arguments because Auto Club conceded it received a copy of the police report within one year of the accident. This police report provided the claimant’s name, place and nature of the injury – noting that a truck hit the claimant’s leg and ran over his foot and that there was a “possible internal injury.” His wife had also called to report the claim within a year. The appellate court determined that this was sufficient notice of the nature of the claimant’s injuries for purpose of the statute.

In regard to the res judicata argument, the appellate court noted that an assignee is not bound by a judgement that the assignor obtained after the assignment. Therefore, the assignee is in privity with the assignor only up to the time of the assignment. Therefore, Orchard was not bound by the dismissal in the claimant’s case. Furthermore, collateral estoppel was inapplicable as Orchard was not a party to the claimant’s suit and, therefore, did not have a full and fair opportunity to litigate its claim in that action.

Kenneth Flesher v Progressive Marathon Insurance Company, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 357382)

A motorcyclist was involved in an accident with an unknown motor vehicle that fled from the scene. Progressive was the No-Fault insurer for the motorcyclist, while Memberselect was the insurer for the suspected at-fault vehicle.

Memberselect filed a motion for summary disposition, arguing that the plaintiff and Progressive had failed to establish beyond “sheer speculation” that the vehicle had been involved in the accident. This motion was granted by the trail court.

However, the appellate court disagreed, noting that the evidence presented, and the suspected at-fault driver’s testimony inconsistencies created a genuine issue of material fact regarding whether the at-fault vehicle was involved in the accident. Therefore, summary disposition was improper.  

Kimberly Johnson v Geico Indemnity Company, published opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 351838) 

The plaintiff in this case made a claim for attendant care and replacement services – which included a claim for care that was allegedly provided while the plaintiff was in Ohio and Florida without her care providers. The appellate court stated that the insurer cannot rely on the proven fraud to rescind the policy, or to “flatly reject any and all claims for attendant care or replacement services.” Instead, the defendant was only entitled to summary disposition on the claims that were “obviously false.”

Christopher Carter v Owners Insurance Company, unpublished opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 356556) 

Notably, this case involves Michigan’s pre-amendment No-Fault statutes. The plaintiff was struck by a vehicle while on an electric scooter. That vehicle was insured with Farm Bureau, however, the plaintiff filed a claim with his father’s Ohio insurer, Owners. Owners originally denied the claim indicating that the plaintiff was not a resident relative – he was, at the time, going to college at Wayne State University in Detroit. However, after suit was filed, Owners conceded that the plaintiff was a resident relative, but that it was not responsible for PIP benefits because his injuries did not arise out of “his use” of a motor vehicle as a motor vehicle as required by MCL 500.3163(1).

The appellate court agreed with this analysis because the plaintiff was not using a motor vehicle at the time of the loss, and therefore, Owners was not obligated to provide the plaintiff with Michigan No-Fault PIP benefits.

Ashley Jones v Nicolas Bernard Anderson, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 356577)

This case involves Michigan’s pre-amendment No-Fault statutes. The plaintiff was injured as a pedestrian by a motor vehicle driven by defendant Anderson. Anderson had failed to stop for another vehicle, driven by defendant Trudell, and clipped Trudell’s vehicle before veering off the road and into the plaintiff.  Anderson did not have insurance on his vehicle. Trudell’s vehicle was insured with Geico. The plaintiff’s claims were assigned by the MACP to Nationwide.

Nationwide filed a motion for summary disposition, asserting that Geico was a higher insurer because it insured Trudell’s vehicle which was “involved in the accident,” relying of MCL 500.3115(1). The appellate court rejected this argument, concluding that Trudell’s vehicle was not “involved in the accident” under the No-Fault act because it did nothing that actively contributed to the happening of the accident “beyond its mere presence.”

Karen Louise Bellmore v Friendly Oil Change, et al., published opinion of the Michigan Court of Appeals, issued May 12, 2022 (Docket No. 357660) 

The plaintiff sought PIP benefits from State Farm after falling into an oil pit while maintenance was being performed on her vehicle. She argued that she was entitled to benefits under MCL 500.3105 (1) and/or MCL 500.3106(1).

The appellate court stated that the term “maintenance” has a broad definition as defined by case law, and therefore, the plaintiff looking at the filter while the service technician was in the process of changing the filter, fell into this category. However, the appellate court noted that her injuries did not arise out of the maintenance of the vehicle. Specifically, looking at the filter did not cause her injuries. This was “merely incidental to the circumstances.”

The appellate court noted that the true reason she fell into the pit was her lack of attention to where she was walking.  Regarding her argument that the parked car exception applied, the appellate court noted that her vehicle was not “parked” for the purposes of the no-fault act, but positioned in a way to allow maintenance to her vehicle.

5 Star Comfort Care, LLC v Geico Indemnity Company, unpublished opinion per curiam of the Michigan Court of Appeals, issued May 19, 2022 (Docket No. 356786)

The claimant was prescribed in-home attendant care services. 5 Star hired the claimant’s girlfriend as an independent contractor to provide attendant care to the claimant. 5 Star paid her $10 an hour, but billed Geico $39.99 per hour. Geico argued that the charges in excess of $10 were not “incurred” under MCL 500.3107(1)(a). 5 Star relied upon the assignment of rights, which provided that the claimant certified that he incurred charges provided by 5 Star, to assert that the claimant was contractually obligated to pay 5 Star at the rate of $39.99 per hour.

However, the appellate court disagreed as “nothing in the assignment required [the claimant] to do anything – such as pay 5 Star to do anything.” Instead, the assignment only assigned 5 Star the right to collect on the benefits. The appellate court noted that “a certification that a charge exists is not the equivalent of a contract to be liable for that charge.” As such, summary disposition was warranted for Geico because only the $10 charge had been incurred.  

Shelisa Harris v Edwin Pawlitz, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 357097)

Third-party negligence suit. The trial court granted the defendant’s motion for summary disposition, determining that the plaintiff could not prove an objectively manifested injury given her pre-existing history and post-accident records, nor an effect on her general ability to lead her normal life, as required by MCL 500.3135(5). The appellate court, however, noted that the trial court improperly weighed conflicting evidence in rendering its opinion.

The appellate court found that there was evidence in the record which a trier of fact could conclude that the plaintiff had suffered an objective impairment, but that the trial court disregarded this evidence. Moreover, the appellate court noted that the trial court failed to take into consideration the fact that the plaintiff required increased help after the accident. Although how much help was required after the accident versus before the accident was not discussed, the appellate court ultimately noted that the increased help was enough to create an issue of fact regarding whether her life had been affected.    

Martin Cousineau v Janet Cousineau, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 356952)

The sudden emergency doctrine applied as a defense to the negligence claim when black ice on the road, which caused the accident, was unexpected. The appellate court noted that it had been a “beautiful sunny winter morning, about 30 degrees” and that no snow was on the roads. The plaintiff testified that the black ice had been unexpected and that the driver was driving in a reasonable manner under the circumstances. The driver agreed with these statements. Therefore, the appellate court found that there was no evidence to show that the defendant driver was acting unreasonably or that she should have expected the black ice.

Orchard Laboratories Corporation v Auto Club Insurance Association, unpublished opinion per curiam of the Court of Appeals, issued May 26, 2022 (Docket No. 356597)

Auto Club filed an motion for summary disposition, asserting that MCL 500.3145(1) barred the provider’s recovery because the action was filed more than one year after the accident as it did not receive written notice of the claim, with sufficient notice of the nature of his injuries, within one year of the accident. In the alternative, Auto Club asserted that the claims were barred by the one-year-back rule. Auto Club filed a similar notice motion in the, separately pending, underlying claimant’s case, that was granted. Therefore, Auto Club also asserted that Orchard’s claims were barred by res judicata.

The appellate court rejected Auto Club’s notice arguments as Auto Club conceded it received a copy of the police report within one year of the accident. This police report provided the claimant’s name, place and nature of the injury – noting that a truck hit the claimant’s leg and ran over his foot and that there was a “possible internal injury.” His wife had also called to report the claim within a year. The appellate court determined that this was sufficient notice of the nature of the claimant’s injuries for purpose of the statute.

In regard to the res judicata argument, the appellate court noted that an assignee is not bound by a judgement that the assignor obtained after the assignment. Therefore, the assignee is in privity with the assignor only up to the time of the assignment. Therefore, Orchard was not bound by the dismissal in the claimant’s case. Furthermore, collateral estoppel was inapplicable as Orchard was not a party to the claimant’s suit and, therefore, did not have a full and fair opportunity to litigate its claim in that action.

Kenneth Flesher v Progressive Marathon Insurance Company, et al., unpublished opinion per curiam of the Michigan Court of Appeals, issued May 26, 2022 (Docket No. 357382)

A motorcyclist was involved in an accident with an unknown motor vehicle that fled from the scene. Progressive was the No-Fault insurer for the motorcyclist, while Memberselect was the insurer for the suspected at-fault vehicle. Memberselect filed a motion for summary disposition arguing that the plaintiff and Progressive had failed to establish beyond “sheer speculation” that the vehicle had been involved in the accident.

This motion was granted by the trail court. However, the appellate court disagreed, noting that the evidence presented, and the suspected at-fault driver’s testimony inconsistencies created a genuine issue of material fact regarding whether the at-fault vehicle was involved in the accident. Therefore, summary disposition was improper.

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