Michigan Court of Appeals; Docket #352079; Unpublished
Judges Stephens, Kelly, and Riordan; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Fraudulent Insurance Acts [§3173a]
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Michelle Hines’s first-party action against the Michigan Automobile Insurance Placement Facility (“MAIPF”). The Court of Appeals held that a question of fact existed as to whether Hines had permission to take the vehicle she was driving at the time of the subject crash, and whether, therefore, she was eligible for no-fault PIP benefits through the MAIPF.
Michelle Hines was injured in a motor vehicle collision while operating a vehicle belonging to Lee Beard. At the time of the crash, Hines was not a named insured on any automobile insurance policy, nor was Beard. Thus, Hines sought PIP benefits through the MAIPF, who denied her claim because of inconsistent statements she and Beard made in their respective depositions regarding whether Hines had explicit permission to use the vehicle on the date and time in question. Hines testified that she and Beard had a phone conversation in which she explicitly asked to drive the vehicle, and in which he explicitly responded that she could. Beard testified that a phone conversation did occur, but that, at no point, either in that conversation or at any point prior, had he ever given Hines permission to drive the vehicle. The MAIPF moved for summary disposition in Hines’s subsequent first-party action, arguing that, because Hines had responded “yes” on her application for benefits to the MAIPF when asked whether she had permission to use the vehicle, she had made a material misrepresentation which rendered her claim for benefits through the MAIPF ineligible for payment pursuant to MCL 500.3173(A)(2).
The Court of Appeals reversed the trial court’s summary disposition order, holding that Hines’s deposition testimony alone—in which she claimed to have received explicit permission to drive the vehicle—was sufficient to create a question of fact as to whether she did, in fact, receive such permission. The Court ultimately reasoned that, because a question of fact existed as to whether she had permission to use the vehicle, a question of fact also existed as to whether she made a material misrepresentation on her application for benefits to the MAIPF.
“The phone records are unrebutted as to whether a call originated between the two numbers provided by Hines at her deposition. However, both Hines and Beard testified that a phone conversation occurred that morning, albeit they disagreed as to the content of that conversation. Hines testified that she spoke to Beard regarding use of the vehicle on the morning of the incident and that she was given permission to use that vehicle during that call. Beard admitted receiving Hines’s call, but denied giving her permission to use the vehicle in the call. Hines’s testimony alone is sufficient to raise a question of fact on the nature of the conversation. The phone records are not dispositive of the contents of the call which both parties to call admit occurred. Assuming at trial, Hines testifies that she used another phone to reach Beard, she will be subject to blunt impeachment. Her only path to recovery will be to establish that she was given express permission on the day of the incident in a phone call. The fact-finders will then resolve the conflicting testimony because, as the jury instruction reads, the fact finders ‘are free to believe all, none, or part of any person’s testimony.’ ”