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Flesher v Progressive Marathon Ins Co, et al (COA – UNP 5/19/2022; RB #4413)

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Michigan Court of Appeals; Docket #357382; Unpublished
Judges Letica, Markey, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Determination of Involved Vehicle [§3114]

TOPICAL INDEXING:
Evidentiary Issues


SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Kenneth Flesher’s first-party action against Defendant MemberSelect Insurance Company (“AC-MS”). The Court of Appeals held that Flesher presented sufficient evidence to create a question of fact as to whether a GMC Yukon owned by AC-MS’s insured was involved in a hit-and-run collision with Flesher’s motorcycle.

On July 4, 2016, Kenneth Flesher was driving his motorcycle through the city of Flint, Michigan when a motor vehicle crashed into him while attempting a left turn. The motor vehicle fled the scene, and the responding officer wrote in his police report that the motor vehicle was a white Ford pickup truck with a topper; that the truck sustained functional damage; and that the truck “ ‘should have d[a]rk blue or purple paint from the motorcycle / right front end & right pass[enger] side damage’ ”—although the officer could not later recall where or from whom he obtained any of that information, or any details of the crash at all. After the crash, Flesher’s sister, Danielle, began conducting her own investigation into how the crash occurred, communicating with numerous individuals on the local police department’s Facebook page who claimed to have witnessed the crash. The day after the crash, as Danielle was driving to Flesher’s house, she noticed a GMC Yukon Denali XL parked on the street with damage to its front. She took photos of the vehicle and returned to her car to call 911, when the owner of the Yukon, Nicholas Fetzer, walked out to the Yukon and entered it. Danielle pulled up next to Fetzer and asked him whether he had been involved in a crash the previous night. Fetzer denied that he had, stating first that he was at a fireworks show in Frankenmuth the night prior, but later changed the location of the fireworks show to Bay City. Danielle then asked Fetzer about the damage to the vehicle, and Fetzer replied that it was none of her business. Fetzer then, according to Danielle’s testimony, reversed all the way back down the street in what she perceived to be an attempt to conceal his license plate.

In Flesher’s deposition, he testified that the vehicle that hit him was “like a Yukon or a truck of some sort, white, older,” and that it was “more the driver’s side” that hit him, “[d]efinitely wasn’t the passenger’s side.” Fetzer, meanwhile, testified in his deposition that he was at a fireworks show in Bay City on the date of the collision, despite undisputed evidence that the 4th of July Bay City fireworks shows were actually held on July 1st and 2nd. Fetzer equivocated about how the front of the Yukon came to be damaged, but maintained that he was not involved in the crash. He also claimed the Yukon was repossessed shortly after the crash because he “intentionally stopped making the $400 monthly payments” given the high interest rate on his loan. When Fetzer’s counsel attempted to acquire cell phone information from Fetzer to obtain tracking information, he testified that he did not remember what kind or type of phone he had on July 4, 2016, nor who his cellular service provider was. He further testified that he was in an on-again, off-again relationship with a woman around the date of the collision, but that he did not know her address or have any contact information for her.

AC-MS insured Fetzer’s Yukon, and it retained Crash Services, Inc. to perform a “vehicle-damage and crash-data analysis” of the crash based on the photographs of the vehicles involved, various documents related to the crash, and a visit to the intersection where the crash occurred. Ultimately, Crash Services, Inc. concluded that, “The damage on [Flesher’s motorcycle] was not consistent with having been created by contact with the GMC Yukon,” and that, “Based on the information available, it is concluded that the Yamaha motorcycle was involved in a head-on collision with a vehicle other than the GMC Yukon.” In Flesher’s subsequent first-party action against AC-MS, AC-MS moved for summary disposition, arguing that there was no evidence that Fetzer’s Yukon was involved in the collision. The trial court agreed and granted AC-MS’s motion.

The Court of Appeals reversed the trial court’s summary disposition order, holding, first, that the inconsistencies in Fetzer’s testimony were so numerous and significant that a reasonable juror could conclude that he was lying about his involvement in the subject crash.

“We begin with a discussion of Fetzer’s deposition testimony. It is certainly true that this panel cannot assess Fetzer’s credibility and find that he was either being truthful or lying when testifying. We can, however, make a determination in any given case that reasonable jurors could conclude based on the evidence that a party or person was not being truthful, and thus the trier of fact must be allowed to assess credibility. See White v Taylor Distrib Co, Inc, 482 Mich 136, 142-143; 753 NW2d 591 (2008) (under the legal and factual circumstances of a case, we do not ignore inconsistencies in statements by parties, which are properly left for a jury to address and resolve). Here, in light of the evasiveness of Fetzer’s deposition testimony, the inconsistencies between his testimony and other evidence, the inconsistencies within his own deposition, the questionability of some of his claims, and the lack of sound explanations on pertinent issues, we find that a reasonable juror could reach the conclusion that Fetzer was being less than truthful in his deposition. More specifically, the evidence that Bay City did not have a fireworks show on July 4, 2016, if true, calls into question Fetzer’s alibi and his whereabouts at the time of the accident. Furthermore, Fetzer’s claims regarding the purported attempted robbery and shooting that shattered the rear window of the Yukon were highly suspicious because they require one to believe that the police did not ask him to remain at the scene, did not ask him to provide a statement, and did not follow up on a very serious crime. Additionally, Fetzer did not appear to provide any real explanation regarding the presence of the scuffmarks on the driver’s side front bumper, other than resorting to a claim that the photographs may have been photoshopped. Moreover, there was Fetzer’s testimony with respect to the address and phone number of his former girlfriend and his cell phone usage, which could reasonably be construed as evasive.

AC-MS argues that Fetzer’s testimony and its inconsistencies merely demonstrated a lack of recall or memory of events that occurred two years earlier, which was understandable given the passage of time. AC-MS may indeed be correct, but it is for a jury to ascertain whether Fetzer’s testimony reflected innocent memory lapses or intentional fabrications. Also, accepting Danielle’s testimony as true, Fetzer’s claim about attending the Bay City fireworks show was made the day after he supposedly attended the fireworks. And memory issues were unlikely entangled with matters regarding the alleged shooting that almost killed Fetzer and shattered the Yukon’s window.”

The Court of Appeals held, second, that Danielle’s interaction with Fetzer the day after the crash and his alleged reversal down the street “could reasonably be construed as reflecting a consciousness of guilt,” which also weighed against granting the motion for summary disposition.

“With respect to Danielle’s interaction with Fetzer on July 5, 2016, her deposition testimony, which we accept as true for purposes of the (C)(10) motion, revealed behavior by Fetzer from which it could reasonably be inferred that he had been involved in the accident. Although he denied that the Yukon had struck plaintiff’s motorcycle, he did not answer Danielle’s question about the cause of the damage to his vehicle. And he backed up the Yukon and took off when Danielle informed him that she had contacted the police about the matter. His refusal to answer and subsequent flight could reasonably be construed as reflecting a consciousness of guilt. This evidence weighed against granting the motion for summary disposition.”

The Court held, third, that it was up to the jury to decide whether Flesher’s testimony that it appeared to be a Yukon that hit him was credible, and fourth, that the analysis of AC-MS’s accident reconstructionist was “fairly cursory,” and far from dispositive.

“With respect to the description of a white Ford pickup truck with a white topper or bed cap, we have reviewed the photographs of Fetzer’s GMC Yukon Denali, and we can easily see how one could confuse the vehicle with a truck with a topper, especially considering that the accident happened at night and evolved quickly. Further, the crash report did not identify the person or persons who provided the information to Officer Coe about a Ford pickup truck, nor did the report provide any information regarding the certainty of the witnesses, the ability of them to see the hit-and-run vehicle, and the length of time that they had to observe the vehicle. Moreover, plaintiff testified that it may have been a Yukon that hit him. While plaintiff’s testimony may have been influenced by his sister, the credibility of his testimony and the weight to give the testimony are for a jury to assess.

With respect to Fetzer’s denials of any involvement in the accident, his credibility must be evaluated by the trier of fact in light of the inconsistencies and other troubling aspects relative to his deposition testimony. In regard to the accident reconstructionist’s opinion, we note some concerns with his view that the slight-in-severity damage to the Yukon was not consistent with the extensive damage to the motorcycle. First, in viewing the photographs of the damage to the Yukon, which the reconstructionist relied on, we have difficulty understanding how or if he assessed the depth and extent of any dents underneath the scuffmarks. Also, plaintiff’s account of the accident and his evasive maneuvers, along with the reconstructionist’s observation that the scuffmarks traveled ‘in a front to rear direction,’ seemed to suggest that it may have been more of a glancing blow when the motor vehicle struck the motorcycle. Finally, the reconstructionist did not appear to consider that the damage to the motorcycle could be attributed, at least in part, to how and where it landed, which included hitting a curb, and not solely the contact between the motorcycle and the hit-and-run vehicle. The analysis or reasoning set forth by the accident reconstructionist was fairly cursory.”

Ultimately, the Court found that two issues, alone, were sufficient to create a question of fact as to whether the Yukon was involved in the crash: “[(1)] the fact that the Yukon did indeed have damage to the rounded corner of the front bumper on the driver’s side of the vehicle, when considered in conjunction with [(2)] Fetzer’s deposition testimony and behavior when confronted by Danielle.” The Court’s ultimate holding, in full, reads:

“Regardless of these concerns, the fact that the Yukon did indeed have damage to the rounded corner of the front bumper on the driver’s side of the vehicle, when considered in conjunction with Fetzer’s deposition testimony and behavior when confronted by Danielle, supplied adequate evidence to create an issue of fact regarding whether the Yukon was involved in the accident. AC-MS claims, correctly so, that the 911 event chronology provided that the hit-and-run vehicle should have damage to the right or passenger side of the vehicle. But contrary to that evidence, plaintiff testified that the front driver’s-side of the motor vehicle struck his motorcycle, thereby creating an issue of fact on that matter. With respect to whether there was any blue paint transference on the Yukon, the scuffmarks look to be black, but we cannot say that definitively. And as mentioned earlier, one of the photographs of the Yukon appears to show some blue markings. More importantly, Danielle testified that she observed blue paint on the Yukon, and it is for a jury to assess her credibility and weigh the evidence. When all of the documentary evidence is considered, and considered in a light most favorable to Progressive, we conclude that the evidence established a genuine issue of material fact regarding whether the Yukon hit the motorcycle on July 4, 2016. Therefore, the trial court erred by granting the motion for summary disposition.”


Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit SinasDramis.com.

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