Ana Dresaj v. Farm Bureau General Insurance Company of Michigan ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
ANA DRESAJ, UNPUBLISHED
May 3, 2018
Plaintiff-Appellant,
v No. 337236
Wayne Circuit Court
FARM BUREAU GENERAL INSURANCE LC No. 16-002699-NF
COMPANY OF MICHIGAN,
Defendant-Appellee.
Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendant. Plaintiff also challenges a prior order denying her motion to compel discovery.
We affirm.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
This no-fault case arises out of a car accident on April 26, 2015 at the intersection of M-
59 and Rochester Road in Rochester Hills, Michigan, in which plaintiff was injured. Plaintiff
was stopped at a red light on Rochester Road when another car failed to stop, rear-ending
plaintiff and pushing her into the car in front of her. Plaintiff was transported from the scene via
ambulance. It appears from the record that plaintiff sustained neck, back, and shoulder injuries,
as well as a few lacerations from broken glass. Plaintiff’s injuries are not in dispute.
Plaintiff filed suit against defendant, claiming that defendant, as her no-fault insurer, was
in breach of contract for failing to pay personal protection insurance (PIP) benefits to plaintiff in
accordance with the no-fault statute and provisions of her insurance contract. Specifically,
plaintiff is seeking reimbursement for medical transportation and differential wage loss benefits.
Following some discovery, plaintiff filed a motion to compel discovery and for in camera
review of documents, or alternatively, plaintiff requested defendant’s claim file be stricken.
Specifically, plaintiff argued that defendant’s claim file had not been produced, despite
defendant’s reference to the claim file in its answer to plaintiff’s interrogatories and requests for
production. Additionally, plaintiff argued that defendant had produced redacted documents,
claiming that they were privileged, but did not file a motion for a protective order or an in
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camera review of those documents by the trial court. Further, plaintiff argued that she could not
tell whether any privilege actually attached to the redacted documents or withheld claim file
because there was no privilege or redaction log provided.
Defendant filed a response to plaintiff’s motion, arguing that due to a clerical oversight,
the redacted claim file was not included with the discovery responses, however upon realizing its
error, defendant immediately sent the disc containing the redacted claim file to plaintiff.
Defendant further argued that surveillance video prepared in anticipation of litigation constitutes
work product, and is subject to qualified immunity as part of the work product doctrine. The
evidence sought by plaintiff is also protected by the private investigator-client privilege found in
MCL 338.840. Further, defendant argued, plaintiff had not shown a substantial need and undue
hardship to overcome any privilege. Defendant also argued that it did not need to produce its
surveillance evidence unless it intends to use such evidence as impeachment evidence at trial.
Defendant noted that plaintiff had yet to testify at any deposition, and it did not need to give
plaintiff “a roadmap to conform [her] testimony to any surveillance video, if such video exists.”
Following a hearing, the trial court denied plaintiff’s motion to compel, but ordered that if
defendant decided to use the surveillance, it must be provided to plaintiff following her
deposition.
After the close of discovery, defendant filed its motion for summary disposition pursuant
to MCR 2.116(C)(10). Defendant argued that plaintiff was not entitled to PIP benefits due to
fraud in her application for benefits. Specifically, plaintiff had fraudulently misrepresented that
she was unable to drive or work because of the accident. In its supporting brief, defendant first
addressed plaintiff’s fraud with respect to driving. Despite plaintiff’s treating physician
determining that plaintiff was “disabled” from driving, and stating medical transportation was a
necessity, plaintiff was observed on June 10, 2015 “entering a Ford Windstar van and driving to
Fox Elementary School, to presumably pick up her children. Unfortunately the investigator
[hired by defendant through Jane Doe Investigations] lost track of [p]laintiff, due to the crowded
nature of the school and being stopped by a crossing guard to let the children cross the street.”
Defendant further argued that plaintiff had fraudulently misrepresented that she was
unable to work. Two weeks before the accident, plaintiff had been promoted from waitress to
manager at Zorba’s Grill (Zorba’s): she became a full-time employee and her salary increased to
$600 per week. However, after the accident, she was unable to return to Zorba’s due to her
accident related injuries. Plaintiff claimed she was unable to work from the date of the accident
until March 14, 2016, when she accepted a housekeeping position through Beaumont Health
System. Because plaintiff makes less money at Beaumont than she did as a manager at Zorba’s,
she is seeking wage loss differential benefits. However, defendant produced evidence that
plaintiff was observed by a private investigator on May 28, 2016 working as a server at Zorba’s.
Plaintiff was observed “carrying items in both of her hands multiple times, serving drinks to
customers at the table, serving food, retrieving dirty dishes from the table, using the cash
register, and cleaning tables after patrons finished eating.” Defendant argued that plaintiff’s
claims for medical transportation reimbursement and differential wage loss are contradicted by
the surveillance videos, and “amount to a clear violation” of defendant’s insurance policy.
Specifically, the policy states that it becomes null and void if “you, any family member, or any
insured under this policy has intentionally concealed or misrepresented any material fact or
circumstance, engaged in fraudulent conduct, or made false statements.” Therefore, pursuant to
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Bahri v IDS Property Casual Insurance Company, 308 Mich. App. 420; 864 NW2d 609 (2014),
defendant was entitled to summary disposition in its favor.
The trial court heard oral argument on defendant’s motion for summary disposition where
the parties argued consistent with their briefs. Plaintiff admitted that she was the individual
shown in the surveillance video, but argued that her claim for differential wage loss benefits was
unaffected because plaintiff was not paid for her assistance at Zorba’s. Plaintiff submitted an
affidavit to the same effect. With respect to plaintiff’s differential wage loss claim, the trial court
stated:
There is no case that I know of and no case cited by plaintiff that addresses what
plaintiff contends is the law. That is, if you’re not being paid to work when
you’re allegedly working where you say you can’t work, that that’s okay. You’re
not committing fraud so long as you’re not being paid to work.
After arguing back and forth with plaintiff’s counsel, the trial court ruled in defendant’s favor,
finding:
I saw still photos that were part of the defendant’s brief showing the
plaintiff working, whether for pay or for nothing, at Zorba’s Restaurant at a time
when she claimed two weeks later that she hadn’t been able to work after those
few days that she returned to work immediately after or shortly after the accident
in question.
She is working. Photographs show it. Video show[s] it. And she said she
had not worked subsequent to those few days at Zorba’s shortly after the accident.
She made a material misrepresentation to Farm Bureau General Insurance
Company. The motion is granted under MCR 2.116(C)(10).
The trial court did not address the parties’ arguments regarding plaintiff having driven while
disabled from driving. A written order granting defendant’s motion for summary disposition was
entered on February 17, 2017. This appeal followed.
II. PLAINTIFF’S MOTION TO COMPEL
Plaintiff first argues that the trial court erroneously denied her motion to compel
production of defendant’s surveillance videotapes, or at a minimum, disclose the dates of the
surveillance. Plaintiff contends that because the surveillance tapes are evidence, they should
have been produced, and further, that no work-product privilege should have attached.
Regardless of whether the surveillance tapes were privileged, or whether the trial court
should have ordered the tapes turned over to plaintiff before her deposition, this issue is moot.
An issue is “moot when an event occurs that renders it impossible for a reviewing court to grant
relief.” B P 7 v Bureau of State Lottery, 231 Mich. App. 356, 359; 586 NW2d 177 (1998). After
plaintiff’s deposition, in compliance with the trial court’s order, defendant waived any privilege
it may be able to assert regarding the surveillance tapes and turned over the tapes of plaintiff.
“As a general rule, an appellate court will not decide moot issues.” Id. Because plaintiff has
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already received the surveillance videos she sought, there is no further relief this Court could
grant, and therefore, this issue is moot and need not be addressed. Id.
III. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
Next, plaintiff argues the trial court erroneously granted summary disposition in favor of
defendants after relying more on the surveillance reports and surveillance video submitted by
defendant than plaintiff’s affidavit and payroll documentation submitted in support of her
position. We disagree.
We review a trial court’s decision regarding a motion for summary disposition de novo.
Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5-6; 890 NW2d 344 (2016). A motion for summary
disposition brought under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint,”
Shinn v Mich Assigned Claims Facility, 314 Mich. App. 765, 768; 887 NW2d 635 (2016) (citation
omitted), and should be granted where “there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” West v Gem Motors Corp, 469
Mich. 177, 183; 665 NW2d 468 (2003).
“The moving party has the initial burden to support its claim for summary disposition by
affidavits, depositions, admissions, or other documentary evidence.” McCoig Materials, LLC v.
Galui Constr, Inc, 295 Mich. App. 684, 693; 818 NW2d 410 (2012). The court must consider all
of the admissible evidence in a light most favorable to the nonmoving party. Liparoto Constr,
Inc v Gen Shale Brick, Inc, 284 Mich. App. 25, 29; 772 NW2d 801 (2009). However, the party
opposing summary disposition under MCR 2.116(C)(10) “may not rely on mere allegations or
denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a
genuine issue of material fact exists.” Oliver v Smith, 269 Mich. App. 560, 564; 715 NW2d 314
(2006) (citation omitted). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” Bahri, 308 Mich. App. at 423 (citation and quotation marks omitted).
Plaintiff contends that the trial court relied on the surveillance reports and video more
heavily than the affidavit and payroll documentation submitted by plaintiff in support of her
position. However, a party cannot rely on an affidavit to create a material issue of fact where
that affidavit contradicts the party’s prior deposition testimony. Dykes v William Beaumont
Hospital, 246 Mich. App. 471, 479-480; 633 NW2d 440 (2001). In this case, plaintiff explained
during her deposition that she was unable to return to work as a manager or server at Zorba’s
because she was “having a hard time moving,” due to the back injuries she sustained in the
accident. However, on March 14, 2016, plaintiff was hired to do housekeeping work at
Beaumont Hospital in Troy, Michigan. At Beaumont, plaintiff testified that she is responsible
for “cleaning patients’ rooms, cleaning bathroom, [and] fixing the beds.” It is undisputed that
plaintiff makes less money working at Beaumont than she did as a manager at Zorba’s.
In support of its motion for summary disposition, defendant submitted surveillance video
and reports showing plaintiff working at Zorba’s on May 28, 2016. Plaintiff or her counsel do
not dispute that plaintiff is the individual shown in the surveillance video working at Zorba’s. In
an attempt to explain her presence at Zorba’s on the date in question, plaintiff submitted an
affidavit with her response to defendant’s motion for summary disposition, admitting that on
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May 28, 2016, she provided assistance at Zorba’s. Plaintiff maintained, however, that she did
not get paid for her assistance. In essence, plaintiff argues that because she did not get paid for
the work she did at Zorba’s, she did not fraudulently misrepresent the extent of her injuries
relating to her differential work loss claim. However, given plaintiff’s deposition testimony, that
she could not physically return to work at Zorba’s, the trial court did not err by declining to
consider plaintiff’s contrary affidavit, stating that on May 28, 2016, she was assisting at Zorba’s
but did not get paid. Dykes, 246 Mich. App. at 479-480.
Similarly, the trial court’s findings reflect that it did consider the payroll statements
showing that plaintiff had not been paid by Zorba’s since May 9, 2015, but found them to be
immaterial. Specifically, the trial court found:
There is no case that I know of and no case cited by plaintiff that addresses what
plaintiff contends is the law. That is, if you’re not being paid to work when
you’re allegedly working where you say you can’t work, that that’s okay. You’re
not committing fraud so long as you’re not being paid to work.
We agree with the trial court, and conclude that the fact that plaintiff was not paid for her
assistance at Zorba’s does not create a question of fact regarding plaintiff’s fraudulent
misrepresentations. The issue is not whether plaintiff was paid for her assistance at Zorba’s, the
issue is the fact that plaintiff was performing work that she claimed she was physically unable to
perform. Accordingly, plaintiff’s claim is without merit.
Finally, we note that in her statement of the questions presented, plaintiff only argues that
the trial court erred in “granting summary disposition by making a credibility determination
reviewing video surveillance versus the documents produced in support of plaintiff’s position
and the testimony of plaintiff and her sister.” However, plaintiff goes on to argue in her brief
that the trial court erred in finding that summary disposition was appropriate based on plaintiff’s
alleged material misrepresentation relating to her differential wage loss claim and her claim for
reimbursement of medical transportation costs. Additionally, plaintiff raises evidentiary and
foundational challenges to the surveillance video and surveillance reports submitted by
defendant in support of its motion for summary disposition. However, because “[a]n issue not
contained in the statement of questions presented is waived on appeal,” we decline to address
plaintiff’s arguments. English v Blue Cross Blue Shield of Mich, 263 Mich. App. 449, 459; 688
NW2d 523 (2004).
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Kathleen Jansen
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