Jami Lessard v. James Whittemore ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JAMI LESSARD, UNPUBLISHED
September 3, 2019
Plaintiff,
and
DWAYNE PARLER,
Plaintiff-Appellant,
v Nos. 338306
Macomb Circuit Court
JAMES WHITTEMORE, LC No. 2016-001775-NI
Defendant,
and
HOME-OWNERS INSURANCE COMPANY,
Defendant-Appellee,
JAMI LESSARD
Plaintiff-Appellant,
and
DWAYNE PARLER,
Plaintiff,
v Nos. 344653
Macomb Circuit Court
JAMES WHITTEMORE, LC No. 2016-001775-NI
-1-
Defendant,
and
HOME-OWNERS INSURANCE COMPANY,
Defendant-Appellee,
Before: K. F. Kelly, P.J., and Tukel and Redford, JJ.
PER CURIAM.
In these consolidated cases, plaintiffs have sought personal protection insurance (PIP)
benefits. In Docket No. 338306, plaintiff Dwayne Parler appeals by leave granted1 the trial
court’s order granting in part and denying in part Parler’s motion for reconsideration. Relevant
here, the trial court declined to reinstate Parler’s claims for wage-loss benefits and replacement
services. In Docket No. 344653, plaintiff Jami Lessard appeals by delayed leave granted2 a prior
order which granted summary disposition to Home-Owners on all of Lessard’s claims. For the
reasons provided below, we affirm the grant of summary disposition as to Lessard’s claims and
reverse the grant of summary disposition as to Parler’s claims for lost wages and replacement
services.
I. BASIC FACTS
This case arises out of a traffic accident that occurred on December 21, 2015. Defendant
James Whittemore’s vehicle struck the rear of Lessard’s vehicle, in which Parler was a
passenger. Both Lessard and Parler filed claims for first-party no-fault benefits against Home-
Owners, Lessard’s no-fault insurer.3 Plaintiffs’ claims included claims for reasonable and
necessary expenses for care, recovery, or rehabilitation; lost wages; and reasonable and
necessary replacement services.
Lessard testified that she injured her head, neck, back, and knee as a result of the
accident. She also testified that she did not have any head, neck, or back problems “before the
accident” and further stated that she had not had any knee problems in the five years preceding
the December 21, 2015 accident.
1
Lessard v Whittemore, unpublished order of the Court of Appeals, entered October 6, 2017
(Docket No. 338306).
2
Lessard v Whittemore, unpublished order of the Court of Appeals, entered August 29, 2018
(Docket No. 344653).
3
Although not at issue on appeal, plaintiffs also alleged a negligence count against defendant
Whittemore and an uninsured motorist claim against defendant Home-Owners.
-2-
With respect to plaintiff Parler’s claim for lost wages, he testified that he had owned his
own lawn care and snow removal business, called “D’s Lawn Care” and “D’s Snow Removal,”
for at least two or three seasons. He never filed any paperwork with the State of Michigan
regarding the business and had never filed a tax return regarding the business. 4 Parler testified
that two people worked with him and that he paid them in cash. He stated that he did not have a
bank account for himself or the business. He testified that he earned a little over $300 per week.
He provided spreadsheets listing the snow removal and lawn care services that he rendered from
January 11, 2015, until June 22, 2015. When asked why the listings did not contain any names
or specific addresses, Parler testified that his business was a “walk-up” business and that he did
not need to know names or addresses.
Regarding replacement services, Parler testified that he moved out of Lessard’s residence
within one or two weeks after the accident. Parler denied being homeless but testified that he
stayed at different places for a few days at a time. He claimed that the address listed on his
driver’s license was his sister’s residence and that he used it as his “mailing address.” Parler
testified that a family friend, James Alexander, performed replacement services for him by
coming to the residences at which Parler temporarily stayed. Parler maintained that Alexander
also assisted him by picking up his children and bringing them to Parler and helping Parler
prepare meals for his children. Parler testified that when he stayed with his sister, she also
provided replacement services. Parler stated that his claim for replacement services covered the
period immediately after the accident in December 2015 until the beginning of September 2016.
Home-Owners filed two motions for summary disposition, one for each plaintiff, arguing
that because both plaintiffs had engaged in fraudulent conduct with respect to their claims,
Lessard’s no-fault policy was voided, which precluded plaintiffs from any recovery.
Specifically, with respect to Lessard, Home-Owners argued that the insurance policy was
void because she had made numerous false statements that constituted fraud under this Court’s
decision in Bahri v IDS Prop Cas Ins Co, 308 Mich. App. 420; 864 NW2d 609 (2014). Home-
Owners alleged that Lessard made fraudulent misrepresentations regarding alternate names she
went by, the residence of Parler, her pre-existing conditions, and her use of pain medication.
And with respect to Parler, Home-Owners noted that for his claim for replacement
services, it was “illogical” that someone would come to whichever house at which Parler was
staying and perform household services for him. Moreover, Home-Owners asserted that even “if
[Parler] had no particular residence and was just crashing at different people’s houses, he cannot
submit a claim for household services . . . .” And with respect to Parler’s claim for wage-loss
benefits, Home-Owners argued that his claim was fraudulent because he testified that he never
paid any taxes for his income, had no bank accounts for his company, and could not provide a
“single address of any home anywhere in the world where he actually performed” lawn or snow
service.
4
Additionally, when asked whether he had filed a personal tax return in the previous five years,
Parler testified that he had not. Indeed, he did not think he ever had filed a personal tax return.
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In a March 3, 2017, opinion and order, the trial court determined that Home-Owners had
presented evidence that both plaintiffs had made false statements regarding their medical
histories, residency, ownership of vehicles, and employment. Relying on this Court’s decision in
Bahri, the trial court held that plaintiffs could not recover PIP benefits, and the court granted
Home-Owners’ motions for summary disposition.5
Plaintiff Parler filed a motion for reconsideration, arguing that, pursuant to this Court’s
recent decision in Shelton v Auto-Owners Ins Co, 318 Mich. App. 648; 899 NW2d 744 (2017), an
insurer’s contractual provision against misrepresentation or fraud cannot be used to bar the no-
fault claims of an individual, who, like Parler, is not a party to the contract. The court agreed
that Parler, as a nonparty to the insurance policy, was not subject to the policy’s exclusionary
clause pertaining to fraud. However, the court held that Home-Owners still could rely on fraud
as an affirmative defense to a statutory claim for benefits. Thus, because Home-Owners only
proved that Parler had made fraudulent statements with respect to the claims for replacement
services and lost wages, the court granted the motion for reconsideration with respect to Parler’s
claim for medical benefits and denied the motion with respect to Parler’s claims for replacement
services and lost wages.
II. STANDARD OF REVIEW
We review issues of statutory interpretation de novo. PNC Nat’l Bank Ass’n v Dep’t of
Treasury, 285 Mich. App. 504, 505; 778 NW2d 282 (2009). We also review de novo a trial
court’s decision on a motion for summary disposition. Dalley v Dykema Gossett, 287 Mich. App.
296, 304; 788 NW2d 679 (2010). A motion for summary disposition brought pursuant to MCR
2.116(C)(10) tests the factual sufficiency of the complaint. Id. at 304 n 3. When deciding on a
motion under this subrule, a court must consider “the pleadings, admissions, affidavits, and other
relevant documentary evidence of record in the light most favorable to the nonmoving party.”
Walsh v Taylor, 263 Mich. App. 618, 621; 689 NW2d 506 (2004). Importantly, “courts may not
resolve factual disputes or determine credibility in ruling on a summary disposition motion.”
White v Taylor Distributing Co, Inc, 275 Mich. App. 615, 625; 739 NW2d 132 (2007) (quotation
marks and citation omitted); see also Skinner v Square D Co, 445 Mich. 153, 161; 516 NW2d 475
(1994). The motion is properly granted if there are no genuine issues regarding any material fact
and the moving party is entitled to judgment as a matter of law. Klein v HP Pelzer Auto Sys, Inc,
306 Mich. App. 67, 75; 854 NW2d 521 (2014). “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.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d
468 (2003).
5
The trial court also found more generally that Parler had failed to rebut evidence showing that
he had (1) lied about criminal history, in that he denied ever having used another name, while
criminal history records showed that he had used the name “Byron Sloss,” and (2) that his claim
that he had never been convicted of a felony was false, in that he had been convicted of armed
robbery. Those falsities, which were noted in the trial court’s initial ruling, did not factor in its
ruling on rehearing, which is what is at issue on appeal.
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III. DOCKET NO. 338306
Parler argues that the trial court erred when it granted Home-Owners’ motion for
summary disposition on the basis that Parler’s claims for replacement services and wage-loss
benefits were fraudulent. We agree.
At the outset, we note that the trial court properly determined, in deciding on Parler’s
motion for reconsideration, that because Parler was not an insured, he was not subject to the
policy’s fraud provisions. Because Parler was a passenger in the car at the time of the accident,
did not own a car, did not have no-fault insurance, and did not reside with a relative who did
have no-fault insurance, he was seeking benefits directly under Michigan’s no-fault act, MCL
500.3101 et seq., and not through the policy. See Shelton, 318 Mich. App. at 652. At the time of
the litigation, MCL 500.3114 stated, in pertinent part, the following:
(1) Except as provided in subsections (2), (3), and (5), a personal protection
insurance policy described in [MCL 500.3101(1)] applies to accidental bodily
injury to the person named in the policy, the person’s spouse, and a relative of
either domiciled in the same household, if the injury arises from a motor vehicle
accident. . . .
* * *
(4) Except as provided in subsections (1) to (3), a person suffering accidental
bodily injury arising from a motor vehicle accident while an occupant of a motor
vehicle shall claim personal protection insurance benefits from insurers in the
following order of priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied.[6]
Thus, because Parler’s benefits are governed “solely by statute,” the exclusionary provisions,
including any fraud exclusionary provision, contained in the policy do not apply “and cannot
operate to bar” Parler’s claims. Shelton, 318 Mich. App. at 653.
Despite finding that Shelton precluded the application of the policy’s fraud exclusion
provision, the trial court opined that fraud could still constitute an affirmative defense to a claim
for statutory benefits. As such, the court granted Home-Owners’ motion for summary
disposition with respect to Parler’s claims for replacement services and wage-loss benefits. The
trial court stated:
6
Effective June 11, 2019, this section was amended. 2019 PA 21.
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[T]he Court is still convinced that there is no question of fact Home-Owners has
established fraud regarding Parler’s claim for replacement services and lost
wages.
Parler’s inability to establish his residence demonstrates fraud as to his
claim for replacement services, rendering summary disposition in favor of Home-
Owners proper as to that portion of his claim. Parler has also failed to provide
any supporting evidence of his claim for lost wages. As such, summary
disposition is also appropriate as to that part of his claim.
We agree with Parler that the trial court impermissibly weighed the evidence in making
its rulings. As already noted, when ruling on a motion for summary disposition under MCR
2.116(C)(10), a court must consider all the submitted evidence in a light most favorable to the
nonmoving party, Walsh, 263 Mich. App. at 621, and a court may not assess credibility, White,
275 Mich. App. at 625. Thus, in order for Home-Owners’ motion to have been properly granted,
there must have been no dispute in the evidence that Parler committed fraud related to his claims.
A. REPLACEMENT SERVICES
Regarding Parler’s claim for replacement services, in its motion for summary disposition,
Home-Owners specifically relied on the following from Parler’s deposition:
Q. So this friend, James Alexander, how often did he help you?
A. Well, when I first moved out and I was moving around a lot, he came,
wherever I was at, you know.
Q. Every day?
A. Almost every day. . . .
* * *
Q. Okay. Let me clarify a few things. You didn’t have a specific place
where you lived after the accident, right?
A. No.
Q. Okay. So why would someone need to clean a place if it wasn’t your
place, after the accident?
A. Because if they was allowing me to stay there in that two to three day
period.
Q. They would expect you to clean it for those two to three days?
A. Yeah. If they allow me to have my kids come over [to] their house,
trample through it, it had to be cleaned up, it had to be fixed.
-6-
The trial court presumably also relied on this testimony and ruled that “Parler’s inability to
establish his residence demonstrates fraud as to his claim for replacement services.” Apparently,
the court was reasoning that because Parler did not identify any particular residence at which he
stayed after moving out of Lessard’s home sometime after the accident, it was proof-positive that
his testimony was false or fraudulent. But whether Parler identified which dates he spent at
certain places after moving out of Lessard’s place does not necessarily show that his testimony
was knowingly false. While a jury ultimately may find Parler’s testimony not credible, there is
nothing in the record to show that his testimony necessarily was knowingly untrue.
Moreover, to the extent the trial court’s ruling could be viewed as applying a black-letter
rule that the recovery of replacement services is prohibited if the services were not provided at a
traditional “residence” (or alternatively, that recovery is limited to situations in which the
services were provided at the same location at which the claimant resided before the accident),
that interpretation is not supported by the plain language of the no-fault act. MCL
500.3107(1)(a)(c) defines expenses for such replacement services as
[e]xpenses not exceeding $20.00 per day, reasonably incurred in obtaining
ordinary and necessary services in lieu of those that, if he or she had not been
injured, an injured person would have performed during the first 3 years after the
date of the accident, not for income but for the benefit of himself or herself or of
his or her dependent. [See also Johnson v Recca, 492 Mich. 169, 174-175; 821
NW2d 520 (2012); In re Carroll, 300 Mich. App. 152, 160-161; 832 NW2d 276
(2013).]
Therefore, all that is required to be a valid, recoverable replacement expense is that the expense
be reasonably incurred in obtaining ordinary and necessary services which, if Parler had not been
injured, he would have performed himself. Neither the trial court nor Home-Owners has
identified any authority that requires the services to have been supplied at the same “residence”
the claimant had before the accident. Indeed, the statute does not require these services to have
been rendered at any particular location; instead, the replacement-services benefit simply applies
“to all manner of ordinary or mundane household services that the injured person might have
performed.” In re Carroll, 300 Mich. App. at 161. Thus, if a plaintiff incurred expenses for
“ordinary and mundane” services that he would have performed, even while temporarily staying
at someone else’s home, then those expenses would be compensable. Accordingly, the trial
court erred when it determined that Parler’s testimony necessarily constituted fraud which
precluded his claims for replacement services.
B. LOST WAGES
The trial court likewise erred when it ruled that there was no question of fact that Parler
had engaged in fraud with respect to his claim for lost wages. The court found that fraud existed
because Parler had “failed to provide any supporting evidence of his claim for lost wages.” The
court relied on the fact that despite Parler claiming that his source of income was from his snow
removal and landscaping business, Parler testified that he earned some money by “hustling.”
The court apparently found that these statements were contradictory and therefore constituted
fraud. The pertinent discussion at the deposition is as follows:
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Q. Where would you get the money to do this [go to the clubs], though?
A. Wherever, you know, it’s a hustle everywhere. Everybody grew up
different. It’s a hustle everywhere.
Q. What were you hustling?
A. What do you mean?
Q. You just said you were hustling.
A. If someone said, hey, man, I give you $50 to move a couch, I do it. If
you want to make [$]25 driving me from Port Huron to Mount Clemens. I’m not
saying you got to be lazy, but if you want to make a couple dollars, you can.
Home-Owners’ theory was that because Parler had admitted that his source of income was from
“hustling,” his claim for lost wages related to a snow removal and landscaping business must be
fraudulent. However, reasonable minds could differ on the scope of this statement because
“hustling” can mean a “side” income, in addition to any primary source. See Angela
Stringfellow, What Is a Side Hustle?
(accessed August 15, 2019) (“A side hustle is any type of employment undertaken in addition to
one’s full-time job.”). While Parler may have relied on this side source of income to fund his
clubbing activities, it does not mean that this was his primary, let alone sole, source of income.
Indeed, immediately before this exchange, Parler had talked about his lawn business. Thus, it is
a stretch to view this reference to “hustling” as a clear repudiation of his prior testimony,
particularly when we interpret Parler’s testimony in the light most favorable to him, as the
nonmovant, as we are required to in the present context.
The trial court also relied on the fact that Parler “failed to provide any supporting
evidence of his claim for lost wages.” However, Parler did not need documentary evidence, as
his proffered testimony established that he had a business and made approximately $300 per
week from that business prior to the accident. The fact that Parler never filed any tax documents
nor made any filing with the state regarding his business would not preclude a finding that he
actually engaged in this business. As with Parler’s claim for replacement services, a jury
ultimately may not credit Parler’s testimony, but in deciding a motion for summary disposition, a
court cannot engage in such credibility determinations. White, 275 Mich. App. at 625.
Therefore, Home-Owners failed to show that Parler’s claim for lost wages was fraudulent
as a matter of law, and the trial court erred when it granted Home-Owners’ motion for summary
disposition on this basis.7
7
Parler also argues that assuming any fraud did exist, the no-fault act does not allow for any
remedy other than what the statue provides. See MCL 500.3148(2) (providing that an insurer
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IV. DOCKET NO. 344653
Lessard argues on appeal that the trial court erred when it determined that there was no
question of fact that Lessard had engaged in fraudulent activity with respect to her claims for PIP
benefits. We disagree.
Initially, unlike Parler, Lessard was a party to the insurance contract and therefore was
bound to its terms. See MCL 500.3114(1); Shelton, 318 Mich. App. at 652. The policy contains
the following fraud provision:
We will not cover any person seeking coverage under this policy who has made
fraudulent statements or engaged in fraudulent conduct with respect to
procurement of this policy or to any occurrence for which coverage is sought.
[Emphasis omitted.]
This Court in Bahri, 308 Mich. App. at 424-425, addressed what a “fraudulent statement”
means:
“To void a policy because the insured has willfully misrepresented a material fact,
an insurer must show that (1) the misrepresentation was material, (2) that it was
false, (3) that the insured knew that it was false at the time it was made or that it
was made recklessly, without any knowledge of its truth, and (4) that the insured
made the material misrepresentation with the intention that the insurer would act
upon it.” [Citation omitted.]
Furthermore, the false statement must have been material, i.e., “reasonably relevant to the
insured’s investigation of a claim.” Id. at 425 (quotation marks and citation omitted).
Here, with minimal analysis, the trial court granted Home-Owners’ motion for summary
disposition because it determined that Lessard had made many fraudulent statements, including
statements related to other names she has gone by, Parler’s address, Lessard’s pre-existing
conditions, and the identity of medications she was taking at the time of the accident.
1. OTHER NAMES
In an answer to interrogatories, Lessard stated that she “has been known by the name
Holly Wood.” But at her deposition, Lessard initially denied that she had been known by any
other names. Later in her deposition, however, she admitted that “[t]here’s a possibility that I
could have had an alternative name.” She tried to explain that although she never personally
used the name “Holly Wood,” she conceded that others have called her that. Thus, reasonable
minds could differ as to whether Lessard’s failure to initially respond at the deposition
consistently with her answer to the interrogatories was a knowing misrepresentation made with
can recover attorney fees associated with a fraudulent claim). But because we have found that
the evidence did not show that fraud conclusively existed, we decline to reach that issue.
-9-
the intent to have Home-Owners act on that misinformation or whether she made the initial
denial because in her mind, she never went by that name. Indeed, with her already having
provided the answer of “Holly Wood” in her answers to interrogatories, it is difficult to imagine
that this latter statement at her deposition was meant to make Home-Owners act on this
statement. Thus, there is a question of fact regarding Lessard’s intent related to her deposition
statement, and the trial court erred in granting summary disposition on this basis.
2. PARLER’S ADDRESS
Regarding Parler’s address, there was no evidence that Lessard made any intentional
false statements. Indeed, her testimony was consistent with Parler’s: Parler moved out of
Lessard’s residence a short time after the accident. The trial court apparently relied on the fact
that Parler’s driver’s license listed his sister’s address. But that fact is insufficient to show that
Parler in fact could not have been living with Lessard at the time of the accident. While Home-
Owners opines that this is a blatant attempt to double collect PIP replacement-services benefits,
there is no other evidence to so emphatically refute Lessard’s and Parler’s testimony that no
reasonable person could believe them, see West, 469 Mich. at 183; in the absence of proof that
plaintiffs’ evidence was so inherently lacking in credibility that a jury could not accept it, courts
may not weigh credibility when ruling on a motion for summary disposition, White, 275 Mich
App at 625.
3. PAIN MEDICATION
The trial court apparently also adopted Home-Owners’ argument that Lessard had lied
about her prior use of pain medication. The court favorably recited Home-Owners’ allegation
that Lessard had testified that she had not taken any pain medication before going to the
emergency room after the accident, but at that hospital visit, she tested positive for “opiates and
benzodiazepine.” The trial court implicitly found that these test results showed that Lessard had
not stated the truth with regard to having taken pain medication before going to the hospital.
However, there is nothing in the record, by way of expert testimony or otherwise, that shows that
these test results stand for the proposition that Lessard had indeed taken “pain medication”
sometime before going to the hospital. Nothing in the record explains what the significance of
the presence of “benzodiazepine” is. It does not appear to be what would typically be considered
pain medication. See RxList, Benzodiazepines (accessed August 15, 2019) (“Benzodiazepines are a class of drugs primarily
used for treating anxiety . . . .”). On the other hand, it is fairly commonly understood that
“opiates” can include pain medication. However, the test results in this case clearly state that
with respect to the particular screening for opiates, “The opiate component of this drug screen is
intended to detect street heroin and its metabolite, morphine. This opiate component will not
detect pharmacologic concentrations of oxycodone and other pain management medications.”
Therefore, on its face, the screening cannot be used to show conclusively that Lessard took “pain
medication” prior to going to the hospital and subsequently lied about it.
4. PRE-EXISTING CONDITIONS
The trial court also adopted Home-Owners’ position that Lessard had made fraudulent
misrepresentations when she testified that she did not have any head, neck, or back problems
-10-
“before the accident” and when she stated that she had not had any knee problems in the five
years preceding the December 21, 2015 accident. The pertinent testimony was as follows:
Q. Okay. What parts of your body did you injure in this accident?
A. My neck, my head, my back, and my knee.
Q. Okay. And you didn’t have any problems, you didn’t have any neck
problems before the accident?
A. No.
Q. And you didn’t have any back problems before the accident?
A. No.
Q. And you didn’t have any knee problems before the accident?
A. I injured it a long time ago.
Q. A long time ago, more then five years ago?
A. Yes.
Q. You didn’t have any problems in the five years before the accident?
A. No.
Q. Okay. So in the five years before the accident, you had no neck
problems, no back problems, no knee problems?
A. Mm-hmm.
Q. Fair?
A. Yes.
Q. Did you have any head problems before the accident?
A. No.
Q. Did you ever treat for like headaches or issues like that before the
accident?
A. No.
In support of its contention that Lessard’s testimony was fraudulent, Home-Owners
submitted a medical report dated April 17, 2013, which showed that Lessard had presented to her
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doctor “for anxiety medication review and right knee pain.” With respect to the knee pain, the
report stated that Lessard had claimed that the pain “occurs constantly.” Thus, the record does
indicate that Lessard’s statement about not having any knee pain or problems during the five
years preceding the December 2015 accident was not true.
In support of its contention that Lessard had lied about having head problems prior to the
accident, Home-Owners submitted a hospital record from 2009, which showed that Lessard had
complained of headache, neck pain, and back pain. But whether Lessard complained of any such
pain in 2009 was irrelevant, as her deposition testimony was focused on the five-year period
leading up to the December 2015 accident. In other words, this 2009 hospital record does
nothing to support or refute her testimony that she had no pain in the five years preceding the
accident. Therefore, to the extent the trial court relied on this “proof,” it erred.
Home-Owners also relied on a medical record from February 2014, which shows that
Lessard had presented to the emergency room with the “chief complaint of increased anterior
chest pain.” While the purpose of Lessard’s visit to the hospital was related to chest pain, the
report stated that Lessard had “a significant past medical history for anxiety, GERD,[8] asthma,
migraine, [and] chronic back pain.” The report also noted that Lessard claimed that she has had
“increased lower back pain over [the] last week after shoveling the snow.” However, that same
report states, “[Lessard] denies recent . . . back pain, . . . headaches or visual changes, or any
other current symptoms.” Therefore, reasonable minds could conclude that while Lessard
previously had a history of headaches and back pain, that pain was not present in February 2014,
which was within the pertinent five-year period. Accordingly, to the extent the trial court relied
on the February 2014 report in granting Home-Owners’ motion for summary disposition, it
erred.
Lastly, the trial court appears to have relied on two visits Lessard had with medical
service providers in August 2015 and September 2015. At the August 2015 visit, Lessard
complained of “breast problems,” mood disorders, and insomnia/sleep problems. A review of
the record does not show that Lessard had complained of any headaches, back pain, or knee pain.
Thus, the relevance of this record is not readily apparent. On September 29, 2015, Lessard had
an MRI conducted of her brain. While the report mentions that “[t]he patient presents with
abnormal sleeping and eating patterns for the past year,” it also states that the reason for the
exam was “frequent headaches.” Because the MRI was conducted less than three months before
the accident, it is evidence that Lessard had indeed suffered from headaches within the five-year
period preceding the accident.
Thus, from the documents the trial court relied on, there was evidence that supported
Home-Owners’ contention that Lessard had made misrepresentations regarding having no pre-
existing conditions: the April 2013 medical record, which showed that Lessard had suffered
8
GERD is an acronym for gastroesophageal reflux disease. See WebMD, Gastroesophageal
Reflux Disease (GERD) (accessed August 15, 2019).
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from right knee pain, and the September 2015 MRI report, which indicated that Lessard had
suffered from “frequent headaches.”
Additionally, although not cited by the trial court, there was other evidence Home-
Owners submitted that shows that Lessard had suffered from knee pain not only before the
accident, but within the five years preceding the accident. First, a medical progress report,
issued a couple months after the accident, stated that “[t]he issue in [Lessard’s] right knee
diagnosed with patellar tendonitis back in 2007 was due to a car accident[;] however . . . the pain
has changed significantly in character since this most recent accident.” Importantly, this
February 2016 report describes her pain as changing, which shows that the pain did exist before
the accident, albeit in a different character. Next, Home-Owners submitted a medical record
from November 27, 2012, which shows Lessard complaining of knee pain that had been “worse”
since kneeling down three weeks prior to the appointment. Not only does this report show that
Lessard had knee pain in November 2012, thereby taking place within five years of the
December 2015 motor-vehicle accident, it shows that she also had knee pain prior to her
kneeling incident in early November 2012; this November 2012 report uses the word “worse” to
describe Lessard’s level of knee pain even before the kneeling incident, thereby indicating that
the pain had been ongoing. In other words, if there had been no knee pain prior to the kneeling
incident, the report would have classified this reported pain as “new” or something to that effect
instead of a “worse[ning]” of the pain. See Merriam-Webster’s Collegiate Dictionary (11th ed)
(defining “worse” as “of more inferior quality, value, or condition”).
Given this evidence, it is clear that Home-Owners presented sufficient evidence to prove
that Lessard had made material misrepresentations regarding the pain in her knee. The evidence
shows that Lessard’s knee caused her pain in the five years leading up to the December 2015
accident, and she misrepresented that fact when she testified there was no knee pain during that
period. Further, it is not plausible that Lessard simply had forgotten that she had knee pain prior
to the accident. The nature of the pain, including its lengthy duration, and the apparent impact
on Lessard’s life makes it clear that her false statements were made knowingly and with the
intent to deceive Home-Owners. As in Bahri, “[r]easonable minds could not differ in light of
this clear evidence that plaintiff made fraudulent representations for purposes of recovering PIP
benefits.” Bahri, 308 Mich. App. at 426. As such, the terms of the policy precluded Lessard from
recovering any PIP benefits, and the trial court properly granted Home-Owners’ motion for
summary disposition. The fact that the evidence may not have conclusively proven that
Lessard’s other representations were not fraudulent does not affect the outcome: the policy only
requires one instance of fraud to void the policy.
V. CONCLUSION
In Docket No. 338306, because a question of fact remains regarding whether Parler had
committed fraud with respect to his claims for replacement services and wage-loss benefits, we
reverse the trial court’s grant of summary disposition in favor of Home-Owners. Parler, as the
prevailing party, may tax costs pursuant to MCR 7.219.
In Docket No. 344653, because there is no question of fact that Lessard had made
fraudulent statements in connection with her claim for PIP benefits, the policy’s exclusionary
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language bars her recovery, and we affirm the trial court’s grant of summary disposition in favor
of Home-Owners. Home-Owners, as the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
/s/ James Robert Redford
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