Central Home Health Care Services v. Liberty Mutual Insurance Comp ( 2022 )

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
CENTRAL HOME HEALTH CARE SERVICES, UNPUBLISHED
December 22, 2022
Plaintiff-Appellant,
v No. 359826
Washtenaw Circuit Court
LIBERTY MUTUAL INSURANCE COMPANY, LC No. 18-001240-NF
Defendant-Appellee.
Before: SHAPIRO, P.J., and BORRELLO and YATES, JJ.
PER CURIAM.
In this action involving Michigan’s no-fault act, MCL 500.3101 et seq., plaintiff appeals
as of right the trial court’s order granting defendant’s motion for summary disposition under MCR
2.116(C)(10) and dismissing plaintiff’s action with prejudice. For the reasons set forth in this
opinion, we reverse.
I. BACKGROUND
On November 30, 2018, plaintiff initiated this action based on an assignment of rights from
Sean Smith with respect to health care services provided to Smith by plaintiff. In its complaint,
plaintiff alleged that Smith “sustained accidental bodily injuries within the meaning of the statutory
provisions of MCL 500.3105” and that plaintiff provided “reasonably necessary products, services
and/or accommodations” to Smith resulting in an outstanding balance of $116,322.42. Plaintiff
further alleged that “Defendant is first in order of priority to pay for the injured party’s claim for
no fault personal protection insurance benefits” under the no-fault act and that “Defendant has
become obligated to pay for certain expenses incurred for reasonably necessary products and
services rendered for the injured party’s care, recovery or rehabilitation as a result of the injured
party’s sustained accidental bodily injury arising out of the ownership, operation, maintenance or
use of a motor vehicle as a motor vehicle.” Finally, plaintiff alleged that “Defendant’s failure to
pay Plaintiff’s personal protection insurance benefits constitutes a material breach of contractual
and/or statutory duties pursuant to the contract where the injured party is qualified as an ‘insured,’
or otherwise entitled to benefits and/or pursuant to MCL 500.3101, et seq.”
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During the course of the litigation, defendant filed a motion to strike Smith as a witness or
compel Smith to appear for a deposition prior to trial. In the motion, defendant alleged that Smith
had twice been noticed for deposition but that defendant had been unable to serve Smith.
Defendant stated further that Smith’s “deposition is required in order to determine the injuries
claimed to have been sustained in the motor vehicle accident, the treatment allegedly required
therefrom, the Plaintiff’s physical condition, and the need for future various benefits under the
Michigan No-Fault Law.” Defendant asserted that it was “at a severe disadvantage and greatly
prejudiced in this suit” without Smith’s cooperation in being deposed.
The trial court entered an order, pursuant to the parties’ stipulation, ordering:
that Plaintiff Counsel provide Defense Counsel all known contact information for
claimant Sean Smith by May 7[] 2020, that Defendant will attempt service on
claimant Sean Smith for deposition, that if Claimant Sean Smith does not appear
for a deposition by June 4, 2020, Sean Smith shall be stricken as a witness and not
be permitted to testify at trial.1
Defendant subsequently moved to strike Smith as a witness after Smith was served with
notice of his deposition and failed to appear. The trial court struck Smith as a witness.
Defendant moved for summary disposition under MCR 2.116(C)(10). As relevant to the
issue presented on appeal, defendant argued that plaintiff could not establish that Smith was in a
motor vehicle accident because the trial court struck Smith as a witness, the police report was
inadmissible hearsay, and the doctors and police officers did not witness the accident and therefore
could not testify that Smith was in an accident. Defendant further argued that the services at issue
in this case were “at home physical therapy services following a surgery performed on Sean Smith
on 5-8-2018,” that Smith had been in a previous automobile accident, and that Smith’s treating
doctor— Dr. Louis Radden—had discussed the same surgical procedure with Smith before the
motor vehicle accident at issue in this case. Thus, defendant argued that “[w]ithout Sean Smiths
[sic] testimony Plaintiff will be unable to prove the treatment is related to this accident.” Despite
these arguments, defendant acknowledged in its supporting brief that there was a motor vehicle
accident on October 24, 2017, and that it was the relevant no-fault insurer at the time of the
accident.
Defendant attached the deposition of Radden, who testified that he first treated Smith on
January 8, 2015. According to Radden, Smith sought treatment on that date for complaints of back
pain radiating into his lower extremities, neck pain radiating into the left upper extremity, and left
shoulder pain that began after he was in a motor vehicle accident on December 10, 2014. Smith
underwent shoulder surgery on April 12, 2016, but Radden did not perform that surgery. Radden
also indicated that Smith was involved in a second motor vehicle accident on October 24, 2017.
Before the second accident, Radden last treated Smith on September 20, 2017. On September 20,
2017, there was a treatment plan to perform a type of neck surgery called an anterior cervical
discectomy and fusion surgery on Smith’s C5-C6 vertebrae. This neck surgery was performed on
neck surgery May 8, 2018. Radden testified that all of Smith’s treatment involving the spine
1
This deadline was later extended by stipulation to June 25, 2020.
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specialist between the first motor vehicle accident and the second motor vehicle accident was
related to the first accident. Radden referred Smith to plaintiff at some point, and Radden
prescribed physical therapy and nursing services. Smith first treated with plaintiff the day after
the neck surgery.
Plaintiff opposed the motion. Plaintiff claimed to have provided post-surgical care to
Smith from May 9, 2018 to September 13, 2018, following Smith’s cervical spine surgery and
pursuant to a prescription and referral from Radden. Plaintiff also claimed to have provided post-
surgical care to Smith from January 15, 2019 to February 13, 2019, following a left knee surgery
and pursuant to a prescription and referral from Dr. Michael Bagley. Plaintiff argued in relevant
part that Smith’s medical records show that he was involved in a motor vehicle accident on October
24, 2017, and that his “treating physicians . . . directly attribute the necessary surgeries and post-
surgical care to the October 2017 motor vehicle accident.” Plaintiff attached the medical records
on which it relied.
The trial court granted defendant’s motion for summary disposition, explaining its
reasoning as follows:
Thank you. Counsel, I, I don’t usually grant MSDs. I usually do believe
that it’s in the province of the finder of fact, but I agree with you in this case. When
you don’t have Sean Smith able to testify and stricken, I don’t think that they can
overcome that. They need that patient and he’s not participating and I don’t, I
disagree with you, counsel, I don’t think you can just bring in medical records and
satisfy. You know, I’m well aware of the exception, medical records exception for
statements made for the purpose of diagnosis and treatment, but not to prove the
underlying case of an auto accident, injured, arising out of the use of a, of a motor
accident. I think without Sean Smith, you, you aren’t able to proceed and I’m
granting it on that basis.
The trial court denied plaintiff’s motion for reconsideration. This appeal followed.
II. STANDARD OF REVIEW
“This Court reviews the grant or denial of summary disposition de novo to determine if the
moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118;
597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(10) when “[e]xcept
as to the amount of damages, there is no genuine issue as to any material fact, and the moving
party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). In
evaluating a motion under MCR 2.116(C)(10), “a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties in the light most favorable to
the party opposing the motion.” Maiden, 461 Mich at 120 (citation omitted). “A genuine issue of
material fact exists when the record leaves open an issue upon which reasonable minds might
differ.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019)
(quotation marks and citation omitted).
III. ANALYSIS
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“Under personal protection insurance an insurer is liable to pay benefits for accidental
bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a
motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1).
Here, the trial court ruled that summary disposition was warranted because plaintiff could
not succeed on its claim as a matter of law because Smith was not able to testify. The trial court
did not consider what the other record evidence showed when considered in the light most
favorable to plaintiff as the nonmoving party. Maiden, 461 Mich at 120. Instead, the trial court
only considered the record evidence to the extent that the trial court did not believe that the relative
strength of that evidence was sufficient to survive summary disposition. “[I]t is well settled that
the circuit court may not weigh the evidence or make determinations of credibility when deciding
a motion for summary disposition.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App
466, 480; 776 NW2d 398 (2009). Defendant’s appellate arguments are similar to those of the trial
court as they apply to the weight and relative strength of the record evidence.
Contrary to the proper legal standard for considering a motion for summary disposition
under MCR 2.116(C)(10), the trial court in this case neglected to consider all of the submitted
documentary evidence in the light most favorable to plaintiff to determine whether a genuine
question of material fact existed. Instead, the trial court focused solely on the lack of available
testimony from Smith and concluded that as a matter of law, plaintiff could not succeed in
establishing its claim. The trial court did not consider whether other evidence in the record
demonstrated a question of fact whether Smith suffered injuries as a result of a motor vehicle
accident. See MCL 500.3105(1). When considering a motion under MCR 2.116(C)(10), “a trial
court must consider all evidence submitted by the parties in the light most favorable to the party
opposing the motion.” El-Khalil, 504 Mich at 160 (emphasis added).
Accordingly, the trial court erred in granting summary disposition for its stated reason.
This matter is remanded for the trial court to decide defendant’s motion for summary disposition
under the proper legal standard.
This Court need not address the parties’ additional arguments relating to the coordination
of benefits with Smith’s health insurance provider because the trial court did not address these
arguments in its ruling. “Appellate review is limited to issues actually decided by the trial court.”
Allen v Keating, 205 Mich App 560, 564; 517 NW2d 830 (1994).
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff having prevailed is entitled to costs. MCR 7.219(A).
/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Christopher P. Yates
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