Spectrum Health Hospitals v. Geico General Insurance Company ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
SPECTRUM HEALTH HOSPITALS, MARY UNPUBLISHED
FREE BED REHABILITATION HOSPITAL, and December 11, 2018
MARY FREE BED MEDICAL GROUP
Plaintiffs-Appellants,
v No. 341353
Kent Circuit Court
GEICO GENERAL INSURANCE COMPANY LC No. 17-001462-NF
and GEICO INDEMNITY COMPANY,
Defendants-Appellees.
Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting defendants’ motion for
summary disposition under MCR 2.116(C)(10). This case arises from a single-car accident in
the early-morning hours of April 10, 2016. Before the accident, the driver—Armando
Mendoza—was traveling at a high rate of speed and lost control, resulting in the crash. Mendoza
was driving a Pontiac Grand Prix titled to Elizabeth Serba but used almost exclusively by
Elizabeth’s daughter, Emily Serba. Mendoza suffered serious injuries in the accident, which
were treated by plaintiffs. Defendants insured Mendoza’s parents at the time of the accident.
Plaintiffs brought this suit against defendants to collect personal protection insurance (PIP)
benefits on Mendoza’s behalf. After the Michigan Supreme Court decided Covenant Med Ctr,
Inc v State Farm Mut Auto Ins Co, 500 Mich. 191; 895 NW2d 490 (2017), Mendoza assigned
plaintiffs his rights to pursue payment of his medical bills from defendants. The trial court found
that there was no question of material fact that, on the night of the accident, Mendoza knowingly
took the Grand Prix without authorization, so MCL 500.3113(a) barred plaintiffs’ recovery. This
appeal followed. We affirm.
Mendoza suffered a traumatic brain injury in the April 10, 2016 crash that affects his
memory. Mendoza cannot remember any of the events leading up to his taking the Grand Prix
and the ensuing crash. As a result, we can only discern the events that led to Mendoza’s taking
the Grand Prix by piecing together the testimony of persons that interacted with Mendoza in the
days and nights leading up to the accident.
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Lake Serba, Elizabeth’s son, testified that he and Mendoza were friends and that
Mendoza was staying with him in the days leading up to the accident. Lake explained that
Mendoza was in high school and on spring break, and Lake lived at home while taking college
classes. Lake lived with Joseph Serba (his father), Elizabeth (his mother), Emily (his sister),
Logan Serba (his brother), and Shane (his cousin). The Serba family kept four cars at their
house: Joseph drove a 2012 Impala, Elizabeth drove a Dodge Caravan, Emily drove a 2005
Grand Prix, and Lake drove a 2001 Impala. Both Joseph and Elizabeth testified that it was
customary for members of the family to ask one another for permission before using the other
family member’s car.
According to Lake, in the days leading up to the accident, he allowed Mendoza to use his
2001 Impala to drive their friend, Vivian Bjork, home from Lake’s house. Bjork lived “about
half a mile, maybe” from Lake. Lake testified that Mendoza asked Lake permission to use
Lake’s car to drive her home, and Lake gave Mendoza permission. Lake was aware that, at that
time, Mendoza did not have a driver’s license. Lake testified that Mendoza put gas in his car’s
tank after taking Bjork home.
Bjork confirmed that Mendoza drove her home from the Serbas’ residence the day before
the accident, but her testimony differed from Lake’s in many respects. According to Bjork, Lake
was asleep and Mendoza told her that he would take her home. Mendoza used one of the Serbas’
vehicles and grabbed the keys from the counter. Bjork believed the car was the Grand Prix.
Lake testified, however, that he was not aware of any time that Mendoza drove the Grand Prix
before the accident, and that he never gave Mendoza permission to use any car other than the
2001 Impala. But Lake admitted that he never had a conversation with Mendoza about
restricting Mendoza’s use of Lake’s family’s vehicles.
Lake also testified that the night before the accident—April 9, 2016—Lake and Mendoza
went to Kalamazoo using Lake’s car, and Lake allowed Mendoza to drive back. After they got
home, they went into the basement where Lake’s brother, Logan, sleeps. Lake went to bed while
Mendoza stayed up playing video games with Logan. Lake did not have any further discussions
with Mendoza. Logan recalled that, on the night before the accident, Mendoza and Lake
returned to the Serbas’ home late at night, Lake went to bed, and Mendoza stayed up playing
video games with Logan. According to Logan, later in the night, Mendoza asked him to drive
“to pick up some girls from a party,” but Logan said no. About 15 minutes later, Mendoza again
asked Logan to take him to pick up the girls, and Logan again said no. Logan then went to bed.
According to Logan, Mendoza never asked permission to use one of the family’s cars.
Joseph testified that he was asleep at home before the accident, but Mendoza never asked
him to use any of the family’s vehicles. According to Joseph, even if Mendoza had, the answer
would have been no. Similarly, Elizabeth testified that she was asleep at home before the
accident and that Mendoza never asked her to use the Grand Prix. Emily, like her parents,
testified that she was home before the accident, that Mendoza never asked her to use her car, and
that if he did, she would have said no.
It is undisputed that in the early morning hours of April 10, 2016, Mendoza took the
Grand Prix to pick up four girls and give them a ride home. Kaitlin Keeler was one of four girls
that Mendoza picked up that night. All four girls were together. Mendoza arrived in a car that
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Keeler did not recognize. Keeler testified that she and her friends asked Mendoza “like how he
got there, like whose vehicle it was, and he told [them] that it was his friend Lake’s and that
Lake said he could take it but he didn’t want to come with because Lake was already asleep.” At
3:42 a.m., Mendoza was driving the Grand Prix at a high rate of speed and lost control. In the
ensuing crash, all of the occupants of the vehicle suffered injuries.
Various people testified that, in the months after the accident, Mendoza told them that
Logan gave him permission to use the Grand Prix. Megan Parker, Mendoza’s girlfriend at the
time of the accident, testified that Mendoza told her “a million times that he got permission
from . . . Logan to drive the car.” Rabi Eid, Mendoza’s father, testified that, after the accident,
Mendoza told him that he had permission to use the Grand Prix on the night of the accident.
Rabi also testified that Elizabeth “confirmed” this to Rabi at the hospital, and told him that the
permission came from Logan.1 Maricela Eid, Mendoza’s mother, testified that it was her
understanding that Logan gave Mendoza permission to use the Grand Prix on the night of the
accident.
After discovery, defendants moved for summary disposition. As relevant to this appeal,
defendants argued that plaintiffs could not collect PIP benefits because Mendoza was barred
from doing so under MCL 500.3113(a). That statute bars recovery of PIP benefits to a person
that “willing operates . . . a motor vehicle . . . that was taken unlawfully” so long as the person
“knew or should have known that the motor vehicle . . . was taken unlawfully.” MCL
500.3113(a). According to defendants, everyone with personal knowledge of whether Mendoza
had permission to take the Grand Prix testified that the taking was unauthorized, with the
exception of Mendoza who could not remember. Defendants concluded that, based on this
evidence, there was no question of fact that the taking was unauthorized—and therefore
unlawful—so plaintiffs’ claim was barred by MCL 500.3113(a).
In response, plaintiffs argued that there was a question of fact whether Mendoza had
permission to take the Grand Prix on the night of the accident. First, plaintiffs contended that
Keeler’s testimony that Mendoza said he had permission to take the Grand Prix created a
question of fact. Next, plaintiffs asserted that there was a question whether Mendoza had
ongoing permission to take the Serbas’ vehicles because (1) Mendoza used the Serbas’ vehicles
on several occasions in the days leading up to the accident and (2) Lake never had a conversation
with Mendoza about restricting his use of those vehicles. Plaintiffs further argued that
Mendoza’s filling up Lake’s gas tank after dropping Bjork at home created a question of fact
about Mendoza’s ongoing permissive use because it suggested that he “had taken the Serbas’
vehicles frequently.”
Plaintiff also contended that, even if Mendoza did not have permission, defendants failed
to establish that he knew or should have known that he lacked permission as required by MCL
500.3113(a). Plaintiffs asserted that Keeler’s testimony “demonstrates that [Mendoza] believed
he had permission to take the vehicle.” Plaintiffs also argued that Mendoza’s use of the Serbas’
1
Also according to Rabi, at some point in the months before the accident, Rabi saw Mendoza
driving Lake’s Impala.
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vehicles in the days before the accident made it reasonable for him to believe that he had
permission to use the Grand Prix on the night of the accident.
In anticipation that defendants would argue that Keeler’s testimony was inadmissible
hearsay, plaintiffs gave three counterarguments. First, they argued that Keeler’s testimony was
not hearsay—meaning that it was not submitted to prove the truth of the matter asserted—but
rather was submitted to show “that [Mendoza] believed he had permission to take the vehicle.”
Second, plaintiffs asserted that Keeler’s testimony fell under MRE 803(3) because it went to
Mendoza’s state of mind. Lastly, plaintiffs argued that Keeler’s statement would fall under the
catch-all hearsay exceptions in MRE 803(24) or MRE 804(b)(7).
In a supplemental brief, plaintiffs contended that the testimonies of Parker, Rabi, and
Maricela created an issue as to Logan’s credibility and thus precluded summary disposition.
According to plaintiffs, this testimony was not hearsay because it was offered for impeachment
purposes. Plaintiffs also argued that Parker’s, Rabi’s, and Maricela’s testimonies were
admissible for the same reasons that Keeler’s testimony was admissible.
Following a hearing, the trial court, in a written opinion and order, granted defendants’
motion. The trial court concluded that Keeler’s testimony about what Mendoza said before the
accident was “blatant hearsay” that was “not an indication of any relevant state of mind,” so
MRE 803(3) could not apply. The trial court similarly concluded that Keeler’s statement could
not fall under the catch-all exceptions to hearsay because Mendoza’s statement to Keeler “was
self-serving” and thus lacked the “circumstantial guarantees of trustworthiness.” The trial court
also rejected plaintiffs’ argument that Mendoza had “open permission” to use the Serba family’s
vehicles because there was only evidence that he had used them a total of three times. The trial
court found that “[t]his does not suggest any kind of continuing or open permission” to use any
of the family’s vehicles. The trial court concluded that “the only reasonable conclusion based on
the evidence is that the Grand Prix was knowingly taken that night by [Mendoza] without
authority,” so there was no genuine issue of material fact that Mendoza violated MCL
500.3113(a) and was barred from recovery.
On appeal, plaintiffs argue that, for various reasons, the trial court erred by concluding
that there was no genuine question of material fact and that MCL 500.3113(a) barred their
recovery. We disagree. Appellate courts review de novo a trial court’s grant of summary
disposition. Innovation Ventures v Liquid Mfg, 499 Mich. 491, 506; 885 NW2d 861 (2016). The
trial court granted defendants’ summary disposition under MCR 2.116(C)(10). In Maiden v
Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999), our Supreme Court explained the standard
for a motion under MCR 2.116(C)(10) as follows:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
In evaluating a motion for summary disposition brought under this subsection, a
trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
to the party opposing the motion. Where the proffered evidence fails to establish
a genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law.
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A genuine issue of material fact exists when, after viewing the evidence in a light most favorable
to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt,
LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008). Only substantively admissible evidence can
create a genuine issue of fact under MCR 2.116(C)(10). See Maiden, 461 Mich. at 123.
Plaintiffs are attempting to collect PIP benefits on Mendoza’s behalf from defendants.
Mendoza assigned his rights to collect PIP benefits to plaintiffs. “An assignee stands in the
position of the assignor, possessing the same rights and being subject to the same defenses.”
Burkhardt v Bailey, 260 Mich. App. 636, 653; 680 NW2d 453 (2004). It follows that if Mendoza
is barred from recovery, then plaintiffs are also barred.
At issue here is MCL 500.3113(a), which bars recovery for PIP benefits if, at the time of
the accident, “[t]he person was willingly operating or willingly using a motor vehicle or
motorcycle that was taken unlawfully, and the person knew or should have known that the motor
vehicle or motorcycle was taken unlawfully.” In Spectrum Health Hosps v Farm Bureau Mut Ins
Co of Mich, 492 Mich. 503, 516-517; 821 NW2d 117 (2012), our Supreme Court interpreted
“taken unlawfully”2 in the context of MCL 500.3113(a):
In determining the Legislature’s intended meaning of the phrase “taken
unlawfully,” we must accord the phrase its plain and ordinary meaning, and we
may consult dictionary definitions because the no-fault act does not define the
phrase. The word “unlawful” commonly means “not lawful; contrary to law;
illegal,” and the word “take” is commonly understood as “to get into one’s hands
or possession by voluntary action.” When the words are considered together, the
plain meaning of the phrase “taken unlawfully” readily embraces a situation in
which an individual gains possession of a vehicle contrary to Michigan law.
[Citations omitted.]
The Spectrum Court went on to explain two examples of a taking “contrary to Michigan law”:
The Michigan Penal Code contains several statutes that prohibit “takings,”
including two that prohibit “joyriding,” MCL 750.413 and MCL 750.414. MCL
750.413 states that “[a]ny person who shall, wilfully and without authority, take
possession of and drive or take away . . . any motor vehicle, belonging to another,
shall be guilty of a felony . . . .” Similarly, MCL 750.414 provides in pertinent
part that “[a]ny person who takes or uses without authority any motor vehicle
without intent to steal the same, or who is a party to such unauthorized taking or
using, is guilty of a misdemeanor . . . .” Thus, both joyriding statutes make it
2
While the operative language in MCL 500.3113(a)—“taken unlawfully”—has not changed
since Spectrum, other parts of that statute have changed. When Spectrum was decided, MCL
500.3113(a) stated that a person was not entitled to PIP benefits if he or she “was using a motor
vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably
believed that he or she was entitled to take and use the vehicle.” MCL 500.3113(a), later
amended by 2014 PA 489 (2015).
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unlawful to take any motor vehicle without authority, effectively defining an
unlawful taking of a vehicle as that which is unauthorized. [Spectrum, 492 Mich.
at 517-518 (citations omitted).]
Here, like the Court in Spectrum, we must determine whether plaintiff took the car
unlawfully, meaning “without authority.” Id. We agree with the trial court that here is no
question of fact that Mendoza’s taking of the Grand Prix was unauthorized. Every member of
the Serba household that interacted with Mendoza on the night of the accident or may have had
authority to allow Mendoza to take the Grand Prix testified that they did not give Mendoza
permission to take the Grand Prix on the night of the accident.3 Thus, there is no question that
Mendoza did not have express permission to take the Grand Prix on the night of the accident.
Plaintiffs contend that Mendoza’s use of the Serbas’ vehicles in the days and months
leading up to the night of the accident gave Mendoza ongoing or implied permission to take the
Grand Prix on the night of the accident. We agree with defendants that this argument is
conjecture because it is entirely speculative. Conjecture is an explanation consistent with known
facts, but not deducible from them as a reasonable inference. Libralter Plastics, Inc v Chubb
Group of Ins Cos, 199 Mich. App. 482, 486; 502 NW2d 742 (1993). Plaintiffs’ argument is
arguably consistent with the known facts, but there is simply no way to reasonably infer that
Mendoza had “ongoing permission” to use the Grand Prix on the night of the accident. For
instance, there is no evidence that Mendoza routinely took and used the Grand Prix and that the
Serbas knew but did not object to it. And other evidence actually cuts against plaintiffs’
argument. All of the Serba family testified that Emily was very protective of her car and would
generally not let others drive it. They also testified that they would ask each other permission
before using another family member’s car. Based on this evidence, it is unreasonable to infer
that Mendoza—a guest at the Serba residence—had ongoing permission to use any car he
wanted, let alone the Grand Prix that Emily would not let others drive. Plaintiffs’ “ongoing
permission” argument is therefore conjecture, and conjecture cannot create a genuine issue of
material fact. See id.
Even addressing plaintiffs’ ongoing-permission argument, it is unconvincing. In the light
most favorable to plaintiffs, Mendoza used a Serba vehicle on three occasions before the
accident: once a few months before the accident with Lake, once to drive Bjork home, and once
the night before the accident when he and Lake were returning from Kalamazoo. We conclude
that Mendoza’s use of the Serbas’ vehicles was so limited that no reasonable juror could
conclude that Mendoza had ongoing permission to use them. More importantly, no reasonable
juror could conclude that Mendoza had implied or ongoing permission to use the Grand Prix
because nothing supports that Mendoza ever had permission to use that car; only Bjork testified
that Mendoza used the Grand Prix, and she testified that it was on one occasion and he did so
without asking. Because nothing in the record supports that Mendoza had ongoing permission to
3
While Keeler, Parker, and Rabi testified that Mendoza told each of them that he was given
permission, their testimonies were hearsay—as will be explained in detail later—and therefore
substantively inadmissible. See MRE 801(c); Maiden, 461 Mich. at 123.
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use the Grand Prix, reasonable minds cannot differ that his taking of the Grand Prix on the night
of the accident was unauthorized.4
While this would seem to be the end of the inquiry into whether the Grand Prix was
“taken unlawfully” under MCL 500.3113(a), it does not. While the Spectrum Court stated that
the joyriding statutes, MCL 750.413 and MCL 750.414, “effectively defin[e] an unlawful taking
of a vehicle as that which is unauthorized,” Spectrum, 492 Mich. at 517-518, our Supreme Court
later clarified that those statutes’ mens rea elements must also be satisfied to bar recovery under
MCL 500.3113(a), see Rambin v Allstate Ins Co, 495 Mich. 316, 331-334; 852 NW2d 34 (2014).
In other words, defendants must not only prove that Mendoza took the Grand Prix without
permission, but that he took the Grand Prix in violation of a statute. See id. at 333 (explaining
that the “plaintiff’s argument that he did not unlawfully take the motorcycle under MCL
500.3113 is subject to the criminal statute that prohibits an unlawful taking”).
MCL 750.413 states:
Any person who shall, wilfully and without authority, take possession of and
drive or take away, and any person who shall assist in or be a party to such taking
possession, driving or taking away of any motor vehicle, belonging to another,
shall be guilty of a felony, punishable by imprisonment in the state prison for not
more than 5 years.
And MCL 750.414 states, in relevant part:
Any person who takes or uses without authority any motor vehicle without intent
to steal the same, or who is a party to such unauthorized taking or using, is guilty
of a misdemeanor punishable by imprisonment for not more than 2 years or a fine
of not more than $1,500.00.
To have violated MCL 750.413, Mendoza must have taken possession of and driven the Grand
Prix “wilfully.” As for MCL 750.414, our Supreme Court in Rambin, 495 Mich. at 332, held that
it “requires a showing of knowingly taking without authority . . . .” So to have violated MCL
4
Plaintiffs point out that Lake testified that Mendoza filled his car tank with gas after he dropped
off Bjork, and contends that this is evidence that Mendoza “drove the Serbas’ vehicles
frequently.” This contention is clearly speculation, see Libralter Plastics, Inc, 199 Mich. App. at
486, as it was just as likely that Mendoza filled up Lake’s gas tank because he was appreciative
of Lake’s allowing Mendoza to stay with him.
Plaintiffs also point out that Lake never had a conversation with Mendoza about
restricting Mendoza’s use of the vehicles, and contends that this supports that Mendoza had
ongoing permission to use the Serbas’ vehicles. But that Lake never told Mendoza that Mendoza
could not use Lake’s family’s vehicles without permission is of little consequence. People
cannot go around taking other people’s property without some type of permission. Lake did not
need to spell this out for Mendoza.
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750.414, Mendoza must have taken the Grand Prix knowing that he was doing so without
authority.
Under the facts of this case, no reasonable juror could conclude that Mendoza did not
know that he took the Grand Prix without authority, so there is no question that he knowingly
took the car without authority. As explained, no one expressly gave Mendoza authority to take
the Grand Prix on the night of the accident. And Mendoza’s use of the Serba family’s vehicles
was not so pervasive for him to reasonably believe that he had ongoing permission to take and
use them. Again, in the light most favorable to plaintiffs, Mendoza used a Serba vehicle on three
occasions before the accident. In two of those instances, Lake was in the car with Mendoza and
Mendoza was driving Lake’s car. In the other instance, either Mendoza drove Bjork home in the
Grand Prix (as Bjork testified) but no one gave him permission, or Mendoza drove Bjork home
in the 2001 Impala with Lake’s permission (as Lake testified). Either way, it would not support
that Mendoza had implied permission to take Grand Prix on the night of the accident. Accepting
Bjork’s testimony, Mendoza took the Grand Prix without permission when he drove her home,
which would not support that Mendoza reasonably believed that he had permission to take it
again. Accepting Lake’s testimony, Mendoza had permission to take Lake’s car to drive Bjork
home, which simply cannot support that Mendoza believed he had ongoing permission to take
the Grand Prix. In short, no reasonable juror could conclude that, because Mendoza used a
Serba vehicle three times before the accident, he believed that he had permission to take the
Grand Prix at three o’clock in the morning on the night of the accident, and so he knew that his
taking of the Grand Prix was unauthorized.5 And because Mendoza knowingly took the Grand
Prix without authorization, he took it in violation of MCL 750.414, which in turn satisfies the
“taken unlawfully” requirement in MCL 500.3113(a).
For the reasons explained in the previous paragraph, we conclude that reasonable minds
could not disagree that Mendoza “knew or should have known” that the Grand Prix was taken
unlawfully—since he was the one that knowingly took it without authorization—and so the
requirement in MCL 500.3113(a) that “the person knew or should have known that the motor
vehicle . . . was taken unlawfully” is satisfied.
On appeal, plaintiffs contend that Keeler’s testimony creates a question of fact to both
elements of MCL 500.3113(a). The trial court ruled that Keeler’s testimony was inadmissible
hearsay, and therefore could not create a question of fact. See Maiden, 461 Mich. at 123. We
5
Plaintiffs contend that the trial court “turn[ed] the burden of proof on its head” because
defendants had the burden of proving that Mendoza knew he was taking the Grand Prix without
permission, and defendants necessarily could not carry this burden because Mendoza could not
remember the events before the accident. But if this case went before a factfinder, he or she
would be faced with the same evidence as this Court is now. Namely, even though Mendoza
cannot remember the details of the night of the accident, could Mendoza have believed that he
had permission to use the Grand Prix based on the evidence that the parties can produce? As
explained, based on the evidence presented, reasonable minds could not disagree that Mendoza
knew he did not have permission to take the Grand Prix.
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agree with the trial court that Keeler’s testimony was inadmissible hearsay. And although the
trial court did not explicitly rule that Parker’s, Rabi’s, or Maricela’s testimonies were
inadmissible hearsay, we conclude that they were.
Keeler’s relevant testimony—that Mendoza told her that Lake gave him permission to
take the Grand Prix—is clearly hearsay. Under MRE 801(c), “ ‘Hearsay’ is a statement, other
than the one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Keeler’s testimony is thus inadmissible to establish that
Lake told Mendoza that he could take the Grand Prix on the night of the accident.
Plaintiffs contend that Keeler’s testimony is not hearsay if they use it to prove that
Mendoza believed he had permission to take the Grand Prix on the night of the accident. But
Keeler’s statement does not tend to prove that Mendoza believed that he had permission to take
the Grand Prix unless the substantive fact of Mendoza’s statement is true. If Lake gave Mendoza
permission—as Keeler testified that Mendoza said—then Mendoza would have reason to believe
that he had permission to take the Grand Prix. Conversely, if Lake did not give Mendoza
permission, then, regardless of what Mendoza said, he would have no reason to believe that he
had permission to take the Grand Prix.6 In short, the underlying substantive fact of Mendoza’s
statement to Keeler must be true for that statement to be probative of whether Mendoza believed
he had permission to take the Grand Prix. And because Mendoza’s statement to Keeler is
inadmissible to prove the substantive fact of that statement, see MRE 801(c), Keeler’s testimony
of what Mendoza told her cannot be probative of what Mendoza believed. As a result, the only
way that Mendoza’s statement to Keeler would be admissible is if it fell under one of the
exceptions to hearsay. See MRE 802.
Plaintiffs argue that Mendoza’s statement to Keeler falls under the state-of-mind
exception to hearsay in MRE 803(3), which states:
6
Plaintiffs propose a third route: Mendoza believed that the statement was true, so it is probative
of what he believed. Plaintiffs’ argument can be condensed to this: because Mendoza believed
what he said, plaintiffs can use Mendoza’s stated belief to prove Mendoza’s belief. This is
clearly hearsay. See MRE 801(c).
Relatedly, MRE 803(3) appears to categorize a declarant’s statement of belief to prove
the declarant’s belief as inadmissible hearsay. See MRE 803(3) (stating that it does not apply to
“a statement of . . . belief to prove the fact . . . believed”). The reason for this is explained in
People v Moorer, 262 Mich. App. 64, 73-74; 683 NW2d 736 (2004):
“The exclusion of ‘statements of memory or belief to prove the fact remembered
or believed’ is necessary to avoid the virtual destruction of the hearsay rule which
would otherwise result from allowing state of mind, provable by a hearsay
statement, to serve as the basis for an inference of the happening of the event
which produced the state of mind.” [Quoting FRE 803(3), Advisory Committee’s
Note, 56 FRD 183, 305.]
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A statement of the declarant’s then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant’s will.
Keeler testified that she and her friends asked Mendoza “like how he got there, like whose
vehicle it was, and he told [them] that it was his friend Lake’s and that Lake said he could take it
but he didn’t want to come with because Lake was already asleep.” In People v Hackney, 183
Mich. App. 516, 527 n 2; 455 NW2d 358 (1990), this Court explained that “a statement explaining
a past sequence of events (from the standpoint of the declarant at the time of the statement)” are
excluded under MRE 803(3) as a statement of “memory or belief to prove the fact remembered
or believed . . . .” Because Mendoza’s statement to Keeler was about past events and did not
relate to Mendoza’s “then existing state of mind, emotion, sensation, or physical condition,” it
does not fall under MRE 803(3). See People v Moorer, 262 Mich. App. 64, 73; 683 NW2d 736
(2004) (“These statements relate to past events and are specifically excluded under MRE 803(3)
as statements of ‘memory or belief to prove the fact remembered or believed . . . .’ They
therefore do not fall within the parameters of MRE 803(3).”).
Plaintiffs also argue that Mendoza’s statement to Keeler is admissible under the catch-all
exceptions to hearsay, MRE 803(24) and MRE 804(b)(7). Plaintiffs further argue that, for the
same reasons that Mendoza’s statement to Keeler is admissible under these exceptions, the
hearsay statements in the testimonies of Parker, Rabi, and Maricela are also admissible under
these exceptions.
Under MRE 803(24):7
A statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact, (B) the
statement is more probative on the point for which it is offered than any other
evidence that the proponent can procure through reasonable efforts, and (C) the
general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of the statement makes known
to the adverse party, sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent's
intention to offer the statement and the particulars of it, including the name and
address of the declarant.
As summed up in People v Katt, 468 Mich. 272, 279; 662 NW2d 12 (2003):
7
The language of MRE 803(24) is identical to the language of MRE 804(b)(7), and because
plaintiffs do not offer differing analyses for the two rules, we do not differentiate between them.
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[E]vidence offered under MRE 803(24) must satisfy four elements to be
admissible: (1) it must have circumstantial guarantees of trustworthiness equal to
the categorical exceptions, (2) it must tend to establish a material fact, (3) it must
be the most probative evidence on that fact that the offering party could produce
through reasonable efforts, and (4) its admission must serve the interests of
justice. Also, the offering party must give advance notice of intent to introduce
the evidence.
The requirements of MRE 803(24) “are stringent and will rarely be met.” People v Douglas, 496
Mich. 557, 576; 852 NW2d 587 (2014) (quotation marks and citation omitted).
There is no argument regarding the second element: whether Mendoza had or believed he
had permission to use the Grand Prix is, at this point, the material fact in this case. But plaintiffs
fail to satisfy the third element. Namely, the witnesses’ hearsay statements that plaintiffs seek to
admit are not the most probative evidence of whether Mendoza had permission to use the Grand
Prix that plaintiffs can produce. The third element “essentially creates a ‘best evidence’
requirement,” which “is a high bar and will effectively limit use of the residual exception to
exceptional circumstances.” Katt, 468 Mich. at 293.
As stated, the fact that plaintiffs seek to establish with the hearsay statements is whether
Mendoza had or believed he had permission to use the Grand Prix. The members of the Serba
family all had first-hand knowledge of whether one of them gave Mendoza permission to use the
Grand Prix. Each member of the Serba family testified that he or she did not give Mendoza
permission, which is probative of the fact whether Mendoza had or believed he had permission to
use the Grand Prix. As explained in Katt, “nonhearsay evidence on a material fact will nearly
always have more probative value than hearsay statements, because nonhearsay derives from
firsthand knowledge. Thus, the residual exception normally will not be available if there is
nonhearsay evidence on point.” Id. at 293. We conclude that the hearsay statements that
plaintiffs seek to admit are not more probative than the Serba family members’ nonhearsay
statements, and therefore the hearsay statements proffered by plaintiffs do not satisfy the third
element of MRE 803(24).
Finally, in cursory fashion, plaintiffs argue that “if no exception applies, [Keeler],
[Parker], Rabi, and Maricela’s testimony is admissible to impeach the credibility of the Serbas’
post-accident denial that [Mendoza] had permission to drive the Grand Prix.” In support of their
argument, plaintiffs only cite a case for the proposition that substantively inadmissible evidence
may still be admissible as impeachment evidence. See Merrow v Bofferding, 458 Mich. 617, 631;
581 NW2d 696 (1998). Plaintiffs do not provide any further explanation for why this creates a
genuine issue of fact thereby avoiding summary disposition. By failing to do so, plaintiff
abandoned this argument. See Blackburne & Brown Mortg Co v Ziomek, 264 Mich. App. 615,
619; 692 NW2d 388 (2004) (“Insufficiently briefed issues are deemed abandoned on appeal.”)
(Quotation marks and citation omitted.)
Ultimately, because Keeler’s, Parker’s, Rabi’s, and Maricella’s hearsay testimony is not
substantively admissible, plaintiffs cannot use that evidence to create a question of fact. And
because there is no genuine issue of material fact and MCL 500.3113(a) is satisfied, Mendoza—
and therefore plaintiffs, Burkhardt, 260 Mich. App. at 653—is barred from recovery, and
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defendants were entitled to summary disposition as a matter of law. The trial court properly
granted the defendants’ motion for summary disposition under MCR 2.116(C)(10) and dismissed
plaintiffs’ complaint.
Affirmed.
/s/ Michael J. Kelly
/s/ Patrick M. Meter
/s/ Colleen A. O’Brien
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