Jessie Lee Cobb v. William Parks

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
JESSIE LEE COBB, UNPUBLISHED
July 30, 2019
Plaintiff-Appellant,
v No. 342774
Wayne Circuit Court
WILLIAM PARKS and PROGRESSIVE LC No. 17-001388-NI
MICHIGAN INSURANCE COMPANY,
Defendants-Appellees.
Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.
PER CURIAM.
Plaintiff, Jessie Lee Cobb, appeals as of right the trial court’s orders granting defendants,
William Parks and Progressive Michigan Insurance Company (Progressive) summary disposition
of plaintiff’s negligence claim and claim for no-fault personal protection insurance (PIP) benefits
based on a motor vehicle accident. We affirm.
I. BACKGROUND
On August 18, 2016, Parks rear-ended Cobb’s pickup truck with his vehicle while Cobb
sat stopped at a traffic light at an intersection in Detroit. Cobb exited his vehicle, walked back to
Parks who remained inside his car, became furious and asked him what he was doing. Cobb
looked at his truck and found the right side of his bumper pushed in and a slightly dented fender.
Cobb did not notice any damage to Parks’s small vehicle. Cobb and Parks exchanged
information, left the scene, and later reported the accident to the police because, in Detroit, in
accidents not resulting in serious injury or vehicle damage, parties may go to the police station to
report an accident. Parks testified that he saw no damage to Cobb’s vehicle after the accident
and that his vehicle sustained some minor damage to its front bumper. Parks reported the
accident to his insurance company but he did not have repairs done to his vehicle.
After Cobb left the accident scene he drove to a woman’s house with whom he had
arranged to do some home improvement projects. He told her that he intended to go to the
hospital, left her house and went to the emergency room because his back and neck caused him
concern. The hospital treated and released him with instructions to follow up with a neurologist.
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Cobb returned to the woman’s house the next day to unload the dirt from his truck with the
assistance of two men. He admitted that the day after the accident he unloaded his truck, cut
trees, and did some painting at the woman’s house. He testified that while performing the work
the day after the accident he felt something wrong with his neck so he returned to the emergency
room. Hospital personnel gave Cobb a shot and a prescription for pain which he did not fill
because he did not like taking pills. Later Cobb consulted with Dr. Alexander Ajlouni (his
regular pain management doctor) who ordered an MRI.
Progressive insured Cobb’s vehicle. Progressive stated in its submissions to the trial
court that Cobb’s insurance policy provided:
This policy was issued in reliance upon information provided on your
insurance application. We may void this policy at any time, including after the
occurrence of an accident or loss, if you:
1. made incorrect statements or representations to us with regard to any
material fact or circumstance;
2. concealed or misrepresented any material fact or circumstance; or
3. engaged in fraudulent conduct; at the time of application. This means
we will not be liable for claims or damages that would otherwise be covered.
We may deny coverage for an accident or loss if you or a person seeking coverage
has knowingly concealed or misrepresented any material fact or circumstance, or
engaged in fraudulent conduct, in connection with the presentation or settlement
of a claim.
On August 25, 2016, Cobb communicated with Progressive regarding making a PIP
benefits claim. Progressive’s claim representative told Cobb to submit an application for
benefits and provide the required information. She informed Cobb that his claim was under
investigation and that he had substantial preexisting conditions for which he had received
treatment for over the past four years. She confirmed that his claim was not denied at the time
but that Progressive required additional information including a list of medical providers and
authorization to obtain his medical records so that it could determine what injuries related and
did not relate to the August 2016 accident.
Cobb submitted an application for no-fault benefits to Progressive that he dated and
signed on August 25, 2016. In it he provided a basic description of the August 2016 accident.
He reported that he injured his neck, spine, and lower back. In the box on the application form
that asked if he received any medical treatment for the same or similar symptoms before the
accident, Cobb checked both the yes and no boxes. In the accompanying box he identified Dr.
Ajlouni and a pain clinic located in Southfield, Michigan. The benefit application form stated:
“Please list physician, hospital, clinic or other medical institution providing care for auto related
injuries.” In response, Cobb only identified the pain clinic and an entity named Internal
Medicine as providers of medical services that those two entities provided to him on August 26,
2016.
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On January 19, 2017, Cobb sued Parks and Progressive alleging that Parks’s negligent
failure to operate his vehicle safely and stop when required caused Cobb “severe, grievous and
permanent personal injuries, disability, damages, serious impairment of bodily functions and
permanent, serious disfigurement” including “[i]njuries to and about the lumbar and cervical
spine necessitating a lumbar fusion surgery and cervical spine fusion surgery, and sequelae” and
injuries “to his head, shoulders, entire neck, back and spine” and injuries “to and about the entire
musculoskeletal system.” Cobb specifically alleged that Progressive entered a contract for auto
insurance with him that entitled him to recover no-fault PIP benefits from Progressive pursuant
to MCL 500.3101 et seq. He alleged that Progressive wrongly refused to pay his medical
expenses and for replacement services despite having been presented proof of loss and allowable
expenses that arose from the 2016 accident in violation of the no-fault act. Parks and
Progressive answered the complaint and denied any liability.
The parties engaged in discovery through which defendants obtained Cobb’s medical
records and deposition testimony. Progressive moved for summary disposition on the ground
that Cobb falsified information in his application for PIP benefits, application for replacement
services, and during its investigation of his claims for benefits in violation of the terms of his
insurance policy. Progressive relied on Bahri v IDS Prop Cas Ins Co, 308 Mich App 420 (2014),
among other cases, for the proposition that Cobb’s misrepresentations constituted fraudulent
conduct that fell within its policy’s fraud and misrepresentation exclusion that permitted it to
deny Cobb PIP benefits and void his policy. Progressive supported its motion with Cobb’s
medical records, his deposition testimony, a physician’s expert analysis of the accident and
Cobb’s medical records, an accident reconstruction report that concluded that the 2016 accident
involved a collision by Parks’s vehicle at a speed of approximately four to nine miles per hour,
and a surveillance report with photographs depicting Cobb doing various energetic physical
activities during the period for which Cobb sought benefits for replacement services.
Parks moved for summary disposition on the ground that Cobb could not establish that,
as a result of the August 2016 accident, he suffered a serious impairment of a body function that
affected his general ability to lead his normal life as required under MCL 500.3135. Parks relied
on Cobb’s medical records and deposition testimony. Cobb opposed their motions. In response
to Progressive’s motion he argued that he made no misrepresentations in his applications for
benefits and relied on a selection of his medical records related to treatment provided to him after
the 2016 accident and a letter procured by his counsel from his surgeon to support his contention
that the accident exacerbated his condition. In response to Parks’s motion, Cobb argued that the
analysis required by McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010) required the
trial court to rule that Cobb established that he suffered from an objectively manifested
impairment of a bodily function that affected his general ability to lead his normal life.
Following a hearing, the trial court granted defendants’ respective motions and dismissed Cobb’s
case.
II. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary
disposition under MCR 2.116(C)(10). Latham v Barton Malow Co, 480 Mich 105, 111; 746
NW2d 868 (2008), reh den 481 Mich 882 (2008). A motion brought pursuant to MCR
2.116(C)(10) tests the factual support of a plaintiff’s claim and is reviewed “by considering the
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pleadings, admissions, and other evidence submitted by the parties in the light most favorable to
the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding
any material fact and the moving party is entitled to judgment as a matter of law.” Id. When
opposing a properly asserted and supported motion for summary disposition under MCR
2.116(C)(10), the nonmoving party cannot rely on mere allegations or denials in his or her
pleadings to establish a question of fact. See Quinto v Cross & Peters Co, 451 Mich 358, 362;
547 NW2d 314 (1996). Rather, the nonmoving party must present at least some evidentiary
proof, some statement of specific fact upon which to base his case. Maiden v Rozwood, 461
Mich 109, 120-121; 597 NW2d 817 (1999), reh den 461 Mich 1205 (1999); Skinner v Square D
Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A genuine issue of material fact exists “when
reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8
(2008).
This Court also reviews de novo questions of statutory interpretation and the proper
interpretation of a contract. Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d 562 (2012).
This Court reviews de novo the interpretation of an insurance contract just like any other
contract. Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744
NW2d 174 (2007). This Court “look[s] at the language of the insurance policy and interpret[s]
its terms in accordance with the principles of contract construction. Where there is no
ambiguity, an insurance contract must be enforced as written in accordance with its terms.”
Allstate Ins Co v Muszynski, 253 Mich App 138, 141; 655 NW2d 260 (2002) (citation omitted).
III. ANALYSIS
Cobb argues that the trial court erred by granting Progressive’s motion because he never
misrepresented any facts in relation to his claim for PIP benefits. We disagree.
The record reflects that Progressive relied on this Court’s Bahri decision and the trial
court found that case applicable and dispositive of Progressive’s motion for summary
disposition. In Bahri, the plaintiff sued for PIP benefits from the defendant insurer who declined
to pay for replacement services because the plaintiff sought payment for services she received
before her motor vehicle accident occurred. Bahri, 308 Mich App at 421-422. Further, the
insurer submitted to the trial court for its consideration a surveillance video that showed the
plaintiff doing tasks that she claimed she was unable to perform. Id. at 422. The insurer moved
for and the trial court granted it summary disposition under MCR 2.116(C)(10), on the ground
that the fraud exclusion provision in the plaintiff’s insurance policy barred her claim. Id. This
Court agreed with the trial court’s conclusion that the fraud exclusion applied. Id. at 425. This
Court approved the trial court’s consideration of the “surveillance evidence that depicted the
plaintiff performing activities inconsistent with her claimed limitations.” Id. This Court found it
particularly noteworthy that the surveillance evidence captured the plaintiff doing various
household activities for which she sought replacement services. Id.
This Court affirmed because the evidence of her claim for preaccident replacement
services and the surveillance video “belie[d] plaintiff’s assertion that she required replacement
services, and it directly and specifically contradict[ed] representations made in the replacement
services statements.” Bahri, 308 Mich App at 426. This Court concluded that “reasonable
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minds could not differ in light of this clear evidence that plaintiff made fraudulent
representations for purposes of recovering PIP benefits. Stated differently, we find no genuine
issue of material fact regarding plaintiff’s fraud.” Id.
In Bahri, this Court reiterated the test for establishing fraud or false swearing:
To void a policy because the insured has wilfully 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. A statement is material if it is reasonably relevant to
the insurer’s investigation of a claim. [Id. at 424-425 (citation omitted).]
“Initially, in reviewing an insurance policy dispute we must look to the language of the
insurance policy and interpret the terms therein in accordance with Michigan’s well-established
principles of contract construction.” Henderson v State Farm Fire & Cas Co, 460 Mich 348,
353; 596 NW2d 190 (1999). “The language in an insurance contract should be read as a whole,
and we construe the language to give effect to every word, clause, and phrase.” Bahri, 308 Mich
App at 423. Where an insurance policy contains clear and unambiguous contract language, this
Court “must enforce the specific language of the contract.” McGrath v Allstate Ins Co, 290 Mich
App 434, 439; 802 NW2d 619 (2010). Further, “[a] court must not hold an insurance company
liable for a risk that it did not assume.” Henderson, 460 Mich at 354.
In this case, Progressive represented to the trial court that Cobb’s insurance policy
provided:
We may deny coverage for an accident or loss if you or a person seeking
coverage has knowingly concealed or misrepresented any material fact or
circumstance, or engaged in fraudulent conduct, in connection with the
presentation or settlement of a claim. [See Progressive’s Summary Disposition
Motion, p 3; Progressive’s Brief in Support of Motion for Summary Disposition,
p 21.]
Progressive did not attach a copy of the policy it issued to Cobb as an exhibit to its
summary disposition motion or supporting brief. Cobb contends for the first time on appeal that
Progressive’s failure to attach the policy requires reversal of the trial court’s ruling in favor of
Progressive. Cobb argues that, for Progressive to support its position, it had to meet the
requirements of MCR 2.116(G)(6)1 by attaching his policy to prove that it contained the fraud
1
MCR 2.116(G)(6) provides:
Affidavits, depositions, admissions, and documentary evidence offered in
support of or in opposition to a motion based on subrule (C)(1)—(7) or (10) shall
only be considered to the extent that the content or substance would be admissible
as evidence to establish or deny the grounds stated in the motion.
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and misrepresentation exclusion provisions. Cobb asserts in his appeal brief that his insurance
policy “may” not contain the fraud and misrepresentation provisions on which Progressive
relied. Cobb essentially argues that the trial court could not render a decision in favor of
Progressive without looking at the actual policy document to determine what his policy stated.
Cobb, however, never raised this issue before the trial court or even intimated that his policy did
not contain the fraud and misrepresentation provisions on which Progressive relied.
Michigan generally follows a raise or waive rule of appellate review. Walters v Nadell,
481 Mich 377, 387-388; 751 NW2d 431 (2008). Although the Michigan Supreme Court has
held that this Court must review unpreserved errors in criminal cases for plain error affecting the
defendant’s substantial rights, see People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999),
it has not established a similar holding for civil cases. See Walters, 481 Mich at 387-388; see
also Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App 364, 377-378;
761 NW2d 353 (2008) (stating that the failure to properly raise a claim of error before the trial
court in a civil case normally constitutes a waiver of that claim and declining to exercise its
discretion to review the unpreserved claim under the facts of that case).
Nevertheless, this Court has discretion to overlook preservation requirements. See Smith
v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006) (stating that this
Court may overlook preservation requirements where the failure to consider the issue would
result in a manifest injustice, or if consideration is necessary for a proper determination of the
case, or if the issue involves a question of law and the facts necessary for its resolution have been
presented). This Court will review forfeited issues when declining to do so would result in a
miscarriage of justice. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
However, this Court exercises such discretion sparingly and only where exceptional
circumstances warrant review. Booth v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23;
507 NW2d 422 (1993).
We do not find that this case presents exceptional circumstances warranting review of
this aspect of Cobb’s claim of error. Cobb waived any claim of error regarding Progressive’s
reliance on the language in his policy. Progressive recited in its motion and supporting brief the
language of its no-fault auto insurance policy issued to Cobb. Cobb had the opportunity to
challenge the accuracy of Progressive’s representation of the language in his policy by
submitting evidence, if any existed, of contrary language or evidence that his policy did not
contain the fraud and misrepresentation provisions on which Progressive relied. This issue
should have been raised by him before the trial court so that it could determine the validity of his
assertion. Significantly, Cobb does not deny that he contracted with Progressive for his auto
insurance and that Progressive issued him a policy. Even on appeal Cobb does not and
apparently cannot establish that his policy did not contain the fraud and misrepresentation
provisions on which Progressive relied. He merely states that it “may” not have stated the
language Progressive recited in its motion and brief. We find no exceptional circumstances that
warrant our giving credence to Cobb’s argument. We conclude that Cobb cannot show that his
policy lacked the fraud and misrepresentation provisions on which Progressive relied or that his
policy’s language differed from Progressive’s standard language found in Progressive’s policies
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issued in Michigan.2 As explained herein, reasonable minds could not differ in light of the
evidence presented by Progressive that plaintiff made fraudulent representations for purposes of
recovering PIP benefits. Accordingly, we decline to consider this aspect of Cobb’s claim of
error.
Further, Cobb essentially advances the argument that, if an insurance policy does not
expressly state that no benefits are recoverable if an insured fraudulently misrepresents his
injuries and conditions before and after an accident, then an insured is free to say anything to the
insurer and still recover PIP benefits regardless of the veracity of his representations. That
proposition is neither supported by Michigan contract law nor the no-fault act. MCL
500.3105(1) provides in relevant part that an “insurer is liable to pay benefits for accidental
bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle[.]”
“Accordingly, a no-fault insurer is liable to pay benefits only to the extent that the claimed
benefits are causally connected to the accidental bodily injury arising out of an automobile
accident.” Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 531; 697 NW2d 895 (2005).
“It is not any bodily injury that triggers an insurer’s liability under the no-fault act. Rather, it is
only those injuries that are caused by the insured’s use of a motor vehicle.” Id.Michigan contract law and the no-fault act do not support imposing performance
obligations upon insurers to pay benefits, or imposing liability for not doing so, if the insured
makes misrepresentations in his application or during the investigation of his claim for no-fault
benefits by the insurer. “Insurance policies are contracts and, in the absence of an applicable
statute, are subject to the same contract construction principles that apply to any other species of
contract.” Titan Ins Co v Hyten, 491 Mich 547, 554; 817 NW2d 562 (2012) (quotation marks
and citation omitted). Because insurance policies are contracts, common-law defenses including
fraud may be asserted to avoid enforcement of an insurance policy so long as that defense is not
prohibited by statute. Id. at 554-555. It is well settled under Michigan law that parties to a
2
Moreover, although Progressive concedes that it did not present the trial court a copy of the
subject policy, it submits that Cobb’s policy contained the standard fraud and misrepresentation
provisions that all auto insurance policies issued in Michigan contain. Progressive explains that
it filed its standard Michigan auto insurance policy with and obtained approval from Michigan’s
Department of Insurance and Financial Services and its standard policy is readily accessible on
the Internet at https://filingaccess.serff.com/sfa/home/MI. Under MRE 201(b), courts may take
notice of certain adjudicative facts that are “capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.” Further, judicial notice of
facts may be taken at any stage of the proceedings including at the appellate level. MRE 201(e);
Hetrick v Friedman, 237 Mich App 264, 269; 602 NW2d 603 (1999), disagreed with on other
grounds Wold Architects and Eng v Strat, 474 Mich 223; 713 NW2d 750 (2006). In this case,
Progressive’s standard policy is publicly available through Michigan’s Department of Insurance
and Financial Services official website and the source does not appear to be one that can
reasonably be questioned. Therefore, this Court may take judicial notice of the fact that
Progressive’s standard auto insurance policy contained the fraud and misrepresentation
provisions on which Progressive relied.
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contract have a duty of good faith and fair dealing in both their performance and the enforcement
of the contract. Flynn v Korneffel, 451 Mich 186, 213, n 8; 547 NW2d 249 (1996), citing 2
Restatement, Contracts 2d, § 205, p 99. It is axiomatic that Michigan law does not support the
proposition that a party to a contract can misrepresent facts to obtain performance by the other
contracting party. The fundamental principle that insureds must honestly state their claims for
PIP benefits, honestly assist insurers in claim investigations, and not misrepresent facts to obtain
benefits, upholds the letter and spirit of Michigan’s no-fault law. Indeed, in MCL 500.3148(2),
the Legislature supported this principle by providing for an insurer’s recovery of attorney fees in
cases where the insurer must defend “against a claim that was in some respect fraudulent or so
excessive as to have no reasonable foundation.” As a contracting party, Progressive had the right
to insist that Cobb base his claim on true, accurate, and complete information, and honestly assist
his insurer in its investigation, before Progressive performed by paying him PIP benefits.
Therefore, as a matter of basic contract law, Progressive had entitlement to investigate Cobb’s
claims for benefits and deny performance if Cobb fraudulently sought benefits, failed to provide
true, accurate, and complete information, and failed to honestly assist Progressive in its
investigation of his claim.
We now must address whether de novo review of the record supports the trial court’s
grant of summary disposition to Progressive on the grounds that Cobb committed fraud or
misrepresentations to obtain PIP benefits. To establish the contract defense of actionable fraud,
Progressive had to show that Cobb knowingly or recklessly made a material misrepresentation of
fact that he knew was false when he made it, and he did so with the intent that Progressive act
upon it. Bahri, 308 Mich App at 424-425. “A statement is material if it is reasonably relevant to
the insurer’s investigation of a claim.” Id. at 425.
In this case, Progressive supported its motion with documentary evidence including
Cobb’s applications for benefits and replacement services, numerous medical records, and
Cobb’s own deposition testimony. The record reflects that Cobb communicated with
Progressive’s representative on August 25, 2016, before he submitted his application for
benefits. That representative went over each individual page of Progressive’s application for
benefits form and confirmed that he needed to send Progressive the application for benefits with
a list of his providers and doctors information along with a medical authorization form. She
specifically advised him that his claim for PIP benefits was under investigation based upon his
substantial preexisting conditions of which Progressive had notice that he treated with the same
doctor for pain management for over four years. The representative advised further that a claim
adjuster would request records so that a review could determine what conditions related to the
2016 accident. Cobb does not dispute that he received these instructions and information from
Progressive before he completed and submitted his application for benefits to Progressive.
The record indicates that, in his application for benefits signed on August 25, 2016, Cobb
failed to provide Progressive a complete and accurate list of all of his medical providers and he
specifically withheld information about medical providers and treatment that he indisputably
received before the 2016 accident. Cobb’s explanation for the inadequacies of his application for
benefits lacks merit particularly in light of his having been told in detail precisely what
Progressive needed from him to determine his claim. Under this set of undisputed facts,
reasonable minds could not differ regarding Cobb’s failure to provide Progressive true, accurate,
and complete information in his application for benefits.
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Based upon Cobb’s extensive medical records presented to the trial court, reasonable
minds also could not differ regarding the extent of and seriousness of Cobb’s preexisting
conditions respecting his cervical, thoracic, and lumbar spine. Additionally, the evidence of the
2016 motor vehicle accident did not support Cobb’s claim that he was involved in an accident
from which he suffered any injuries or even an exacerbation of his preexisting conditions.
Unrebutted evidence in the record indicated that the 2016 accident involved a very low speed
impact that caused only cosmetic damage to the involved vehicles and no deployment of airbags.
One cannot reasonably conclude that Parks impacted Cobb’s pickup at 40 miles per hour as
Cobb told the hospital personnel and reiterated to his physician Dr. Park. The record evidence
does not logically support the proposition that a vehicle traveling at 40 miles per hour striking a
stationary pickup with a load of dirt could sustain virtually no damage or deployment of its
airbags. Cobb’s representations regarding the accident to the hospital and his doctor defy the
laws of physics. The photo of Cobb’s pickup after the 2016 accident that Progressive submitted
for the trial court’s consideration depicted the rear of his vehicle with nothing more than
cosmetic damage. Cobb proffered no evidence to establish an accident that could cause injury or
exacerbate his preexisting conditions.
The record also reflects that Cobb neglected or failed to fully cooperate with Progressive
so that it could acquire copies of his medical records to enable it to determine the merits of his
claim for PIP benefits. In its motion for summary disposition, Progressive informed the trial
court of Cobb’s serious uncooperative conduct from August 2016 through August 2017. Cobb
neither denied Progressive’s contention nor offered any explanation for his derelict conduct in
failing to timely provide authorization to Progressive and access to his medical records so that it
could complete its investigation.
At his deposition, Cobb testified repeatedly that he had no neck or back problems for
years before the 2016 accident. Gradually, as he faced repeated challenges to his denials and
faced questioning regarding his extensive medical records that plainly contradicted his
testimony, Cobb conceded that he had preexisting conditions for which he received treatment for
many years before the 2016 accident. He ultimately admitted that during August 2016 just
shortly before the accident he received pain treatments for his spine. Contrary to his contentions
on appeal, the record reflects that Cobb had no problems with his memory nor did he lack the
mental ability to understand the questions posed to him. The application for benefits that Cobb
submitted to Progressive made no mention of Cobb’s substantial well-documented preexisting
medical conditions.
After extensive questioning, Cobb also admitted that he had been determined disabled in
2013 and had not worked a regular job since. He admitted that he had held no employment after
2013 and only did odd jobs for cash. Cobb’s testimony reveals that he responded with false
denials unless and until directly challenged with the truth of his serious preexisting conditions
which were thoroughly documented over numerous years in his medical records. Cobb’s
medical records established unequivocally that he had involvement in a number of motor vehicle
accidents that caused him injuries to his cervical, thoracic, and lumbar spine for which he sought
and received ongoing treatment from 2007 right up to the time of the 2016 accident, none of
which were disclosed or described in his initial application for no-fault benefits in the instant
case. Cobb’s medical records also indicated that medical providers recommended spine surgery
on more than one occasion before the 2016 accident because of his significant degenerative disc
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disease and ongoing serious problems with his back and neck. His medical records belied
Cobb’s contention that he was getting better and that the 2016 accident caused him the injuries
for which he indisputably received treatments over many years leading up to the accident.
Cobb’s medical records also contradicted his later claim that the accident exacerbated his
condition.
Progressive submitted for the trial court’s consideration mechanical engineer and
neurologist Dr. David Brenner’s unrebutted opinion that (1) Cobb’s injuries were not the result
of the August 2016 accident, (2) Cobb had preexisting degenerative disc disease of the neck and
back before the August 2016 accident, (3) Cobb was diagnosed before the 2016 accident with
cervical and lumbar radiculopathy, (4) Cobb’s neck and back surgeries were performed for his
preexisting degenerative disc disease of his neck and back which were not caused by the August
2016 accident. De novo review of Cobb’s medical records supports Dr. Brenner’s conclusions.
Cobb proffered no substantive admissible evidence to rebut these conclusions. Instead, he
offered his surgeon’s letter to his attorney in which he stated only that he believed the 2016
accident may have exacerbated Cobb’s preexisting condition. A close reading of Dr. Park’s
letter, however, does not permit one to reasonably conclude that the statements made therein
created a genuine issue of material fact because he did not render a definitive opinion.
Moreover, the letter reveals that he premised his conclusion on Cobb’s unsupported
representation that Parks’s vehicle hit his pickup while “going at least 40 miles per hour.”
Regardless, considering the totality of the evidence in the record, reasonable minds could
not differ on the issue that Cobb intentionally misrepresented material facts about his condition
in his application and throughout Progressive’s investigation of his claim for benefits.
Reasonable minds also could not differ on the issue that Cobb did so with the intent to have
Progressive act on his material misrepresentations and omissions to secure PIP benefits.
Therefore, the trial court did not err by ruling that Cobb made misrepresentations that entitled
Progressive to deny him PIP benefits.
Cobb’s contention that Progressive could not rely on the accident reconstruction report or
the surveillance report and that the trial court reversibly erred by considering them also lacks
merit. Those reports were unrebutted by Cobb and he failed to raise before the trial court any
objections to them or provide the trial court evidence that called the facts on which they were
based into question. Accordingly, Cobb waived appellate review of his claim that the trial court
erred by considering this evidence.
Further, the accident reconstruction report, albeit not in admissible form, contained
evidence that would be admissible at trial and supported by the expert witness testimony of its
author. This Court has explained that, “while a motion for summary disposition must be
supported by admissible evidence, that evidence does not have to be in admissible form” at the
summary disposition stage of the proceedings. Latits v Phillips, 298 Mich App 109, 113; 826
NW2d 190 (2012), quoting Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285
Mich App 362, 373, 775 NW2d 618 (2009). Trial courts have discretion to recognize the
qualifications of a witness as an expert and also to admit proposed expert testimony. Surman v
Surman, 277 Mich App 287, 304-305; 745 NW2d 802 (2007). Here, the trial court had not ruled
on the proposed expert’s qualifications or the admissibility of the expert’s anticipated testimony
reflected in the accident reconstruction report. But the report indicated that the expert had the
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requisite education, training, and experience regarding the specialized area of accident
reconstruction and reflected that the expert applied basic laws of physics to the evidence,
establishing that his specialized knowledge would assist the trier of fact to understand the
evidence or to determine a fact in issue. To the extent that the proposed expert’s report
summarized testimony that would be admissible at trial, the trial court could consider it on a
motion for summary disposition. MCR 2.116(G)(6); Maiden, 461 Mich at 123-124 n6.
Therefore, the trial court did not err by considering this evidence.
Respecting the surveillance report, during the summary disposition hearing, Cobb
admitted that the report and accompanying photos were what they were. He essentially
conceded the veracity of the report regarding his physical activities during the period for which
he sought replacement services. This Court may conclude as it did in Bahri, that the surveillance
report showed his level of physical activity during the relevant time and that his conduct belied
his assertion that he required replacement services for the period for which he sought them.
Therefore, the trial court did not err by considering this evidence.
Although substantively admissible evidence submitted at the time of the summary
disposition motion must be viewed in the light most favorable to the party opposing the motion,
the non-moving party must come forward with at least some evidentiary proof, some statement
of specific fact upon which to base his case. Maiden, 461 Mich at 120-121. In this case, Cobb
failed to do so. The evidence preponderated against his claim and he produced no evidence to
establish the existence of a genuine issue of material fact. Therefore, the trial court did not err by
granting Progressive summary disposition because it concluded based on the evidence that Cobb
intentionally misrepresented material facts to obtain PIP benefits and failed to establish a
genuine issue of material fact to support his case. Because of Cobb’s misrepresentations,
Progressive was entitled to deny him PIP benefits.
Cobb also argues that the trial court erred by granting Parks summary disposition. We
disagree.
In a third-party automobile negligence action, the plaintiff must not only prove that the
injury was caused by the alleged accident but also that the injury met the no-fault threshold to
impose tort liability on the defendant. MCL 500.3135 provides in relevant part:
(1) A person remains subject to tort liability for noneconomic loss caused
by his or her ownership, maintenance, or use of a motor vehicle only if the injured
person has suffered death, serious impairment of a body function, or permanent
serious disfigurement.
(2) For a cause of action for damages pursuant to subsection (1) filed on
or after July 26, 1996, all of the following apply:
(a) The issues of whether the injured person has suffered serious
impairment of body function or permanent serious disfigurement are questions of
law for the court if the court finds either of the following:
(i) There is no factual dispute concerning the nature and extent of the
person’s injuries.
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(ii) There is a factual dispute concerning the nature and extent of the
person’s injuries, but the dispute is not material to the determination whether the
person has suffered a serious impairment of body function or permanent serious
disfigurement.
* * *
(5) As used in this section, “serious impairment of body function” means
an objectively manifested impairment of an important body function that affects
the person’s general ability to lead his or her normal life.
In McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010), our Supreme Court
explained:
On its face, the statutory language [of MCL 500.3135(5)] provides three prongs
that are necessary to establish a “serious impairment of body function”: (1) an
objectively manifested impairment (2) of an important body function that (3)
affects the person’s general ability to lead his or her normal life.
“[A]n ‘objectively manifested’ impairment is commonly understood as one observable or
perceivable from actual symptoms or conditions.” Id. at 196. The Supreme Court explained that
MCL 500.3135(5), however, “does not contain the word ‘injury,’ and, under the plain language
of the statute, the proper inquiry is whether the impairment is objectively manifested, not the
injury or its symptoms.” The focus of the inquiry, therefore, must be on whether the plaintiff
suffered an impairment which “is the ‘state of being impaired’ ” which “means being ‘weakened,
diminished, or damaged’ or ‘functioning poorly or inadequately.’ ” Id. at 197 (citations omitted).
“Accordingly, when considering an ‘impairment,’ the focus is not on the injuries themselves, but
how the injuries affected a particular body function.” Id. (quotation marks and citation omitted).
The Supreme Court reaffirmed the principle that “showing an impairment generally requires
medical testimony.” Id. at 198 (citation omitted). It explained further that, if “there is an
objectively manifested impairment of body function, the next question is whether the impaired
body function is ‘important.’ ” Id. Our Supreme Court directed:
Finally, if the injured person has suffered an objectively manifested
impairment of body function, and that body function is important to that person,
then the court must determine whether the impairment “affects the person’s
general ability to lead his or her normal life.” [Id. at 200.]
* * *
[T]o “affect” the person’s “general ability” to lead his or her normal life is to
influence some of the person’s power or skill, i.e., the person’s capacity, to lead a
normal life. [Id. at 201.]
* * *
[T]he common understanding of “to lead his or her normal life” is to live, or pass
life, in his or her normal manner of living. [Id. at 202.]
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Therefore, the plain text of the statute and these definitions demonstrate
that the common understanding of to “affect the person’s ability to lead his or her
normal life” is to have an influence on some of the person’s capacity to live in his
or her normal manner of living. By modifying “normal life” with “his or her,” the
Legislature indicated that this requires a subjective, person- and fact-specific
inquiry that must be decided on a case-by-case basis. Determining the effect or
influence that the impairment has had on a plaintiff’s ability to lead a normal life
necessarily requires a comparison of the plaintiff’s life before and after the
incident. [Id.]
* * *
First, the statute merely requires that a person’s general ability to lead his or her
normal life has been affected, not destroyed. Thus, courts should consider not
only whether the impairment has led the person to completely cease a pre-incident
activity or lifestyle element, but also whether, although a person is able to lead his
or her pre-incident normal life, the person’s general ability to do so was
nonetheless affected.
Second, and relatedly, “general” modifies “ability,” not “affect” or
“normal life.” Thus, the plain language of the statute only requires that some of
the person’s ability to live in his or her normal manner of living has been affected,
not that some of the person’s normal manner of living has itself been affected.
Thus, while the extent to which a person’s general ability to live his or her normal
life is affected by an impairment is undoubtedly related to what the person’s
normal manner of living is, there is no quantitative minimum as to the percentage
of a person’s normal manner of living that must be affected.
Third, and finally, the statute does not create an express temporal
requirement as to how long an impairment must last in order to have an effect on
“the person’s general ability to live his or her normal life.” [Id. at 202-203.]
In McCormick, 487 Mich at 215, our Supreme Court stated that the proper interpretation
of the clear and unambiguous language in MCL 500.3135 creates the following test:
To begin with, the court should determine whether there is a factual
dispute regarding the nature and the extent of the person’s injuries, and, if so,
whether the dispute is material to determining whether the serious impairment of
body function threshold is met. MCL 500.3135(2)(a)(i) and (ii). If there is no
factual dispute, or no material factual dispute, then whether the threshold is met is
a question of law for the court. Id.
If the court may decide the issue as a matter of law, it should next
determine whether the serious impairment threshold has been crossed. The
unambiguous language of MCL 500.3135([5]) provides three prongs that are
necessary to establish a “serious impairment of body function”: (1) an objectively
manifested impairment (observable or perceivable from actual symptoms or
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conditions) (2) of an important body function (a body function of value,
significance, or consequence to the injured person) that (3) affects the person’s
general ability to lead his or her normal life (influences some of the plaintiff’s
capacity to live in his or her normal manner of living).
This Court recently explained in Piccione v Gillette, ___ Mich App ___; ___ NW2d ___
(2019), slip op at 3, in relation to determining whether the plaintiff suffered a serious
impairment:
In making that determination, “there is no bright-line rule or checklist to
follow[.]” Chouman v Home Owners Ins Co, 293 Mich App 434, 441; 810
N.W.2d 88 (2011). Instead, “[w]hether someone has suffered a serious
impairment is ‘inherently fact-and circumstance-specific and [the analysis] must
be conducted on a case-by-case basis.’ ” Id., quoting McCormick, 487 Mich. at
215 (brackets in original).
In this case, Parks relied on Cobb’s medical records and his deposition testimony to
establish Cobb’s preaccident physical condition. Based on that evidence, Parks argued that Cobb
failed and could not establish that the 2016 accident caused him any injury that could be
considered an impairment that affected his general ability to lead his normal life. In Ray v
Swager, 501 Mich 52, 64; 903 NW2d 366 (2017), our Supreme Court clarified that
a court must find that the defendant’s negligence was a cause in fact of the
plaintiff’s injuries before it can hold that the defendant’s negligence was the
proximate or legal cause of those injuries. In a negligence action, a plaintiff must
establish both factual causation, i.e., the defendant’s conduct in fact caused harm
to the plaintiff, and legal causation, i.e., the harm caused to the plaintiff “was the
general kind of harm the defendant negligently risked. If factual causation cannot
be established, then proximate cause, that is, legal causation, is no longer a
relevant issue. [Quotation marks and citations omitted.]
The record reflects that Cobb’s medical records and his deposition testimony indicated
that Cobb’s preaccident baseline condition of neck, thoracic, and lumbar pain and suffering were
severe requiring ongoing treatment right up to the time of the 2016 accident. Further, Cobb’s
degenerative disc disease had advanced before the 2016 accident to a level that treating
physicians recommended surgical intervention. Before the 2016 accident, the evidence of record
indicates that Cobb had been diagnosed disabled from work and although he did odd jobs for
cash, his normal life activities were impacted by his back and neck conditions, as well as his
knee problem, shoulder problem, and other maladies. Although the evidence established that
Parks caused the 2016 accident, the evidence did not establish that the accident caused Cobb’s
injuries. Objective analysis of Cobb’s extensive serious preexisting conditions does not support
Cobb’s contention that he suffered any injury or an exacerbation of his condition. Cobb failed to
submit substantive admissible evidence that established the cause in fact and proximate cause
elements of his claim against Parks. Even assuming that he could, the record does not support
his assertion that the 2016 accident caused an impairment that affected his general ability to lead
his normal life.
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The record contains evidence regarding Cobb’s postaccident condition. Immediately
following the accident, Cobb drove to the house of a person with whom he had contracted to
provide services. He did not require an ambulance to transport him to the hospital. Two and one
half hours after the accident, he drove himself to the hospital. At the hospital, medical personnel
examined and discharged Cobb after administering some pain medication and giving him a
prescription. The hospital records indicate that hospital personnel knew of Cobb’s previous
treatments for the condition about which he complained, a condition they considered chronic, not
acute. Although Cobb later underwent surgeries for his neck and lumbar spine after the 2016
accident, de novo review of the record does not establish that the surgeries and his postsurgery
treatment were necessitated by the 2016 accident. His previous diagnosis of degenerative disc
disease had led treatment providers to recommend the same surgeries but he declined to do so.
Further, when questioned regarding how the 2016 accident affected his general ability to
lead his normal life, Cobb only testified that it affected his sex life. When asked to explain how,
he stated that he was single and before the accident he had frequent sexual relations each week,
but after the accident he had sexual relations only four times. When pressed further, Cobb
admitted that his sexual relations issues had been going on for quite a while because of his left
knee which had nothing to do with his 2016 accident but arose from an earlier motor vehicle
accident. Cobb also testified that after the 2016 accident he chose not to engage in sex because
he had mixed emotions that impacted his passion. He admitted that no doctor restricted him
from sexual activities. Cobb also initially attributed his lack of church attendance after the 2016
accident to the accident, but when challenged he testified that he simply stopped going because
the church’s members had not supported him after his accident to his liking. Cobb offered no
testimony regarding any activities that he could not do after the 2016 accident that he had done
before the accident.
Parks also relied on the surveillance report. That report presented photographs depicting
Cobb walking extended distances without problem, walking up and down steps without problem,
and jumping from parking curb top to parking curb top without problem, all of which supported
the position that Cobb did not lack mobility or postaccident physical impairment.
Analysis of the record evidence establishes that Cobb failed to demonstrate the existence
of a genuine issue of material fact regarding the determination whether he met the serious
impairment threshold. Although Cobb complained of pain in his neck and back after the 2016
accident, the record does not support a conclusion that he suffered an injury in the 2016 accident
that required the surgeries he underwent. Further, the evidence, even when viewed in the light
most favorable to Cobb, does not support his contention that he suffered an impairment as a
result of the 2016 accident that impacted his life. Although he demonstrated that he had serious
neck and back problems diagnosed by his doctors, the evidence established that those conditions
indisputably existed for a long time before the 2016 accident and required ongoing treatments for
a significant number of years right up to August 2016 and caused his doctors to recommend
surgery before the 2016 accident.
The evidence also does not support Cobb’s contention that his impairment affected his
general ability to lead his normal life. The record in this case permits a preaccident to
postaccident comparison. Other than the fact that Cobb had neck and back surgeries followed by
a short period of recuperation, the evidence presented by defendants in the surveillance report
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established that, by February 2017, Cobb had experienced recovery to his preaccident baseline.
Cobb admitted that he self-imposed the restrictions on his activities and that no doctor ordered
any restrictions.
Unlike the plaintiff in McCormick, whose broken ankle, symptoms, and conditions arose
indisputably from his accident, and his normal manner of living, including his ability to work
and engage in his hobbies, were also indisputably affected, the record in this case lacks evidence
establishing that Cobb suffered any impairment to his general ability to lead his normal life.
This case also differs from Piccione where the plaintiff, a three-year-old child,
indisputably suffered a broken arm as a result of a motor vehicle accident which indisputably
interfered with his general ability to lead his normal life because he could not attend school and
when he did he could not play on the school equipment. Further, in Piccione, evidence
established that after his accident, the plaintiff could not dress himself, needed help traversing
stairs because of balance problems, could not sleep because of pain, and did not do other
activities like coloring, sports, and bike riding. Piccione, ___ Mich App at ___; slip op at 3-4.
The record in this case lacks evidence of any changes after the 2016 accident to Cobb’s general
ability to lead his normal life. The record reflects that the day after the accident, Cobb did
several odd jobs at the person’s house with whom he had contracted to perform services. Other
than the fact that he had surgeries for his chronic neck and back conditions and went through a
period of recuperation, Cobb presented no evidence that the 2016 accident caused an impairment
that affected his general ability to lead his normal life.
The record reflects that Parks met his burden as the moving party to present sufficient
evidence to demonstrate that any impairment of a body function did not affect Cobb’s general
ability to live his normal life. Once Parks did so, the burden shifted to Cobb to demonstrate with
admissible evidence the existence of a genuine issue of material fact otherwise. Smith v Globe
Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). Cobb failed to present substantive
admissible evidence to establish that his normal manner of living changed.
De novo review of the record in this case establishes that Cobb failed to satisfy all three
prongs of MCL 500.3135(5). Cobb failed to establish (1) an objectively manifested impairment
caused by the 2016 accident (2) of an important body function that (3) affected his general ability
to lead his normal life. McCormick, 487 Mich at 215. Therefore, as a matter of law, Cobb failed
to meet the serious impairment threshold under MCL 500.3135(1). Accordingly, the trial court
did not err by ruling that, as a matter of law, Cobb failed and could not meet the serious
impairment threshold under MCL 500.3135(1). Therefore, the trial court appropriately granted
Parks summary disposition.
We hold that the trial court did not err by granting Progressive summary disposition
because de novo review of the record establishes that, viewing the record in the light most
favorable to Cobb, reasonable minds could not differ on the issue that Cobb made
misrepresentations of material fact in his applications for PIP benefits which justified
Progressive’s decision to deny Cobb benefits. We also hold that the trial court did not err by
granting Parks summary disposition because Cobb failed to establish that he suffered a serious
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objectively manifested impairment of a body function caused by the 2016 accident that affected
his general ability to lead his normal life.
Affirmed.
/s/ Michael F. Gadola
/s/ Deborah A. Servitto
/s/ James Robert Redford
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