Wanda Smith v. Progressive Marathon Insurance Company

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
WANDA SMITH, UNPUBLISHED
June 29, 2023
Plaintiff-Appellant,
and
SHELBY GLAZER, PC,
Intervening Plaintiff,
v No. 360908
Wayne Circuit Court
PROGRESSIVE MARATHON INSURANCE LC No. 20-000381-NF
COMPANY,
Defendant-Appellee.
Before: HOOD, P.J., and CAMERON and GARRETT, JJ.
PER CURIAM.
Plaintiff, Wanda Smith (Smith), appeals as of right the order granting summary disposition
in favor of defendant, Progressive Marathon Insurance Company (Progressive), in this no-fault
action to recover personal protection insurance (PIP) benefits. We reverse and remand.
I. BACKGROUND
This case arises out of a claim for PIP benefits stemming from injuries Smith suffered in a
November 2017 automobile accident. Smith’s son, Shalonda Treadway, owned a Buick LeSabre
that he insured under his business entity, SC Treadway Management, through Progressive. In
early November 2017, Smith left Treadway’s Detroit residence in the Buick and drove westbound
on the Davison Freeway near the Linwood Street intersection. Smith, seeing no oncoming
vehicles, attempted to make a left turn, and an oncoming vehicle struck Smith and the Buick.
Smith went to the hospital for treatment of injuries to her head, neck, and back and, as a result of
the accident, received extensive medical care for her injuries. She sought PIP benefits from
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Progressive to cover her medical care and in-home replacement services. According to Smith’s
complaint, Progressive failed or refused to pay her PIP benefits.
Smith did not have automobile insurance at the time of the accident, and Treadway’s
insurance policy did not list Smith as a driver of the Buick. The policy listed the Farmington Hills,
Michigan, apartment of Treadway’s girlfriend as the garaging address, despite Treadway stating
that he resided at his home in Detroit and regularly garaged the Buick there. Treadway later
changed the garaging address to his business office in Brighton, Michigan. He admitted, however,
that he never garaged the Buick in Brighton.
Smith sued Progressive,1 alleging that Progressive breached its contract and violated the
Michigan no-fault statute, MCL 500.3101 et seq., when it denied her PIP benefits under
Treadway’s insurance policy for the Buick. Progressive moved for summary disposition under
MCR 2.116(C)(10). It argued that, in his application for insurance coverage, Treadway
fraudulently misrepresented the garaging address for the Buick, entitling Progressive to seek
rescission of the policy and dismissal of Smith’s claims. Progressive argued that Treadway’s
misrepresentations were material, because according to Progressive Process Consultant, David
Hale, had Treadway listed his residence in Detroit as the garaging address, Treadway’s premium
would have increased 128%, from $2,736 to $6,247. Progressive also argued that even if Smith
was an innocent third party, rescission was proper because the balance of equities favored
Progressive.
The trial court granted Progressive’s motion for summary disposition without a hearing,
finding that “Treadway failed to disclose” where he garaged the Buick, resulting in a “material
misrepresentation.” Referencing the “equitable analysis” described in Bazzi v Sentinel Ins Co, 502
Mich 390, 400-411; 919 NW2d 20 (2018), the trial court found that “it would be inequitable to
deny Progressive the right to rescind its policy and deny coverage to [plaintiff] on this basis.” In
arriving at this conclusion, the court relied on Smith’s familial relationship with Treadway and her
“regular use” of the Buick. This appeal followed.
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under
1
Smith initially attempted to commence this action on February 4, 2019, however, that action was
dismissed by stipulation and without prejudice in February 2020. In its order granting summary
disposition (the order appealed from), the trial court addressed the one-year-back rule, stating in
relevant part:
[T]he Court shall proceed as if Progressive agreed to the stipulation alleged by
Plaintiff. And if the parties agreed to such a provision, then the Court finds that the
one-year-back rule would be applied from the date the prior suit was filed. This
result is further supported by the fact that the prior suit was not dismissed until after
the second suit was filed. Thus, Smith’s claim against Progressive has been
pending continuously since the filing of the prior suit.
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MCR 2.116(C)(10) “tests the factual sufficiency of a claim.” Id. at 160 (citation and emphasis
omitted). In considering a motion under MCR 2.116(C)(10), the trial court “must consider all
evidence submitted by the parties in the light most favorable to the party opposing the motion.”
Id. (citation omitted). Such a motion “may only be granted when there is no genuine issue of
material fact.” Id. (citation omitted). “A genuine issue of material fact exists when the record
leaves open an issue upon which reasonable minds might differ.” Id. (quotation marks and citation
omitted).
The equitable remedy of rescission is “granted only in the sound discretion of the court.”
Pioneer State Mut Ins Co v Wright, 331 Mich App 396, 405; 952 NW2d 586 (2020) (Wright)
(quotation marks and citations omitted). “An abuse of discretion occurs when the decision falls
outside the range of reasonable and principled outcomes.” Id. (citation omitted). “An abuse of
discretion necessarily occurs when the trial court makes an error of law.” Id. (citation omitted).
III. LAW AND ANALYSIS
Smith argues that the trial court erred in granting summary disposition because Progressive
failed to establish that equity favored rescission of the insurance policy, with regard to her status
as an innocent third party. Because the trial court did not address the factors relevant to rescission,
we agree.
Rescission is an equitable remedy. Bazzi, 502 Mich at 409. It allows a court to “abrogate[]
a contract and restore[] the parties to the relative positions that they would have occupied if the
contract had never been made.” Id. (citation omitted). Traditionally, the innocent third party rule
barred an insurer “from rescinding an insurance policy because of a material misrepresentation
made in an application for no-fault insurance where there is a claim involving an innocent third
party.” Webb v Progressive Marathon Ins Co, 335 Mich App 503, 511-512; 967 NW2d 841(2021), quoting Sisk-Rathburn v Farm Bureau Gen Ins Co, 279 Mich App 425, 430; 760 NW2d
878 (2008) (quotation marks omitted). In Bazzi, our Supreme Court held that its decision in Titan
Ins Co v Hyten, 491 Mich 547; 817 NW2d 562 (2012), abrogated the innocent third party rule,
thereby allowing an insurer to seek rescission of an automobile insurance policy in cases of fraud.
Bazzi, 502 Mich at 406-407.
Although the “innocent-third-party rule no longer bars insurers from seeking rescission,
insurers are not categorically entitled to rescission.” Wright, 331 Mich App at 409-410 (quotation
marks and citation omitted). Rather, rescission “is granted only in the sound discretion of the
court.” Bazzi, 502 Mich at 409 (quotation marks and citations omitted). When an insurer seeks
rescission, “the trial court must balance the equities to determine whether the plaintiff is entitled
to the relief he or she seeks.” Id. at 410 (quotation marks and citations omitted).
On appeal, Smith does not challenge the trial court’s finding that Treadway made a
material, fraudulent misrepresentation in procuring the insurance policy. We note, however, that
Progressive presented evidence establishing that Treadway made a false, material
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misrepresentation regarding where he garaged the Buick.2 Treadway admitted that he primarily
resided in and garaged the Buick at his home in Detroit, but failed to list this address on his
insurance policy. Treadway initially listed a Farmington Hills address as the garaging address for
the Buick, then, in August 2017, switched it to the address of his business in Brighton, Michigan.
At the time of the accident, Treadway’s insurance policy listed Brighton as the garaging location,
even though Treadway admitted that he never garaged the Buick in Brighton. Progressive relied
on this misrepresentation and was injured by it, as explained by Hale, because had Treadway
accurately reported the garaging location of the Buick, Treadway’s premium would have increased
128% from $2,736 to $6,247.
Smith argues that, despite Treadway’s misrepresentation and Progressive’s entitlement to
rescind the policy, she should remain eligible for payment of benefits as an innocent third party.
In Farm Bureau Gen Ins Co of Mich v ACE American Ins Co, 503 Mich 903, 906-907; 919 NW2d
294 (2018) (MARKMAN, C.J., concurring), Justice Markman’s concurrence detailed a nonexclusive
list of factors for courts to consider when balancing the equities in deciding whether to grant
rescission. This Court in Wright, 331 Mich App at 396, adopted Justice Markman’s five identified
factors for consideration in these circumstances:
(1) the extent to which the insurer could have uncovered the subject matter
of the fraud before the innocent third party was injured; (2) the relationship between
the fraudulent insured and the innocent third party to determine if the third party
had some knowledge of the fraud; (3) the nature of the innocent third party’s
conduct, whether reckless or negligent, in the injury-causing event; (4) the
availability of an alternate avenue for recovery if the insurance policy is not
enforced; and (5) a determination of whether policy enforcement only serves to
relieve the fraudulent insured of what would otherwise be the fraudulent insured’s
personal liability to the innocent third party. [Wright, 331 Mich App at 411
(citation omitted).]
We examine each factor in turn to address Smith’s claim of error.
A. FACTOR ONE: UNCOVERING THE FRAUD
The first Wright factor examines the extent to which the insurer could have uncovered the
subject matter of the fraud before the innocent third party was injured. Wright, 311 Mich App at
411. Insurers have no duty to investigate or verify the representations of an insured. See Titan Ins
Co, 491 Mich at 557. And when “[t]here is no evidence to suggest that there could or could not
have been a more diligent effort” to discover any misrepresentations, this factor will favor neither
2
To establish a claim for fraudulent misrepresentation, an insurer must show that (1) the insured
“made a material misrepresentation,” (2) “that it was false,” (3) that when the insured made the
statement, they “knew that it was false, or made it recklessly, without any knowledge of its truth
and as a positive assertion,” (4) that they “made it with the intention that it should be acted upon
by” the insurer, (5) that the insurer “acted in reliance upon it,” and (6) that by acting in reliance on
the material misrepresentation, the insurer “suffered injury.” Titan, 491 Mich at 555-556 (citation
omitted).
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party. See Wright, 331 Mich App at 412. Nothing in the record suggests Progressive could have
uncovered the subject matter of the fraud at issue before Smith’s accident, nor did Progressive
have a duty to investigate whether Treadway’s representations to obtain the insurance policy were
true. This factor favors neither party.
B. FACTOR TWO: RELATIONSHIP BETWEEN FRAUDULENT INSURED AND THE
INNOCENT THIRD PARTY
The second factor examines the relationship between the fraudulent insured and the
innocent third party to determine whether the third party knew of the fraud. Wright, 331 Mich
App at 411. Here, the trial court identified facts relating to whether Smith was an innocent party,
including the familial relationship between Treadway and Smith, Smith’s involvement in the
purchase of the vehicle, and Smith’s admission at her deposition that she drove the vehicle on a
regular basis, “whenever [she] needed to go somewhere.” But the trial court did not make findings
regarding how those facts weigh for or against rescission.
Progressive argues that the familial relationship between Treadway and Smith, Treadway’s
intent to put Smith on the insurance policy (despite forgetting to do so), and the fact that Smith
served as secretary for Treadway’s business—the named insured on the policy—was evidence that
Smith knew of the fraud. But the record also indicates that although Smith was aware that the
Buick was insured, and she accompanied Treadway to purchase the Buick years earlier, she did
not pay for the Buick, and did not remember signing any documents related to the purchase of, or
insurance for, the Buick. She also was not involved with the procurement of the insurance policy.
It is unclear whether she was aware of where Treadway listed the garaging location for the Buick.
And she did not live with Treadway. Accordingly, there is conflicting evidence regarding whether
Smith knew of Treadway’s fraud. “[A] court may not make findings of fact; if the evidence before
it is conflicting, summary disposition is improper.” Piccione v Gillette, 327 Mich App 16, 19; 932
NW2d 197 (2019) (quotation marks and citation omitted; emphasis in original). Because there is
conflicting evidence on the record regarding Smith’s knowledge of the fraud, there is a factual
dispute on that issue. By failing to analyze whether this factor favored rescission before granting
rescission and summary disposition, the trial court erred.
C. FACTOR THREE: NATURE OF INNOCENT THIRD PARTY’S CONDUCT
The third factor examines the nature of the innocent third party’s conduct to see whether
the innocent third party was reckless or negligent in the injury-causing event. Wright, 331 Mich
App at 411. “In general, a factual dispute exists when there is conflicting evidence concerning
what happened, when something happened, where something happened, how something happened,
who was involved, or some other similar factual inquiry.” Attorney General v PowerPick Players’
Club of Mich, LLC, 287 Mich App 13, 27; 783 NW2d 515 (2010) (emphasis in original).
Progressive argued that there was evidence supporting the conclusion that Smith caused the
accident by negligently failing to yield.3 Smith testified, however, that traffic was clear when she
3
To the extent Progressive’s evidence on this issue was the traffic crash report, we note that such
reports are generally inadmissible hearsay and cannot be considered on a motion for summary
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turned. The trial court did not make a finding on this factor, nor acknowledge the conflicting
evidence. And as noted earlier, if the parties present conflicting evidence on a material issue,
summary disposition is improper. Piccione, 327 Mich App at 19. We, therefore, find that the trial
court erred by failing to adequately consider this factor.
D. FACTOR FOUR: ALTERNATE AVENUE FOR RECOVERY
The fourth factor examines the availability of an alternate avenue for recovery if the
insurance policy is not enforced. Wright, 331 Mich App at 411. Smith argues that if the policy is
rescinded, the notice provisions of MCL 500.3145 and MCL 500.3174 would bar her from
recovering the majority, if not all, of the PIP benefits she seeks from the November 2017 accident.
She also argues that Progressive’s delay seeking rescission precludes her from recovering PIP
benefits from any other source. MCL 500.3174 states, in relevant part:
A person claiming through the assigned claims plan shall notify the
Michigan automobile insurance placement facility of his or her claim within 1 year
after the date of the accident. On an initial determination of a claimant’s eligibility
for benefits through the assigned claims plan, the Michigan automobile insurance
placement facility shall promptly assign the claim in accordance with the plan and
notify the claimant of the identity and address of the insurer to which the claim is
assigned. An action by a claimant must be commenced as provided in [MCL
500.3145]. [MCL 500.3174 (emphasis added).]
Further, the one-year-back rule, under MCL 500.3145(1), states:
An action for recovery of personal protection insurance benefits payable
under this chapter for an accidental bodily injury may not be commenced later than
1 year after the date of the accident that caused the injury unless written notice of
injury as provided in subsection (4) has been given to the insurer within 1 year after
the accident or unless the insurer has previously made a payment of personal
protection insurance benefits for the injury. [MCL 500.3145(1) (emphasis added).]
The accident at issue occurred in November 2017. Smith commenced this action in January
2020. There is no evidence Smith sought PIP benefits through the Michigan Assigned Claims
Program (MACP) or other insurers. As Progressive rightly points out, even if it had immediately
sought rescission, Smith would have been past the one-year deadline to recover through the
MACP, even considering that she initially attempted to commence this action on February 4, 2019.
Smith, therefore, failed to comply with the deadlines in MCL 500.3145 and MCL 500.3174.
Although the trial court did not make an explicit finding on this factor, accepting Progressive’s
characterization, the evidence supports finding this factor weighs in favor of Progressive.
disposition. See Moncrief v Detroit, 398 Mich 181, 188-192; 247 NW2d 783 (1976). See also
Solomon v Shuell, 435 Mich 104, 139; 457 NW2d 669 (1990). On remand, the trial court should
take this into consideration when evaluating the third Wright factor.
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E. FACTOR FIVE: POLICY ENFORCEMENT
The fifth factor examines whether policy enforcement only serves to relieve the fraudulent
insured of what would otherwise be the fraudulent insured’s personal liability to the innocent third
party. Wright, 331 Mich App at 411. Both parties concede that this factor does not apply, and we
agree. We, therefore, conclude that this factor favors neither party.
F. BALANCE OF THE EQUITIES
The fourth factor favors Progressive. The first and fifth factor of the equity-balancing test
favors neither party. Genuine issues of material fact exist with respect to the second and third
factors. Those factual disputes must be resolved by the trial court. See Zurcher v Herveat, 238
Mich App 267, 297; 605 NW2d 329 (1999) (indicating that absent the consent of the parties,
equitable remedies are decided by the trial court without a jury). Because there is a factual dispute
regarding factors two and three of the equity-balancing test, Smith may still be entitled to equitable
relief as an innocent third party. The trial court, therefore, erred in granting summary disposition
to Progressive.
IV. CONCLUSION
We reverse and remand for further proceedings. We do not retain jurisdiction.
/s/ Noah P. Hood
/s/ Thomas C. Cameron
/s/ Kristina Robinson Garrett
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