Denise Lippett et al v Auto-Owners et al, COA # 352373 (May 20, 2021).
A-M Law Attorney Christopher Endres successfully defended a case for Auto-Owners in both the trial court and the Court of Appeals that resulted in a favorable ruling for his client. This appeal involved eight plaintiffs and seven defendants. Denise Lippett was involved in two motor vehicle accidents. The first on September 12, 2017, and the second on December 24, 2017. Cincinnati was the insurer for the first accident and Auto-Owners was the priority insurer for PIP benefits for the second accident. Ms. Lippett accrued upwards of $1,000,000 in no-fault benefits following the two accidents. Lippett initially filed her suit, but did not name Auto-Owners. It was not until three months after the discovery cut off that Auto-Owners was brought in to the lawsuit. Upon being brought in to the lawsuit, Auto-Owners served written discovery upon Ms. Lippett and requested she attend an independent medical examination. Ms. Lippett did not respond to the majority of the discovery, only answering Request for Admissions, which prompted Auto-Owners to file a Motion to Compel the outstanding discovery, and Ms. Lippett stipulated to have the responses no later than May 2, 2019. Ms. Lippett also failed to attend numerous independent medical examinations. In November 2019, Auto-Owners filed a Motion to Dismiss for the discovery violations as trial was less than 60 days away. After extensive oral argument, the trial court evaluated the Dean v Tucker factors, and found that dismissal was appropriate. The Court of Appeals agreed and affirmed the dismissal.
Should you have any questions or would like to discuss this case in further detail, please feel free to contact Attorney Christopher Endres. [email protected]
A-M Law Attorney and Shareholder, John Ruth, was successful in two separate recent Court of Appeals decisions. The first was overturning a Wayne County jury verdict in the amount of $150,000 for Home Owners. Plaintiff, Nationwide asserted that Home Owners’ insured did not properly transfer title and subsequently Home Owners was the insurer of the involved vehicle and responsible to reimburse Nationwide for their no-fault payments. The Court of Appeals ruled that the lower court improperly instructed the jury as to the requirements to transfer title. The Court of Appeals held that transfer of title was affirmed by the jury and therefore Home Owners was no longer the insurer of the involved motor vehicle at the time of the accident.
Mr. Ruth was also successful in having the Court of Appeals affirm the lower courts ruling that American Country was the responsible no fault carrier to provide no fault benefits to the catastrophically injured party. In doing so, the Court affirmed a prior judgement in excess of $750,000 in favor Auto Club. American Country argued that based upon misrepresentations of their insured, they were not responsible to provide no fault benefits to the injured party. The Court of Appeals held that although the insured made misrepresentations, the injured party was an innocent 3rd party to those misrepresentations and that American is required to reimbursor Auto Club and provide benefits to the injured party.
If you would like to discuss either of these cases please feel free to contact John D. Ruth at [email protected].
A-M Law Attorney, Joseph Mierzejewski, completed a 2-day No Fault PIP trial in 30th District Court (Highland Park) on July 15th 2021. The 7 member panel of the Jury returned a unanimous verdict of No Cause for Action after 3 hours of deliberation. This was the first post-pandemic trial in the 30th District. The Court informed the parties that it was the first defense verdict in a civil case there in at least 7 years.
The case involved a minor accident with the Plaintiff provider seeking damages of just under the Court’s $25,000 jurisdictional limit for interventional pain injections and an ablation. Defendant had paid the emergency room and some physical therapy bills. The defense focused on causation (history of pre-existing conditions) and the reasonableness of the charges (at least 7 times Medicare reimbursement rates for the same services).
A-M Law Shareholder Kevin P. Wirth recently obtained an order granting his Motion for Summary Disposition on behalf of Auto Club Insurance Association from the Wayne County Circuit Court. The Court ruled that that a plaintiff was ineligible for no-fault benefits pursuant to MCL 500.3173a(2) which resulted in a dismissal of his entire case. Mr. Wirth was able to successfully argue that the claimant’s denial that he had pre-existing medical conditions on his application for insurance benefits that were material to his claim for no-fault benefits qualified as a fraudulent insurance act in accordance with MCL 500.4503 barring him from any no-fault benefits from Defendant Auto Club Insurance Association.
Associate Attorney Simone Fabiilli had a recent victory for her client in obtaining a monetary judgment against the Claimant Injured Person arising out of a motor vehicle accident. Simone’s MACP servicing insurer client had previously paid no-fault benefits to the Claimant prior to that Claimant’s PIP lawsuit being dismissed on summary disposition as it was discovered the Claimant unlawfully took the involved vehicle under MCL 500.3113(a). In heading a separate recovery action, Simone was successful in briefing and arguing that her client should recover the amounts it had paid prior to the dismissal that were for the Claimant’s no-fault benefits in addition to loss adjustment costs and attorney fees incurred by her client on a claim that was never eligible for assignment and payment of benefits through the assigned claims plan program. Simone successfully obtained a judgment for her client against the Claimant for a full recovery based on causes of action for unjust enrichment, payment through mistake of fact, and fraud on a part of the Claimant.
Shareholder Kevin P. Wirth recently obtained orders from both the Wayne County and Oakland County Circuit Courts determining that a claimant was ineligible for no-fault benefits pursuant to MCL 500.3173a(2). Mr. Wirth was able to successfully argue that the claimant’s submission of replacement service calendars for dates of service before the accident and for time frames that inconsistent with his sworn testimony equated to a fraudulent insurance act thus barring him from any no-fault benefits from Defendant Nationwide Mutual Fire Insurance Company. These orders also resulted in dismissals of other medical provider suits after Mr. Wirth was able to argue that the circuit court orders were res judicata and barred these medical provider’s claims.
Simone R. Fabiilli had a recent victory for the firm concerning a circuit court interlocutory appeal of two district court medical provider lawsuits. On appeal, Ms. Fabiilli had written the briefs and attended oral argument, achieving a ruling that the derivative claims for services arising from a motor vehicle accident that had been brought by medical providers were not eligible for no-fault benefits through the Michigan Assigned Claims Plan program. Ms. Fabiilli’s successful argument was that the injured claimant, who assigned his right to pursue a lawsuit to the medical providers, was not eligible for those same benefits when he had created several material misrepresentations in support of his claim under MCL 500.3173a(2) and corresponding case law. This ruling that the injured claimant was not eligible for any no-fault benefits on appeal resulted in the dismissal of multiple, derivative provider lawsuits against Ms. Fabiilli’s client.
From June 20, 2017 through June 26, 2017, A-M Law Attorney Mark L. Nawrocki successfully defended Auto-Owners Insurance Company in a claim for reimbursement of Michigan No-Fault benefits. Mr. Nawrocki demonstrated to the jury that Plaintiff’s claim contained numerous fraudulent elements. As such, the jury concluded that Plaintiff committed fraud in relation to his claim and found in favor of Auto-Owners in issuing a “No Cause” verdict. Plaintiff filed an appeal to the Michigan Court of Appeals and alleged that the Trial Court erred regarding the special jury verdict form and the Plaintiff’s request to call Auto-Owners’ expert witness as a witness. On April 25, 2019, the Court of Appeals issued its opinion and concluded that the Trial Court did not err when it excluded the expert witness as the issue of injury causation was not contested by Auto-Owners. Regarding Plaintiff’s argument that the Trial Court erred in allowing the special jury verdict form, the Court of Appeals stated “[w]e conclude that this argument is wholly lacking in merit.”
A-M Law Shareholder Michael D. Phillips prevailed on a Motion for Summary Disposition on behalf of the MAIPF. The owner of the involved vehicle left his uninsured vehicle parked at a family member’s home when he moved out-of-state with instructions not to use the vehicle. The owner’s mother used the vehicle without asking permission and was involved in an accident. On dispositive motions, the Court ruled that either the vehicle was taken without permission or the operator was the constructive owner of the vehicle based on her pre-suit testimony that she believed she could use the vehicle without asking permission.
A-M Law Attorney, Joseph Mierzejewski, prevailed on a Motion for Partial Summary Disposition to dismiss claims for lost wages, replacement services and attendant care. None of the Plaintiff’s treating physicians prescribed household services or attendant care, or disabled her from working. The family members providing services testified that they had no expectation of payment. The Court ruled the services were not incurred within the meaning of the No-Fault Act. The Court dismissed the wage loss claim, holding that since Plaintiff returned to work for 2 ½ years after the accident without any modifications or restrictions, lost wages did not arise out of the accident.
A-M Law shareholders, John Ruth and Michael Phillips, prevail in the Michigan Court of Appeals. In Marvin Brown v. Michigan Assigned Claims Plan, MACP, the Plaintiff appealed a Circuit Court ruling dismissing a lawsuit against the Assigned Claims Plan for failure to timely provide discovery, and failure to comply with a Trial Court order compelling the discovery. Plaintiff appealed the Trial Court’s ruling, arguing that dismissal was too harsh a sanction, and that the Trial Court erred by not considering a lesser sanction before dismissing the action. However, the Court of Appeals affirmed the Trial Court ruling, finding that even though dismissal is a drastic sanction, Defendant had met its burden of demonstrating that dismissal was appropriate where: (1) Plaintiff failed to timely provide answers to discovery; and (2) Plaintiff failed to comply with an order compelling the discovery, and also providing the self-executing relief of dismissal as a remedy for non-compliance. Brown v. Michigan Assigned Claims Plan, dock. #338375 (July 19, 2018).
A-M Law Shareholder, Michael D. Phillips, prevails in the Michigan Court of Appeals. In Ali Soueidan v. Farm Bureau General Insurance Company, the Plaintiff appealed a Circuit Court ruling granting Farm Bureau summary disposition under MCR 2.116(C)(10) where the defense argued that Plaintiff fraudulently misrepresented claims. Through the course of discovery, Farm Bureau obtained testimony that Plaintiff traveled on vacation on two occasions while claiming he was receiving replacement services and attendant care. Defendant also obtained surveillance of Plaintiff on numerous days at an oil change facility, which he owned, while he claimed wage loss. In addition, the surveillance showed the Plaintiff shoveling snow on a day where he claimed to require replacement services, although he did not specifically claim he needed assistance with shoveling snow. Taken together, the Court of Appeals agreed with the arguments presented by the defense and affirmed the Trial Court’s ruling of summary disposition. Soueidan v. Farm Bureau Gen. Ins. Co., dock. #338388 (July 24, 2018).
A-M Law Attorney Mark L. Nawrocki receives a favorable decision from the Court of Appeals on behalf of Citizens Insurance Company. On January 9, 2012, Christine Delavega was driving her father, Jerry Sholtey’s, vehicle and was involved in a motor vehicle accident. Ms. Delavega filed a claim with the MAIPF, which was assigned to Citizens Insurance Company. Citizens paid benefits and incurred costs totaling $381,050.27. Citizens filed a subrogation lawsuit against Mr. Sholtey alleging his vehicle was uninsured at the time of the accident and thus is responsible to reimburse Citizens. Sholtey filed a Third-Party Complaint against Auto Club Insurance Association (“ACIA”), claiming he was insured at the time of the motor vehicle accident and thus ACIA is responsible to reimburse Citizens. ACIA argued that they cancelled the automobile insurance policy on December 15, 2011.
All parties filed dispositive motions and the Court awarded Citizens $381,050.27 against ACIA, finding that ACIA did not comply with the mandatory cautionary warning of MCL 500.3020(6) when it attempted to cancel the policy, which states:
A notice of cancellation, including a cancellation notice under section 3224, shall be accompanied by a statement that the insured shall not operate or permit the operation of the vehicle to which notice of cancellation is applicable, or operate any other vehicle, unless the vehicle is insured as required by law.
ACIA appealed the Trial Court decision to the Court of Appeals, again arguing that it correctly cancelled the policy or alternatively, to submit that matter to a jury to determine whether the policy was correctly cancelled. The Court of Appeals found that ACIA did not correctly cancel the policy and the policy was in effect on the date of the accident. As such, Court of Appeals confirmed the Trial Court’s judgment in favor of Citizens against ACIA.
A-M Law Attorney, Joseph Mierzejewski, recently completed a four day Trial in Lapeer County Circuit Court, winning a judgment of No Cause for Action. Plaintiff, his wife, and his granddaughter were occupying Plaintiff’s truck when they were struck in the rear by Defendant’s insured, traveling to 80-100 mph. Both vehicles were totaled. Plaintiff claimed to have sustained a serious impairment of a body function resulting in fusion surgery to his sacroiliac joint, left shoulder rotator cuff surgery, and right knee surgery. Liability was admitted. The case was tried on the issues of causation and serious impairment. Plaintiff presented three expert witnesses, a neurosurgeon, an orthopedic surgeon, and a pain management specialist. The defense called an orthopedic surgeon expert witness. Mr. Mierzejewski’s cross-examination of Plaintiff, relying on voluminous records, was effective in raising significant questions regarding Plaintiff’s credibility. In closing argument, it was argued that, although negligence was admitted, Plaintiff’s injuries were limited to soft tissue sprains and strains, and the surgeries were not due to injuries that arose out of the accident.
After 35 minutes of deliberations, the jury returned a verdict finding that Defendant was negligent, the negligence caused injuries to Plaintiff, the injuries were proximately caused by Defendant, but Plaintiff’s injuries did not rise to the level of a serious impairment of a body function.
A-M Law Shareholder Mark Sowle obtained a verdict of No Cause of Action in a Wayne County case which was defended on the basis of insurance fraud. Plaintiff claimed first party no-fault benefits against Farm Bureau Insurance. Mr. Sowle won the case by introducing evidence that the MRIs Plaintiff relied upon were fraudulent, and that Plaintiff’s medical treatment was orchestrated by his attorneys. The verdict resulted in case evaluation sanctions against Plaintiff in excess of $35,000.
A-M Law Shareholder Mark Sowle obtained a verdict of No Cause of Action in Oakland County which was defended on the basis of insurance fraud. Plaintiff claimed first party no-fault benefits and underinsured benefits against Farm Bureau Insurance. Plaintiff had undergone an L5-S1 fusion which he asserted arose out of a motor vehicle accident. Mr. Sowle won the case by demonstrating that the surgery was the result of Plaintiff’s recruitment into a treatment ring facilitated by his attorneys, and was determined not to be reasonable or necessary to his care and recovery. Mr. Sowle also proved to the jury that Plaintiff had submitted more than 80 days of fraudulent attendant care claims. The verdict resulted in case evaluation sanctions against Plaintiff in excess of $45,000.
A-M Law Shareholder, Michael D. Phillips, obtained a verdict of No Cause of Action on behalf of the Michigan Auto Insurance Placement Facility in a first party no-fault action. At Trial, Plaintiff presented claims for medical expenses, replacement services, and wage loss benefits. However, the jury agreed with the MAIPF and found that Plaintiff was disqualified from receiving benefits for the reason that, at the time of the accident, Plaintiff was driving his girlfriend’s uninsured vehicle without first obtaining permission, and as a result was in violation of Michigan’s anti-joyriding statutes. The Trial lasted four days; and followed a ruling from the Court finding a question of fact on the issue of unlawful taking.
A-M Law Attorney Mark L. Nawrocki obtained a verdict of No Cause of Action in a Macomb County Circuit Court jury trial. The matter was defended on the basis of a fraudulent claim. Plaintiff claimed injury to his neck, lower back, shoulder, and bicep. Plaintiff underwent physical therapy from February until May 2015 and then again from March 2016 until May 2016. Mr. Nawrocki won the case by arguing multiple fraudulent submissions to the insurer, including Plaintiff receiving social security disability benefits while making a wage loss claim of $50,000 to $60,000 a year by selling Rottweilers. Proofs showed Plaintiff was selling Rottweilers after the accident. Additionally, Mr. Nawrocki demonstrated to the jury, 21 other instances of fraud. The jury deliberated for 12 minutes before unanimously concluding that Plaintiff’s claim was fraudulent and a No Cause of Action verdict was entered. The verdict resulted in case evaluation sanctions and attorney fees pursuant to MCL 500.3148(2).