            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


DAISIAN WRIGHT, also known as DAIZION                                UNPUBLISHED
WRIGHT,                                                              May 7, 2020
          Plaintiff-Appellee,

v                                                                    No. 347112
                                                                     Washtenaw Circuit Court
FARM BUREAU GENERAL INSURANCE                                        LC No. 17-000160-NF
COMPANY OF MICHIGAN, also known as FARM
BUREAU MUTUAL INSURANCE COMPANY OF
MICHIGAN,

               Defendant-Appellant.


Before: MURRAY, C.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

       In this action for personal protection insurance (PIP) benefits arising out of a motor vehicle
accident in which plaintiff, Daisian Wright, sustained injuries, defendant, Farm Bureau General
Insurance Company of Michigan, appeals by delayed leave granted1 the trial court’s order denying
summary disposition in favor of defendant. This appeal is being decided without oral argument
pursuant to MCR 7.214(E)(1). We reverse and remand for the trial court to enter an order of
summary disposition for defendant.

                                    I. UNDERLYING FACTS

        Plaintiff was involved in an automobile accident on April 7, 2016; as a result of the crash
she suffered injuries that prevented her from going to work. Because she did not have any
automobile insurance of her own, plaintiff completed, signed, and submitted an application for PIP
benefits to the Michigan Automobile Insurance Placement Facility (MAIPF). Plaintiff’s claim for
benefits was subsequently assigned to Farm Bureau through the Michigan Assigned Claims Plan


1
  Wright v Farm Bureau Gen Ins Co of Mich, unpublished order of the Court of Appeals, entered
January 18, 2019 (Docket No. 347112).




                                                -1-
(MACP). When completing the application, plaintiff checked boxes indicating that she “reviewed
the application in its entirety and attest that the information contained therein is true and accurate”
and that she had read the fraud warning. The fraud warning in the application provided:

       A person who presents or causes to be presented an oral or written statement,
       including computer-generated information, as part of or in support of a claim to the
       Michigan Assigned Claims Plan maintained by the Michigan Automobile
       Insurance Placement Facility for payment or any other benefit knowing that the
       statement contains false information concerning a fact or thing material to the claim
       commits a fraudulent insurance act under section 4503 of the insurance code that is
       subject to the penalties imposed under section 4511. A claim that contains or is
       supported by a fraudulent insurance act as described in this subsection is
       ineligible for payment or benefits under the Assigned Claims Plan.

       In her application, plaintiff claimed that she was employed at IHOP and Marshalls at the
time of the accident. Plaintiff additionally claimed that she missed work because of her injuries
and that she had a note from her doctor stating that she should be able to return to work on May 9,
2016. Plaintiff then filed a claim against defendant for PIP benefits in February 2017. During the
course of those proceedings, plaintiff was deposed. In her deposition, plaintiff testified that she
was employed at IHOP and Marshalls at the time of the accident. Regarding her employment at
IHOP, plaintiff testified that she began working at IHOP as a hostess in January 2016 and that she
worked all weekends from 9:00 a.m. to about 6:00 p.m. Plaintiff testified that she initially was
paid $8.75 per hour, but that she had received a raise so at the time of the accident she was paid
$9 per hour.

        Defendant contacted Kal Farah, the owner and operator of the IHOP where plaintiff
claimed she worked. Farah averred that plaintiff resigned from IHOP on March 27, 2016 and that
she was not employed at IHOP on the day of the accident. Additionally, defendant obtained an
electronic spreadsheet from Farah showing employee hours worked and compensation from
February 6, 2016 to April 10, 2016. The spreadsheet showed that plaintiff’s last day of work was
March 27, 2016, she was only ever paid $8.50 per hour, and that she never worked more than 5.88
hours in an individual shift.2

       Based on this information, defendant moved for summary disposition under MCR
2.116(C)(10) and argued that plaintiff’s claim for PIP benefits should be denied because it was
based, at least in part, on fraudulent statements about her employment at IHOP. The trial court
denied plaintiff’s motion for summary disposition. This appeal followed.




2
  If plaintiff started work at 9:00 a.m., a 5.88 hour shift would end at 3:53 p.m. Furthermore,
plaintiff worked anywhere between 2.85 and 5.88 hours per day, for an average of 4.20 hours per
day worked.


                                                 -2-
                                         II. ANALYSIS

      Defendant argues that the trial court improperly denied its motion for summary disposition.
We agree.

        A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206; 815 NW2d 412 (2012).
This Court reviews a motion brought under MCR 2.116(C)(10) “by considering the pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018).
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. “There is a genuine issue of
material fact 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). “Only the substantively admissible evidence actually proffered may be
considered.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57
(2009) (quotation marks and citation omitted). “Circumstantial evidence can be sufficient to
establish a genuine issue of material fact, but mere conjecture or speculation is insufficient.”
McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016).

        The moving party has the initial burden to support its claim with documentary evidence,
but once the moving party has met this burden, the burden then shifts to the nonmoving party to
establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich App 255, 261;
704 NW2d 712 (2005). Additionally, if the moving party asserts that the nonmovant lacks
evidence to support an essential element of one of his or her claims, the burden shifts to the
nonmovant to present such evidence. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d
344 (2016).

        Finally, “[i]ssues of statutory interpretation are reviewed de novo.” City of Riverview v
Sibley Limestone, 270 Mich App 627, 630; 716 NW2d 615 (2006). “Statutory provisions must be
read in the context of the entire act, giving every word its plain and ordinary meaning. When the
language is clear and unambiguous, we will apply the statute as written and judicial construction
is not permitted.” Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011).

     MCL 500.3173a(2), as amended by 2012 PA 214, applies to claims submitted under the
MAIPF and states as follows:

                A person who presents or causes to be presented an oral or written
       statement, including computer-generated information, as part of or in support of a
       claim to the Michigan automobile insurance placement facility for payment or
       another benefit knowing that the statement contains false information concerning a
       fact or thing material to the claim commits a fraudulent insurance act under section
       4503 that is subject to the penalties imposed under section 4511. A claim that
       contains or is supported by a fraudulent insurance act as described in this subsection
       is ineligible for payment or benefits under the assigned claims plan.




                                                -3-
       In Candler v Farm Bur Mut Ins Co of Mich, 321 Mich App 772, 779-780; 910 NW2d 666
(2017), this Court explained what constitutes “a fraudulent insurance act” in former MCL
500.3173a(2):

                [A] person commits a fraudulent insurance act under this statute when (1)
       the person presents or causes to be presented an oral or written statement, (2) the
       statement is part of or in support of a claim for no-fault benefits, and (3) the claim
       for benefits was submitted to the MAIPF. Further, (4) the person must have known
       that the statement contained false information, and (5) the statement concerned a
       fact or thing material to the claim. [Id. (footnote omitted)]

For purposes of former MCL 500.3173a(2), a plaintiff’s “claim” refers to the entire claim, not just
the specific PIP benefits sought based on any specific information. Id. at 779-780, 782. See also
former MCL 500.3173a(2) (“A claim that contains or is supported by a fraudulent insurance act as
described in this subsection is ineligible for payment or benefits under the assigned claims plan.”).
Finally, “[a] statement is material if it is reasonably relevant to the insurer’s investigation of a
claim.” Bahri v IDS Prop Casualty Ins Co, 308 Mich App 420, 425; 864 NW2d 609 (2014).

        In this case, plaintiff filled out and signed forms in addition to testifying at a deposition
regarding her income and employment at IHOP. Upon discovery, defendant exposed the falsehood
of those statements in that plaintiff did not work at IHOP at the time of the accident and that she
lied about how much she worked and was paid when she did work at IHOP. Each of these factors
would have affected how much she could have collected in lost wages from defendant.

         Addressing the elements of “a fraudulent insurance act” outlined in Candler, 321 Mich
App at 779-780, first, plaintiff submitted a signed application to the MACP that contained
statements about income that plaintiff was allegedly earning at IHOP at the time of the accident
and she made statements mirroring those statements at her deposition. Consequently, this act alone
fulfilled the first three prongs of the “fraudulent insurance act” test in Candler. See id.

        As for the final two prongs of the test, plaintiff must have known that she resigned from
IHOP before the accident. Furthermore, she also must have known that she was paid $8.50 per
hour, not $9.00 per hour as she claimed, and that she did not actually work from 9:00 a.m. to 6:00
p.m. on a regular basis. Indeed, the employment logs defendant obtained showed that defendant
never worked more than 5.88 hours on a given day from February 6, 2016 to April 10, 2016.
Finally, plaintiff’s false statements would have affected how much she could have recovered in
lost wages. As such, these statements were material. See Bahri, 308 Mich App at 425 (“A
statement is material if it is reasonably relevant to the insurer’s investigation of a claim.”). Thus,
plaintiff committed a fraudulent insurance act when she applied for PIP benefits and made
erroneous statements about her employment at IHOP. See Candler, 321 Mich App at 779-780.

        This case also does not present an issue of credibility because plaintiff offered no proof of
the veracity of her claims in the face of extensive proof of their fiction. Similarly, there is no
genuine issue of material fact whether plaintiff was employed by IHOP at the time of the accident
because no reasonable minds could differ that plaintiff was not employed at IHOP at the time of
the accident, or that plaintiff knowingly and intentionally misstated facts to support her lost wage



                                                 -4-
claims. See Allison, 481 Mich at 425. As such, the trial court erred by denying defendant’s motion
for summary disposition.

                                      III. CONCLUSION

        Plaintiff’s fraudulent insurance act prohibits her from collecting any PIP benefits from
defendant. See Candler, 321 Mich App at 779-780, 782. We reverse the trial court’s order denying
defendant’s motion for summary disposition and remand for the trial court to enter an order of
summary disposition for defendant. We do not retain jurisdiction. Defendant, as the prevailing
party, may tax costs pursuant to MCR 7.219.

                                                            /s/ Christopher M. Murray
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Jonathan Tukel




                                               -5-
