                            STATE OF MICHIGAN

                            COURT OF APPEALS



TORIANA THOMAS,                                                      UNPUBLISHED
                                                                     August 24, 2017
               Plaintiff-Appellant,

v                                                                    No. 332100
                                                                     Wayne Circuit Court
ALLSTATE PROPERTY & CASUALTY                                         LC No. 14-007797-NI
INSURANCE CO,

               Defendant-Appellee.


Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ.

O’BRIEN, J. (dissenting).

        In my view, reasonable minds could not differ as to whether plaintiff made fraudulent
statements or engaged in fraudulent conduct in connection with the accident or loss at issue in
this case. That standard—whether reasonable minds could differ—is the appropriate standard
under this Court’s decision in Bahri v IDS Prop Cas Ins Co, 308 Mich App 420; 864 NW2d 609
(2014), and we are bound by that rule of law, MCR 7.215(J)(1). Accordingly, I dissent.

        In Bahri, 308 Mich App at 425-426, this Court affirmed a trial court’s opinion and order
granting summary disposition in favor of a defendant based on the application of an insurance
agreement’s anti-fraud provision. In doing so, this Court pointed to discrepancies between
services the plaintiff claimed she needed and services that were actually necessary. Id. For
example, the plaintiff claimed that she needed services from October 1, 2011, to February 29,
2012, but other evidence, i.e., the date of the accident, established that she only needed services
from October 20, 2011, to February 29, 2012. Id. at 425. Similarly, as a second example, the
plaintiff claimed that she needed assistance in “bending, lifting, carrying objects, running
errands, and driving,” but other evidence, i.e., surveillance, established that she was able to
perform those activities without assistance. Id. Consequently, this Court concluded that
“[r]easonable minds could not differ in light of this clear evidence that plaintiff made fraudulent
representations for purposes of recovering . . . benefits.” Id. at 426.

        The same is true in this case. This is because, like in Bahri, the record includes a variety
of discrepancies between services plaintiff claimed she needed and services that were actually
necessary. For example, plaintiff claimed that she needed prescription sunglasses as a result of
the accident, but other evidence, i.e., photographs taken by a private investigator on January 14,
2014, and photographs uploaded to plaintiff’s Facebook page, established otherwise. Similarly,

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as a second example, plaintiff claimed that she needed assistance performing ordinary daily
tasks, but the private investigator’s observations on January 14, 2014, established otherwise.
The majority dismisses these discrepancies as “photographs on a single day of plaintiff going
about her business without her glasses” or “isolated examples of conduct inconsistent with a
claim for benefits,” but those are precisely the type of discrepancies that this Court relied on in
reaching its conclusion in Bahri. “A panel of the Court of Appeals must follow the rule of law
established by a prior published decision of the Court of Appeals issued on or after November 1,
1990, that has not been reversed or modified . . . .” MCR 7.215(J)(1).

          Nevertheless, the majority, relying heavily on this Court’s decision in Shelton v Auto-
Owners Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 328473), concludes
that defendant’s argument “fall[s] well short of resolving the question beyond an issue of
material fact.” While I believe that the facts of this case are significantly more comparable to
those in Bahri, as opposed to those in Shelton, my primary concern with the majority’s
conclusion in this regard is that it alters the rule of law established in Bahri. In Bahri, this Court
held that summary disposition is appropriate where “[r]easonable minds could not differ in light
of . . . clear evidence that plaintiff made fraudulent representations for purposes of recovering . . .
benefits.” Bahri, 308 Mich App at 426. In this case, however, it is my view that the majority
has altered that standard by requiring that fraud be established beyond a question of fact.

        Here, I do not necessarily disagree that defendant failed to establish fraud beyond a
question of fact, but, under Bahri, there has to be an inquiry into the reasonableness of these
questions of fact. For example, plaintiff asserted that she needed prescription eyeglasses during
“daylight” and required assistance performing ordinary daily tasks, but the private investigator’s
observations on January 14, 2014, and the Facebook photographs clearly established otherwise.
While this discrepancy may, in theory, create a question of fact, it is my view that it does not
create a question of fact that reasonable minds could differ on. Therefore, under Bahri, summary
disposition is appropriate.

       In sum, this case requires that this Court determine if reasonable minds could differ as to
whether plaintiff made fraudulent statements or engaged in fraudulent conduct in connection
with the accident or loss at issue. I would conclude that reasonable minds could not. In my
view, plaintiff’s obviously false assertions cannot, reasonably, prevent this conclusion.
Accordingly, I would affirm.



                                                               /s/ Colleen A. O'Brien




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