                          STATE OF MICHIGAN

                             COURT OF APPEALS


PERCY BAKER,                                                       FOR PUBLICATION
                                                                   April 5, 2018
               Plaintiff-Appellant,
and

SYNERGY SPINE AND ORTHOPEDIC
SURGERY CENTER,

               Intervening Plaintiff


v                                                                  No. 335931
                                                                   Wayne Circuit Court
EDWARD DARRELL MARSHALL, HERTZ                                     LC No. 15-006433-NI
VEHICLES, LLC, ERNEST BRADFIELD, and
KENDRA BRADFIELD

               Defendants,
and

IDS PROPERTY CASUALTY INSURANCE
COMPANY,

               Defendant-Appellee.


Before: M.J. KELLY, P.J., and JANSEN and METER, JJ.

JANSEN, J. (dissenting)

       I respectfully dissent. In my view, it was unnecessary for defendant, IDS Property
Casualty Insurance Company (IDS), to have pleaded fraud as an affirmative defense, and
therefore, the defense has not been waived. On that basis, I would affirm the trial court’s grant
of summary disposition in favor of IDS.

       Contrary to the majority, I find Stanke v State Farm Mutual Auto Insurance Company,
200 Mich App 307; 503 NW2d 758 (1993) to be on point and persuasive. Because plaintiff’s
fraud prevents her from establishing a prima facie case, fraud need not have been pleaded as an
affirmative defense. Stanke, 200 Mich App at 312. Courts are not bound by what litigants
choose to label their motions, complaints, or other pleadings. Johnston v Livonia, 177 Mich App

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200, 208; 411 NW2d 41 (1989). Rather, it is our duty to consider the gravamen of the pleading
or motion based on a complete reading of the document as a whole. See Stephens v Worden Ins
Agency, LLC, 307 Mich App 220, 229; 859 NW2d 723 (2014). Accordingly, although IDS
referred to plaintiff’s alleged fraud as contractual fraud, it is not. IDS is not arguing that plaintiff
committed fraud when obtaining her insurance policy and therefore, an exclusionary clause
would render that policy void ab initio. Admittedly, if that were the case, the trial court would
have committed error-requiring reversal by granting summary disposition in favor of IDS. See
Shelton v Auto-Owners Ins Co, 318 Mich App 648, 657; 899 NW2d 744 (2017). Rather, the
crux of IDS’s argument is that plaintiff’s injuries are not related to, and actually predate, the
underlying accident in this matter, and therefore, plaintiff is not entitled to recover PIP benefits
from IDS. IDS does not argue that even if all of plaintiff’s claims are taken as true, it is still
excused from liability due to plaintiff’s contractual fraud, i.e., it has an affirmative defense.
Instead, IDS argues that plaintiff is fraudulently misrepresenting the nature and extent of her
physical injuries, and therefore, she cannot succeed on her claim because she cannot successfully
prove her prima facie case. The majority has overlooked that important distinction.

       Based on the foregoing, I would affirm.


                                                               /s/ Kathleen Jansen




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