                        STATE OF MICHIGAN

                          COURT OF APPEALS



DIONTE MOORE,                                            UNPUBLISHED
                                                         October 27, 2016
             Plaintiff/Counter Defendant-
             Appellee,
and

OMEGA PT, L.L.C.,

             Intervening Plaintiff/Counter
             Defendant-Appellee,
and

FIRST NATIONAL REHABILITATION and
GREAT LAKES TRANSPORTATION,

             Intervening Plaintiff.

v                                                        No. 327872
                                                         Wayne Circuit Court
AUTO-OWNERS INSURANCE COMPANY,                           LC No. 14-000264-NF

             Defendant/Counter Plaintiff-
             Appellant.


AAA MEDICAL TRANSPORTATION,

             Plaintiff/Counter Defendant-
             Appellee,

v                                                        No. 327946
                                                         Wayne Circuit Court
AUTO-OWNERS INSURANCE COMPANY,                           LC No. 14-007261-CZ

             Defendant/Counter Plaintiff-
             Appellant.


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


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O’BRIEN, J. (concurring in part and dissenting in part).


        I write separately to express my disagreement with the majority’s conclusion with respect
to Omega PT, L.L.C. In this case, the trial court granted Auto-Owners Insurance Company’s
motion for summary disposition pursuant to MCR 2.116(C)(10), which was premised entirely on
a provision of Dionte Moore’s insurance agreement that prohibited the payment of insurance
benefits in the event that a claim was fraudulent. Omega has not appealed that decision. Yet, the
majority concludes that a question of fact remains with respect to whether Omega’s claim was
fraudulent, essentially granting relief on a cross-appeal that was never filed.1 Had Omega
wished to challenge the trial court’s order granting summary disposition, it certainly could have,
and my analysis may well have been different. But, it did not. Instead, Auto-Owners appealed
the trial court’s decision not to award sanctions despite the fact that, as the majority explains,
sanctions are mandatory when a claim is frivolous. Because the trial court found, as a matter of
law, that Moore’s, Omega’s, and AAA Medical Transportation’s claims were fraudulent,
sanctions are mandatory pursuant to MCR 2.625(A)(2) and MCL 600.2591. Accordingly, I
would reverse and remand with respect to Omega as well.

                                                            /s/ Colleen A. O’Brien




1
  Alternatively, it may be that the majority is treating the fraud and frivolousness inquiries as
entirely separate inquiries. While I agree that, ideally, they should be determined separately, I
am not willing to conclude that a claim that was determined to be fraudulent as a matter of law
could somehow not be frivolous.


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