                           STATE OF MICHIGAN

                            COURT OF APPEALS



EMMANUEL MCCUNE, JR.,                                                UNPUBLISHED
                                                                     January 8, 2019
               Plaintiff-Appellant,

and

NORTHLAND RADIOLOGY, INC.,
EXCELLENT PAIN CONSULTANTS, INC., and
EVOKE MEDICAL SERVICES, INC.,

               Intervening Plaintiffs,

v                                                                    No. 340476
                                                                     Wayne Circuit Court
ALLSTATE INSURANCE COMPANY,                                          LC No. 16-006823-NF

               Defendant-Appellee.


Before: MURRAY, C.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

       In this action for personal protection insurance (PIP) benefits under the no-fault act, MCL
500.3101 et seq., plaintiff1 appeals as of right the trial court’s orders granting defendant’s motion
for summary disposition, and denying his motion for reconsideration. We affirm.

                           I. FACTS AND PROCEDURAL HISTORY

        On November 4, 2015,2 plaintiff was hit by a vehicle while riding his bicycle. As
plaintiff had no automobile insurance and could not identify the driver of the vehicle, he filed an
application for PIP benefits with the Michigan Automobile Insurance Placement Facility
(MAIPF) on November 30, 2015, and his claim was assigned to defendant through the Michigan


1
 The intervening plaintiffs are not parties to this appeal. We refer to Emmanuel McCune, Jr.
only as plaintiff throughout this opinion.
2
  Plaintiff’s application for PIP benefits lists the accident date as November 6, but his complaint
as well as the EMS and State of Michigan traffic crash reports list November 4, 2015.


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Assigned Claims Plan (MACP). When defendant refused to pay the benefits requested, plaintiff
filed the instant action on May 31, 2016, claiming that he suffered bodily injury in the November
2015 accident and was entitled to payment for all necessary medical and hospital expenses.

        Defendant subsequently moved for summary disposition of plaintiff’s complaint pursuant
to MCR 2.116(C)(10), asserting that plaintiff was ineligible for benefits under MCL 500.3173a,
the no-fault provision that governs claims made to the MAIPF, because he committed multiple
fraudulent insurance acts in support of his claim. In response, plaintiff argued that to be
successful on its motion for summary disposition, defendant had to demonstrate both knowledge
and an intent to defraud, which it failed to do. Specifically, he asserted that the inconsistencies
alleged were minor and immaterial to his claim for benefits, and that defendant did not
detrimentally rely on the inconsistent statements. Ultimately, the trial court granted defendant’s
motion for summary disposition and dismissed plaintiff’s complaint, determining that he
committed multiple fraudulent insurance acts contrary to MCL 500.3173a(2) because it was
undisputed that: (1) he failed to disclose preexisting injuries from a prior bus accident in his
application for benefits, (2) his description of the November 2015 accident to his doctor and at
his deposition did not comport with the EMS and traffic crash reports, or the testimony of his
caretaker, (3) Facebook posts contradicted the disabilities he allegedly faced as a result of the
injuries sustained in the accident, and (4) he provided an incorrect home address at his
deposition. Plaintiff then filed a motion for reconsideration, which the trial court also denied.

                                         II. ANALYSIS

         “We review a trial court’s decision on a motion for summary disposition under MCR
2.116(C)(10) de novo.” Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 777;
910 NW2d 666 (2017). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a
complaint. Id. “In evaluating a motion for summary disposition brought under this subsection, a
trial court considers affidavits, pleadings, depositions, and admissions, and other evidence
submitted by the parties in the light most favorable to the party opposing the motion.” Id.
(quotation marks and citations omitted). “ ‘The moving party has the initial burden of supporting
its position with documentary evidence, but once the moving party meets its burden, the burden
shifts to the nonmoving party to establish that a genuine issue of disputed fact exists.’ ” McNeill-
Marks v MidMichigan Med Ctr-Gratiot, 316 Mich App 1, 15; 891 NW2d 528 (2016) (citation
omitted); see also MCR 2.116(G)(4). “A genuine issue of material fact exists when, viewing the
evidence in a light most favorable to the nonmoving party, the record which might be developed
. . . would leave open an issue upon which reasonable minds might differ.” Bonner v City of
Brighton, 495 Mich 209, 220; 848 NW2d 380 (2014) (quotation marks and citation omitted).
Questions of statutory interpretation are also reviewed de novo. Candler, 321 Mich App at 777.

        We hold that the trial court did not err when it granted defendant’s motion for summary
disposition. From the evidence presented, no reasonable jury could conclude that the inaccurate




                                                -2-
and inconsistent statements plaintiff made in support of his claim for benefits amounted to
anything other than fraudulent insurance acts under MCL 500.3173a(2).3

         MCL 500.3173a provides:

                  (1) The [MAIPF] shall make an initial determination of a claimant's
         eligibility for benefits under the assigned claims plan and shall deny an obviously
         ineligible claim. The claimant shall be notified promptly in writing of the denial
         and the reasons for the denial.

                 (2) 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 [MAIPF] 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 [MCL 500.4503] that is subject to the
         penalties imposed under [MCL 500.4511]. 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.

        Although the plain language of MCL 500.3173a contains no element of intent, plaintiff
cites the statute’s reference to MCL 500.4503, as well as the elements of fraud as set forth in
Foreman v Foreman, 266 Mich App 132, 141; 701 NW2d 167 (2005),4 to argue that defendant
had to demonstrate both knowledge and an intent to defraud for his claim of benefits to be
ineligible under MCL 500.3173a(2). MCL 500.4503 lists acts which, if performed with
knowledge and the intent to defraud, constitute fraudulent insurance acts.5 However, this


3
  As a result, the trial court also did not abuse its discretion in denying plaintiff’s motion for
reconsideration.
4
  Foreman, 266 Mich App at 141 states, “To establish a claim of fraudulent misrepresentation,
plaintiff was required to prove that: (1) defendant made a material representation; (2) the
representation was false; (3) defendant knew, or should have known, that the representation was
false when making it; (4) defendant made the representation with the intent that plaintiff rely on
it; (5) and plaintiff acted on the representation, incurring damages as a result.”
5
    For example, MCL 500.4503(a) provides:
                A fraudulent insurance act includes, but is not limited to, acts or omissions
         committed by any person who knowingly, and with an intent to injure, defraud, or
         deceive:

                  (a) Presents, causes to be presented, or prepares with knowledge or belief
         that it will be presented to or by an insurer or any agent of an insurer, or any agent
         of an insurer, reinsurer, or broker any oral or written statement knowing that the
         statement contains any false information concerning any fact material to an
         application for the issuance of an insurance policy.



                                                  -3-
element of intent is not incorporated into MCL 500.3173a simply by virtue of the statute’s
reference to MCL 500.4503. Rather, MCL 500.3173a(2) only references MCL 500.4503 to
indicate that an individual may also commit a fraudulent insurance act if he or she fulfills the
requirements stated, i.e., presents a statement in support of a claim to the MAIPF knowing the
statement contains false information material to the claim. The plain language of MCL 500.4503
supports this conclusion, as it explicitly states that “[a] fraudulent insurance act includes, but is
not limited to” those acts mentioned in the statute. Additionally, the elements of fraud as set
forth in Foreman, 266 Mich App at 141, are inapplicable here. That case involved fraudulent
misrepresentation in a divorce action, id. at 134, not a fraudulent insurance act under MCL
500.3173a(2).

       Indeed, this Court recently clarified that a person commits a fraudulent insurance act
under MCL 500.3173a(2)

       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. [Candler, 321 Mich
       App at 779-780.]

Additionally, “MCL 500.3173a(2) does not require that any particular recipient have received the
false statement in order for the act to qualify as a fraudulent insurance act, as long as the
statement was used ‘as part of or in support of a claim to the [MAIPF].’ ” Id. at 780 (alteration
in original).

        The evidence defendant presented with its motion for summary disposition demonstrates
that plaintiff made multiple statements that he knew contained false information in support of his
claim for PIP benefits. First, plaintiff knowingly misrepresented the circumstances of the
November 2015 accident itself. At his deposition, plaintiff testified that he never saw the vehicle
involved, lost consciousness when struck, and remained on the ground until the ambulance
arrived at the scene.6 Similarly, according to the consultation notes of the doctor from whom
plaintiff sought treatment after the accident, plaintiff indicated that he lost consciousness and
awoke in the hospital. Yet the EMS and State of Michigan traffic crash reports, as well as the
testimony of William Thomas, plaintiff’s supposed caregiver, directly contradict plaintiff’s
statements. The EMS report, for example, states that plaintiff walked home following the
accident and dialed 911 from his residence, while the traffic crash report provides that plaintiff
walked home from the accident where he was met by medics, and was able to describe the
vehicle that struck him. Further, Thomas testified at his deposition that he lived with plaintiff in
November 2015, and that on the day of the accident, he was sitting on the porch when plaintiff
came down the street limping. It was Thomas’s stepdaughter that dialed 911.


6
  Further, when asked if EMS definitely picked him up from the scene, plaintiff said, “I think
so,” and when asked if he was unable to walk home after the accident, plaintiff said, “I think,
yes.”


                                                -4-
        Plaintiff asserts that he just could not remember where EMS picked him up and, thus,
“the Trial Court erred in simply concluding that this was evidence that [he] was being dishonest
instead of recognizing that there was a question of fact.” But on the basis of the evidence
described above, no reasonable jury could conclude that plaintiff was simply mistaken regarding
his actions after the accident. He clearly stated, to his doctor and at his deposition, that he was
knocked unconscious and unable to walk home after the accident, when the reports and witness
testimony indicate the opposite. Nor do we find merit in plaintiff’s argument that the EMS pick-
up location is immaterial to his claim for benefits. His false statements relate not just to the
location of the ambulance, but to the severity of the accident and the injuries he suffered as a
result, facts which are essential to the investigation of any claim of benefits and to a
determination regarding the probity of any medical expenses requested. See Bahri v IDS Prop
Cas Ins Co, 308 Mich App 420, 425; 864 NW2d 609 (2014) (“A statement is material if it is
reasonably relevant to the insurer’s investigation of a claim.”) (quotation marks and citation
omitted).7

        Similarly, plaintiff knowingly omitted information regarding preexisting injuries in his
application for benefits, which may have impeded defendant’s investigation of plaintiff’s claim.
In plaintiff’s application for benefits to the MACP, he checked the box “Not Applicable” in
response to the question “Had you sought treatment for any prior conditions before this
accident?” However, at his deposition, plaintiff acknowledged injuring his back and right leg in
March 2014, when a bus he was riding on “smacked into” something.

        Plaintiff argues that the failure to acknowledge his injuries from the March 2014 bus
accident in his application for benefits was a simple mistake, but the evidence presented
overwhelmingly supported the trial court’s finding that he knowingly excluded this information.
Medical records from 2014 attached to defendant’s motion for summary disposition show that
plaintiff sought substantial treatment for these injuries. And plaintiff filed for Social Security
Disability as a result of his injuries.8 Thus, the evidence demonstrates that the prior accident
greatly impacted plaintiff’s life, and no reasonable jury could conclude that it was mistakenly
excluded from his application for benefits. Moreover, the information was material to plaintiff’s
claim for benefits, especially considering that he suffered back injuries in both accidents.

       Plaintiff’s argument that defendant could not have detrimentally relied on his inaccurate
statement in the application for benefits because he disclosed the 2014 accident throughout


7
  We recognize that Bahri involved a claim for benefits under an insurance policy containing a
fraud exclusion provision, Bahri, 308 Mich App at 423-426, and not a claim for benefits to the
MAIPF under MCL 500.3173a, but see no reason why the Bahri Court’s definition of materiality
should not apply in this context.
8
  Defendant also alleged in its motion for summary disposition that plaintiff was involved in a
lawsuit related to the bus accident, which he denied at his deposition, but failed to attach the
Register of Actions it included with its brief on appeal to the motion below. However, the trial
court found that plaintiff had another lawsuit pending related to the 2014 accident, and plaintiff
does not challenge this finding on appeal.


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discovery, also fails. MCL 500.3173a(2) does not require that an insurance provider
detrimentally rely on a claimant’s false statements. See Candler, 321 Mich App at 779-780.

         Because we have concluded that plaintiff’s misrepresentations regarding the
circumstances of the accident and his preexisting injuries constitute fraudulent insurance acts,
and no reasonable jury could conclude otherwise, we need not address the trial court’s
conclusions with regard to plaintiff’s address or the disabilities he allegedly suffered as a result
of the November 2015 accident. Plaintiff is ineligible for benefits under MCL 500.3173a, and
the trial court properly granted summary disposition. Affirmed.



                                                             /s/ Christopher M. Murray
                                                             /s/ Michael J. Riordan




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