                          STATE OF MICHIGAN

                             COURT OF APPEALS



PASTOR IDELLA WILLIAMS,                                            UNPUBLISHED
                                                                   February 2, 2016
               Plaintiff-Appellant,

v                                                                  No. 323343
                                                                   Kent Circuit Court
NATIONAL INTERSTATE INSURANCE                                      LC No. 13-002265-NO
COMPANY,

               Defendant-Appellee,

and

STATE FARM CLAIMS, FARMERS
INSURANCE EXCHANGE and STATE FARM
MUTUAL AUTOMOBILE INSURANCE
COMPANY,

               Defendants.


Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

        In this no-fault insurance action, MCL 500.3101 et seq, plaintiff, Pastor Idella Williams,
appeals as of right the trial court’s order granting defendant National Interstate Insurance
Company’s motion for summary disposition pursuant to MCR 2.116(C)(10). Because plaintiff
failed to establish a genuine issue of material fact regarding whether she sustained any bodily
injury arising out of the ownership, operation, maintenance or use of a motor vehicle, we affirm.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        In the early morning on March 15, 2012, plaintiff was a passenger of a Compass Coach
bus when the bus struck a deer. According to plaintiff, she was lying on two seats while sleeping
in the back of the bus at the time, and she fell forward when the bus swerved, hitting her back on
the seat in front of her. Plaintiff went to the emergency department at Mercy Health Saint
Mary’s (Saint Mary’s) that same morning complaining of back pain; the hospital released her the
same day with pain medication. On July 16, 2012, plaintiff filed a claim with National Interstate,
Compass Coach’s insurance carrier, seeking personal protection insurance (“PIP”) benefits.

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Based on some questions raised regarding the proper carrier responsible for such a claim,
plaintiff also filed a claim with defendant State Farm Mutual Automobile Insurance Company1,
contending that she was a resident-relative of her daughter, who owned an automobile insured by
State Farm, and the Michigan assigned claims facility, which assigned defendant Farmers
Insurance Exchange to plaintiff’s claim.

        Acting in propria persona, plaintiff sued National Interstate and State Farm seeking PIP
benefits on March 12, 2013. Plaintiff alleged that she suffered a back injury resulting in lost
wages, medical expenses, and the need for home care services. She sought $5.5 million in
damages. Plaintiff retained counsel on May 13, 2013, and filed an amended complaint on June
13, 2013, adding Farmers as a defendant. On October 29, 2013, the parties stipulated that
National Interstate was the insurer of highest priority, and therefore, State Farm and Farmers
were dismissed from the lawsuit; they are not parties to this appeal.

        At her deposition on March 6, 2014, plaintiff testified that her injuries from the March
15, 2012 bus accident rendered her unable to walk anywhere without a walker and required her
to have daily assistance for ordinary activities. She testified that she got the walker in April of
2012 and used it “all the time,” including when she went to the bathroom, and that she never left
the house without it. She testified that she could drive, but that she had to have the walker when
she left the car. Counsel for National Interstate then played a video for plaintiff, stating that it
was recorded on August 21, 2012. Plaintiff testified that it was her depicted in the video. The
video showed plaintiff getting out of the driver’s seat of a parked car, running across the street
and into the yard of a house, grabbing a large garbage bin, and pushing the bin until she was
halfway back across the street, at which time she turned the bin around and dragged it the rest of
the way across the street and positioned it on the side of the road. She then returned to her car.
Plaintiff was not using a walker or a cane, and she was not limping or showing any signs of pain
or difficulty moving. Plaintiff admitted that the video showed her running after the accident and
that she was able to run. She also admitted that it would have been after the bus incident. When
her own counsel noted that she had “some explaining to do,” plaintiff contended that the video
captured her on a “good day.” But she also admitted, “I do – I do run. I never said that I didn’t.
I do run.”

        Plaintiff’s counsel withdrew six days after the deposition, and plaintiff has proceeded
since that time in propria persona. National Interstate moved for summary disposition,
contending that no genuine issue of material fact existed regarding whether any bodily injury to
plaintiff arose out of the bus incident. At the hearing on National Interstate’s motion, which
occurred after the close of discovery, the trial court granted the motion. The trial court later
denied plaintiff’s motion for reconsideration.




1
  Defendants State Farm Claims and State Farm Mutual Automobile Insurance Company appear
to be the same entity. We refer to both as “State Farm.”


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                                         II. ANALYSIS

        On appeal, plaintiff contends that the trial court erred in granting summary disposition to
National Interstate and dismissing the case. We note at the outset that plaintiff’s brief provides
no law to support her arguments on appeal. Thus, as National Interstate argues, this Court could
consider plaintiff’s arguments abandoned and affirm summary disposition on that ground. See
Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (“[W]here a party fails to
cite any supporting legal authority for its position, the issue is deemed abandoned.”). In any
event, plaintiff’s arguments on appeal lack merit.

        An insurer’s liability for PIP benefits under the no-fault act “is governed by MCL
500.3105.” Detroit Med Ctr v Progressive Mich Ins Co, 302 Mich App 392, 394; 838 NW2d
910 (2013) (citation and quotation marks omitted). “Under personal protection insurance an
insurer is liable to pay benefits for accidental bodily injury arising out of the ownership,
operation, maintenance or use of a motor vehicle as a motor vehicle . . . .” MCL 500.3105(1).
Thus, to be eligible for benefits under MCL 500.3105(1), the benefits must be causally
connected to the injury and the injury must “arise out of” the “ownership, operation, maintenance
or use of a motor vehicle . . . .” Douglas v Allstate Ins Co, 492 Mich 241, 257; 821 NW2d 472
(2012), quoting Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 531; 697 NW2d 895
(2005).

       When moving for summary disposition under MCR 2.116(C)(10), National Interstate had
“the initial burden of supporting its position” that there was no material question of fact
regarding whether plaintiff was injured in the March 15, 2012 incident by producing “affidavits,
depositions, admissions, or other documentary evidence.” Bronson Methodist Hosp v Auto-
Owners Inc Co, 295 Mich App 431, 440; 814 NW2d 670 (2012). Assuming National Interstate
met its obligation, plaintiff, as the party opposing the motion, had the burden to show “by
evidentiary materials that a genuine issue of disputed material fact exists.” Id. at 440-441. “A
question of fact exists when reasonable minds can differ on the conclusions to be drawn from the
evidence.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57
(2009). “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.” Latham v Barton Malow
Co, 480 Mich 105, 111; 746 NW2d 868 (2008).

        In support of its motion for summary disposition, National Interstate attached to its brief
plaintiff’s answers to interrogatories, a transcript of her deposition, a copy of the video that had
been marked as an exhibit at plaintiff’s deposition, and the affidavit of Ken Naffziger, the bus
driver involved in the incident, who averred that, in response to his inquiries after the accident,
none of the passengers reported being injured. National Interstate argued that the video, which
plaintiff admitted depicted her after the incident, “clearly” showed that she had “not been honest
in her deposition or interrogatories with regards to her injuries.” Defendant also noted that in her
answers to interrogatories, plaintiff admitted that she had brought claims for worker’s disability
compensation due to “back issues” in both 1979 and 1999. Thus, defendant sought summary
disposition based on a lack of evidence regarding causation.




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        In defense of the motion, plaintiff argued that Naffziger gave false information in his
affidavit and that he did not ask if everyone was okay after the incident. In terms of documents
to support her opposition to the motion, plaintiff submitted her emergency room medical records
from Saint Mary’s Health Care dated March 15, 2012, wherein she presented with back pain
soon after the bus incident. During her visit, she reported a history of chronic back pain, chronic
neck pain, back surgery in 1980, and noted that she was disabled. She was treated
symptomatically and discharged. She also produced a March 29, 2012 medical record indicating
that plans were made for a lumbar spine x-ray and thoracic spine x-ray due to her complaints of
back and right leg pain. In lieu of any other medical records, plaintiff attached two unsigned,
typed letters, purportedly from Mercy Health Physician Partners and addressed to: “To whom it
may concern.” The letter dated August 16, 2013, indicated that plaintiff was “being treated for
neck pain and lumbrosacral radiculopathy since the motor vehicle accident she was in last year.
These diagnoses are a direct result of that accident. and [sic] she has not been able to continue
employment due to the accident since March 15, 2012. she [sic] is currently in chronic pain and
uses a wheeled walker for ambulation.” The second letter, dated September 26, 2013, indicated
that plaintiff has a “history of Degenerative Disc Disease of the Lumbosacral Spine, Lumbar
Facet Arthropathy and Thoracic Back Pain. She’s been under my care since 3.15.12 until
today.”2 Although the letter indicated that plaintiff was under physical restrictions and needed
assistance with certain tasks, it did not identify the cause of plaintiff’s injuries. Plaintiff
submitted no medical billing records or other evidence.

        Upon review of the record in a light most favorable to plaintiff, we conclude that the trial
court properly granted summary disposition to National Interstate based on a plaintiff’s failure to
establish a material question of fact for the jury regarding causation. See Douglas, 492 Mich at
257. Although there is evidence that plaintiff sought treatment for back pain following the bus
incident, plaintiff has not proffered any substantively admissible evidence to support a finding
beyond speculation or conjecture that any alleged injuries arose out of the accident. The closest
she comes to doing so is the letter of August 16, 2013; however, it contains only a conclusory
statement regarding causation with no factual basis in support of such contention. No other
evidence supports plaintiff’s allegation regarding causation. As such, plaintiff has failed to
establish that a material question of fact exists regarding whether the March 15, 2012 incident
caused her to suffer an injury or aggravated an existing injury. See Quinto v Cross and Peters
Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996).

        Moreover, all evidence in the record suggesting that the March 15, 2012 incident injured
plaintiff or aggravated an existing injury, thereby requiring the type of care and attendant
services alleged by plaintiff, is directly contradicted by the video and plaintiff’s own testimony.
Plaintiff’s deposition testimony—which was the only evidence of the alleged injury—consisted
of self-serving claims that she was unable to walk without the assistance of a walker, and that she
used the walker wherever she went. In stark contrast, the video shows plaintiff—after the March


2
  It is questionable whether the letters plaintiff attached to her brief in opposition to summary
disposition qualify as “documentary evidence” for purposes of MCR 2.116(C)(10). They are not
medical records, they are not affidavits, and they are not signed by anyone.


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15, 2012 incident—running from her automobile and across a street. It then shows her pushing
and pulling a garbage bin across the street. It shows plaintiff moving without trouble and
without a walker. Plaintiff testified that the video showed her doing these things and she
testified that she could run after the March 15, 2012 incident. Furthermore, plaintiff stated at the
June 30, 2014 hearing that she needed the walker for a heart condition rather than because of an
injury caused by the March 15, 2012 incident. Because of the video, plaintiff’s own testimony,
and her statement at the June 30, 2014 hearing, reasonable minds could conclude only that
plaintiff failed to show that the March 15, 2012 incident caused her to suffer an injury or
aggravated an injury. See 1300 LaFayette East Coop, Inc, 284 Mich App at 525. See also Scott
v Harris, 550 US 372, 380; 127 S Ct 1769; 167 L Ed 2d 686 (2007) (finding no genuine issue of
material fact where the plaintiff’s self-serving deposition testimony—which was the plaintiff’s
only evidence of discrimination in a case alleging the same—was “blatantly contradicted by the
record so that no reasonable jury could believe it.”).

        Plaintiff argues that she was able to run after the March 15, 2012 incident only because of
medication and therapy. But, there is absolutely no evidence in the record to support this
assertion. And, returning to our reason for affirming the trial court’s decision—causation—
plaintiff fails to explain, even if there were any evidence in support of that assertion, how that
evidence would create a question of fact as to whether the March 15, 2012 incident injured her.
Whether plaintiff took medication or had therapy to alleviate her back pain does not address
whether that pain was caused by the March 15, 2012 incident. See Douglas, 492 Mich at 257.
Because plaintiff failed to establish a question of fact as to whether the March 15, 2012 incident
caused her injury or aggravated an injury, the trial court properly granted National Interstate
summary disposition. Id.; Latham, 480 Mich at 111.

       Plaintiff also argues that the video that the trial court watched was manipulated to make it
appear that she was running. This argument is utterly without factual basis and is nothing but
speculation, which cannot defeat summary disposition. Libralter Plastics, Inc v Chubb Group of
Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993). Next, plaintiff abandoned her
argument that the trial court erred in finding that she received compensation for replacement
services because the trial court did not make such a finding, it did not address the issue of
whether she had been compensated for replacement services, and plaintiff provides no
explanation as to why such a finding would be relevant to her appeal. Etefia v Credit
Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). Additionally, plaintiff’s
argument that she was not provided with the video until after summary disposition was granted is
contradicted by evidence on the record proving that she watched the video at her deposition and
that she was provided with a copy of it when served with National Interstate’s motion for
summary disposition on May 22, 2014. Therefore, plaintiff has not established plain error in that
regard. Richard v Schneiderman & Sherman, PC (On Remand), 297 Mich App 271, 273; 824
NW2d 573 (2012).

        Finally, the trial court did not err when it prevented plaintiff from calling a witness at the
June 30, 2014 hearing. Setting aside for now the procedural irregularity of having a witness
testify at a summary disposition hearing, there is no evidence that the witness whom plaintiff
wanted to call was on a witness list that plaintiff submitted before discovery closed.
Furthermore, there is no indication at all as to the identity of that witness. Moreover, plaintiff


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has failed to make any argument as to how the trial court’s refusal to allow the witness to testify
had any effect on the outcome of this case.

       Affirmed.



                                                            /s/ Jane M. Beckering
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Michael J. Kelly




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