                            STATE OF MICHIGAN

                            COURT OF APPEALS



SHRITA PARKER,                                                       UNPUBLISHED
                                                                     September 12, 2017
               Plaintiff-Appellant,

v                                                                    No. 332461
                                                                     Wayne Circuit Court
                                                                     LC No. 14-000942-NI
JOHN DOE,

               Defendant,
and

PROGRESSIVE MARATHON INSURANCE
COMPANY,

               Defendant-Appellee.


Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

        Plaintiff Shrita Parker appeals as of right the order of the trial court dismissing the final
claim in this case, but challenges the trial court’s earlier order granting summary disposition of
her claim for uninsured motorist benefits in favor of defendant Progressive Marathon Insurance
Company (Progressive), and the trial court’s order denying her motion in limine. We affirm.

                                             I. FACTS

        This case arises from a motor vehicle accident that occurred on February 8, 2013, in
Canton, Michigan. According to plaintiff, she was driving to work that day when another
vehicle merged into her lane and sideswiped her car, causing her to lose control of her car, drive
off the road, and hit a pole. The driver of the other vehicle, referred to here as defendant John
Doe, was never identified.

        Canton police officer Jeffrey Seifert responded to the scene of the accident and filed a
police report. During his deposition, Seifert testified that he “vaguely” recalled the accident
independently of his report, but had reviewed the report prior to his deposition. Seifert testified
that while at the scene of the accident plaintiff had described the accident to him and had
indicated that she had been cut off by a merging car with an unidentified driver. According to
Seifert, plaintiff was unsure whether the John Doe vehicle actually struck her car. Asked if he
                                                -1-
recalled what plaintiff said independent of his report, Seifert responded “only what I wrote in the
narrative, which was she was uncertain if contact had been made.” Seifert also testified during
his deposition that he saw no damage to plaintiff’s car that would indicate that another car had
hit plaintiff’s car. He testified that his report indicated that it was a single-car accident and that
he would have written the report differently if the accident had involved a second car.

       Plaintiff had a no-fault insurance policy issued by defendant Progressive. The “uninsured
motor vehicle” provision of the policy provides that Progressive is obligated to pay plaintiff
uninsured motorist coverage if she sustained a serious impairment of body function in an
accident arising from the ownership, operation, maintenance, or use of a motor vehicle, in which
an unidentified motor vehicle strikes plaintiff or her vehicle. Plaintiff does not dispute that the
uninsured motor vehicle provision of the policy provides coverage in this case only if the vehicle
driven by John Doe actually struck her car. Based on this provision, Progressive denied
coverage for plaintiff’s claim contending that there was no evidence that the John Doe vehicle
struck plaintiff’s car. Plaintiff thereafter filed this action1 seeking coverage under the uninsured
motorist provision of the policy.

        Before the trial court, plaintiff filed a motion in limine seeking to exclude from evidence
(1) Seifert’s testimony regarding any statement that plaintiff allegedly made to him on the day of
the accident, and (2) the officer’s opinion as to whether the John Doe vehicle struck plaintiff’s
vehicle. Meanwhile, Progressive filed a motion for summary disposition pursuant to MCR
2.116(C)(8) and (10), contending that plaintiff had failed to present any credible evidence that
the John Doe vehicle struck plaintiff’s vehicle.

         The trial court denied plaintiff’s motion in limine and ruled that Seifert could testify at
trial regarding plaintiff’s statements to him on the day of the accident and his observations at the
scene of the accident. The trial court then granted Progressive’s motion for summary
disposition, finding that no reasonable juror could find that the two vehicles made contact in light
of plaintiff’s vague testimony, the officer’s testimony that the vehicles did not make contact, and
photographs of plaintiff’s vehicle showing little or no damage in the area allegedly struck by the
John Doe vehicle. The trial court thereafter denied plaintiff’s motion for reconsideration and
later entered the final order dismissing the remaining claim against defendant John Doe, from
which plaintiff now claims an appeal. 2




1
  Plaintiff also filed a suit against defendant John Doe and the trial court consolidated the two
cases under the lower court docket number of this action.
2
   Plaintiff initially sought leave to appeal from the non-final order of the trial court granting
summary disposition in the consolidated cases before the trial court, resulting in two separately
docketed appeals before this Court (Docket Nos. 329771 and 329956). After this appeal was
filed from the trial court’s final order, this Court on its own motion consolidated the two earlier
appeals with this appeal. Shrita Parker v John Doe, order of the Court of Appeals, issued May
10, 2016 (Docket No. 329771). Thereafter, upon stipulation of the parties, the appeals were
disconsolidated and the appeals in Docket Nos. 329771 and 329956 were dismissed, Shrita


                                                 -2-
                                        II. DISCUSSION

                                    A. MOTION IN LIMINE

       Plaintiff contends that the trial court erred in denying plaintiff’s motion in limine because
(1) Seifert’s testimony regarding plaintiff’s alleged statement on the day of the accident was
hearsay and therefore inadmissible pursuant to MRE 802, and (2) Seifert’s opinion testimony
about whether the two vehicles collided was inadmissible opinion testimony. We disagree.

        This Court reviews a trial court’s decision on a motion in limine for an abuse of
discretion. Bellevue Ventures, Inc v Morang-Kelly Investment, Inc, 302 Mich App 59, 63; 836
NW2d 898 (2013). An abuse of discretion occurs when the trial court’s decision results in an
outcome falling outside the range of principled outcomes. Woodard v Custer, 476 Mich App
545, 557; 719 NW2d 842 (2006).

         Hearsay is defined by MRE 801(c) as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Pursuant to MRE 802, “[h]earsay is not admissible except as provided by these
rules.” MRE 801(d), however, identifies certain statements that are not hearsay. Keywell &
Rosenfeld v Bithell, 254 Mich App 300, 334; 657 NW2d 759 (2003). Specifically, MRE
801(d)(2) provides that a statement is not hearsay, and therefore not excludable under MRE 802,
if “[t]he statement is offered against a party and is (A) the party’s own statement.”

        In this case, Seifert testified during his deposition that he had a vague independent
recollection of responding to the accident and that he had refreshed his memory with his police
report. At the request of defense counsel, Seifert read from his report the following narrative,
and testified as follows:

       A:      Vehicle number 1, 2006 Chevrolet Malibu driven by Parker. Stated she
       was in the second lane from left curb. A vehicle directly to her right changed
       lanes into her path causing her to slow and change lanes to avoid contact. Parker
       was uncertain if the vehicle contacted hers or not. She began to spin to her
       right and went up and over the curb striking a power pole along the driver’s side
       rear quarter panel and rear door. Impact pushed the rear fender onto the tire
       preventing it from being driven. . . . . Rear bumper cracked in center. Molding
       along passenger side running along the bottom loosened. Pole intact. (emphasis
       added)

                                              ***

       Q:     Independent of this report, do you recall if Ms. Parker actually stated that
       there was – if there was contact between the two vehicles?



Parker v John Doe, order of the Court of Appeals, issued July 20, 2016 (Docket Nos. 329771,
329956, 332461), leaving this appeal as the sole appeal before this Court in this case.


                                                -3-
       A:     Only what I wrote in the narrative, which was she was uncertain if contact
       had been made.

        The statement that plaintiff sought to exclude as hearsay was her own statement to Seifert
at the scene of the accident. Because this statement is said to be plaintiff’s own statement and
was offered against plaintiff, it is not hearsay pursuant to MRE 801(d)(2), and is therefore
admissible.

        Plaintiff argues, however, that her statement is hearsay because Seifert testified that he
did not have an independent recollection of the statement apart from the police report, and
therefore any testimony he could give about a statement made by plaintiff at the accident scene is
merely a statement from the police report and not truly a statement by plaintiff. The recollection
of a witness may be refreshed using a writing, such as a police report. See Genna v Jackson, 286
Mich App 413, 423; 781 NW2d 124 (2009); see also MRE 612. When a witness’s recollection is
refreshed with a writing, the writing used for that purpose is not substantive evidence but is
instead used simply to trigger the recollection of the witness; the recollection is the substantive
evidence and not the report or other material used. People v Favors, 121 Mich App 98, 109; 328
NW2d 585 (1983). To refresh the recollection of a witness with a writing, a proper foundation
must be laid. Genna, 286 Mich App at 423. A proper foundation is made upon a showing that
(1) the witness’s present memory is inadequate, (2) the writing could refresh the witness’s
present memory, and (3) reference to the writing actually does refresh the present memory of the
witness. Id.

        A review of the record in this case demonstrates that the foundation was established. At
the beginning of his deposition, Seifert testified that he had only a vague independent
recollection of responding to the accident scene, thereby establishing that his present memory
was inadequate. Seifert stated that he had read the report, and that his recollection was
essentially limited to what was in the report, thereby establishing that the report had the potential
to refresh his present memory. Plaintiff’s argument relates to the third factor, in that she
suggests that Seifert’s present memory was never refreshed by the report, at least not with regard
to plaintiff’s statement that she was unsure about whether the John Doe vehicle hit her vehicle.
In that regard, Seifert testified in response to questioning:

       Q:     Independent of this report, do you recall if Ms. Parker actually stated that
       there was – if there was contact between the two vehicles?

       A:     Only what I wrote in the narrative, which was she was uncertain if contact
       had been made.

        This exchange indicates that the writing did in fact refresh Seifert’s memory to the extent
of the information contained in the report. That being the case, the trial court’s decision to admit
the testimony was not an abuse of discretion.

        Plaintiff next contends that the trial court erroneously admitted Seifert’s opinion
testimony about whether the two vehicles collided. In response to plaintiff’s motion in limine,
the trial court ruled that Seifert could testify regarding what he observed when he responded to
the accident scene, including his observations regarding whether the car was damaged and why

                                                -4-
he made his report as he did. During his deposition, Seifert testified regarding the accident, in
relevant part:

       Q:     Okay. Do you know if there was any contact between that vehicle and
       Ms. Parker’s vehicle?

       A:     I didn’t see any indication of any kind of contact.

                                              ***

       Q:     All right. One unit; correct?

       A:     One unit listed [in the police report], correct.

       Q      . . . . You did not identify this [in the police report] as a hit-and-run
       accident; correct?

       A:     I did not.

       Q:     Okay. You’ve identified this as a one-vehicle accident; correct?

       A:     That’s correct.

       Q:     Okay. If there was any evidence of contact made between two vehicles,
       would you list number of units as two or one?

       A:     I would list it as two and list the other vehicle if unknown as unknown.

       Q:     Okay.    And you would also probably indicate a hit-and-run; is that
       correct?

       A:     That’s correct.

       Q:     All right. “Crash type 10, other, unknown,” what does that mean?

                                              ***

       A:      There’s listings of rear-end accident, side accident, side-angle accident.
       This is listed as “Other” because of the situation where the vehicle lost control
       and went up over the roadway. There’s not a specified diagram for that particular
       style of accident. So “Other” would be the category that you would use.

                                              ***

       Q:     Okay. Now, it says relation to the roadway, what does that mean?

       A:     “Relation to roadway” says the actual impact or the damage to the vehicle
       occurred outside of the shoulder, or the curb, meaning the vehicle had traveled
       from the roadway over the curb and struck a solid object, which was a pole.

                                                -5-
Q:    Now, if there was any evidence that the vehicle – that there was – if there
was any evidence that two vehicles made contact, would that relation to the
roadway would that change at all?

A:     That would change.

Q:     What would that be?

A:     It would be listed probably as sideswipe, same direction.

                                      ***

Q:     “Action prior, avoiding vehicle front, back,” what does that mean?

A:      It means she [plaintiff] reported that a vehicle had entered her lane from
her right side and she was avoiding that vehicle.

Q:     Okay. So you just testified that she stated that a vehicle entered her lane
from the right?

A:     Correct. From the passenger side.

Q:      Okay. If that’s the case, would you expect – and if, in fact, there was a
contact between the vehicles, would you expect the damage to be on the right side
of the vehicle?

A:     I would expect that.

Q:     Was there damage to the right side of the vehicle?

A:     Not that I recall observing.

Q:     And you would have done a complete investigation of this?

A:      If there would have been damage along the passenger side, it would have
been noted in the report and, therefore, the report would have been listed as
different than what it was, which was “Other” for crash type and would have been
listed as sideswipe, same.

Q:      And then the location of greatest damage and first impact that would also
be different; correct?

A:     That would be different as well, correct.

                                      ***

Q:     And you also gave us a diagram [in the report]. Did you prepare that?

A:     I did.

                                        -6-
                                             ***

       Q:     Okay. This diagram does not show any collision or any impact between
       the two vehicles; correct?

       A:     It does not.

                                             ***

       Q:     Is it your testimony that there was no contact between the two vehicles?

                                             ***

       A:     There was nothing that was indicated that showed contact prior to the
       vehicle losing control.

       Q:     Independent of this report, do you recall if Ms. Parker actually stated that
       there was – if there was contact between the two vehicles?

       A:     Only what I wrote in the narrative, which was she was uncertain if contact
       had been made.

       Q:    Okay. Hypothetically, if there was contact between the two vehicles,
       where would that contact have been?

       A:      If it would have been between a vehicle changing lanes directly into hers,
       it could possibly be located on the front passenger side of the vehicle, which
       would be the front quarter panel along the bumper.

       Q:    Okay. Again, and you investigated the – or you looked at the vehicle for
       damage, Ms. Parker’s vehicle for damage, when you appeared to the scene?

       A:      That would be part of the course to do so. I didn’t indicate in the narrative
       whether or not I observed anything, but normally if I would have observed
       something I would have included it in there to document this was one of the
       actions prior.

       Q:     You do not believe this was a hit-and-run type accident?

       A:     No.

       Any witness is qualified to testify regarding the witness’s own observations and opinions
formed as a result of those observations. Lamson v Martin (After Remand), 216 Mich App 452,
459; 549 NW2d 878 (1996). Lay opinion testimony is permitted by MRE 701 as follows:

       If the witness is not testifying as an expert, the witness’ testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.
                                                -7-
        This Court has liberally applied MRE 701 to enable the trier of fact to develop a clearer
understanding of the facts. People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988), mod
on other grounds 433 Mich 862 (1989). In this case, it cannot be said that Seifert’s opinions or
inferences were not rationally based upon his perceptions, nor can it be said that his testimony
was not helpful to a clear understanding of his testimony or the determination of a fact in issue.
The trial court therefore did not abuse its discretion in permitting the lay testimony of the witness
and denying plaintiff’s motion in limine.

                                 B. SUMMARY DISPOSITION

        Plaintiff next contends that the trial court erred in granting Progressive’s motion for
summary disposition. Again, we disagree. Progressive moved for summary disposition pursuant
to both MCR 2.116 (C)(8) and (10), and the trial court did not specify under which section it was
deciding the motion. When, as here, the trial court considers documents outside of the pleadings
in determining the motion, however, this Court will consider the motion as having been decided
pursuant to MCR 2.116(C)(10). See Hughes v Region VII Area Agency on Aging, 277 Mich App
268, 273; 744 NW2d 10 (2007).

        A trial court’s decision on a motion for summary disposition is reviewed de novo.
Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013).
Summary disposition pursuant to MCR 2.116(C)(10) is warranted if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing a motion for summary
disposition pursuant to MCR 2.116(C)(10), this Court considers any affidavits, pleadings,
depositions, admissions, or other documentary evidence submitted by the parties in the light
most favorable to the non-moving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547
NW2d 314 (1996). The moving party initially has the burden of supporting its position by
affidavits, depositions, admissions, or other documentary evidence. The burden then shifts to the
party opposing the motion to show by evidentiary material that a genuine issue of disputed
material fact exists. Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 440-
441; 814 NW2d 670 (2012). A genuine issue of material fact exists when, giving the benefit of
reasonable doubt to the non-moving party, the record leaves open an issue upon which
reasonable minds could differ. Id.

         Progressive moved for summary disposition on the ground that there was no evidence to
support plaintiff’s contention that plaintiff’s vehicle was actually struck by the John Doe vehicle.
As the moving party, Progressive initially had the burden of supporting its position with
documentary evidence. It did so by presenting the deposition testimony of Officer Seifert who
testified that (1) at the accident scene plaintiff told him that she was unsure if the John Doe
vehicle had hit her vehicle, and that (2) the condition of plaintiff’s car indicated that the John
Doe vehicle did not hit plaintiff’s car. Progressive also offered photographs of plaintiff’s vehicle
showing little, if any, damage to the area in question. The burden then shifted to plaintiff to
produce evidence that a genuine issue of disputed material fact existed. Plaintiff’s only offering,
however, was her own affidavit and deposition testimony that she believed that her vehicle
collided with the John Doe vehicle. During her deposition, plaintiff testified in relevant part:



                                                -8-
       Q:     [The t]wo cars did come together, correct?

       A:     From my impression, yes.

       Q:     Was there damage to the rear end of your vehicle after the impact?

       A:     Yes.

       Q:     Was there damage to any other part of your vehicle?

       A:     The front.

       Q:     The front and rear. Okay. The front-end impact, that was not with
       another vehicle though, is that right?

       A:     The driver like swiped me across here. (Indicating)

       Q:     Okay. We can’t really know what you’re talking about on the record. If
       you could describe it in words.

       A:      I’m sorry. I’m kind of a visual learner so I see everything in pictures. So,
       I was just driving down the road, and the car was merging into my lane and I
       think, you know, swiped me. I don’t know at what area exactly, and towards the
       front of my car. But I do remember feeling that jolt. And then it just – after that,
       everything is kind of a big scary crying for Jesus blood.

       Q:     Was the car merging from your right or the left?

       A:     On the passenger side.

       Q:     And you felt an impact?

       A:     More of like a swipe, that’s the best way I can remember to describe it.

When asked during her deposition what she told police at the time of the accident, plaintiff
testified:

       “That it happened kind of fast. I didn’t remember what the car looked like, but I
       remember feeling the swipe on the passenger side of my car, and then that was
       basically it.

        Similarly, in her affidavit submitted in opposition to Progressive’s motion for summary
disposition, plaintiff stated in relevant part:

       I, Shrita Parker, being duly sworn, state as follows:

       1.     I was involved in a motor vehicle crash on February 8, 2013 (the “Crash”).



                                                -9-
       2.     There was a second vehicle involved in the Crash. That vehicle fled the
       scene of the Crash.

       3.    I believe that the vehicle that fled the scene made physical contact with
       my vehicle during the Crash.

        The trial court correctly noted that plaintiff’s testimony is vague and equivocal. She is
not certain that her vehicle was hit; rather she “believes” that it was and had the “impression”
that her car had been hit and she felt that her car had been “swiped.” The trial court also relied
upon Seifert’s testimony that plaintiff’s car did not show evidence of having been hit by another
car, and upon the photographic evidence, which did not show damage to the passenger side of
the vehicle consistent with the vehicle being “sideswiped.” In light of this evidence, plaintiff’s
equivocal statements did not carry her burden of presenting enough evidence to create a genuine
issue of material fact. The trial court therefore did not err in granting Progressive’s motion for
summary disposition.

       Affirmed.



                                                            /s/ Michael F. Gadola
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Brock A. Swartzle




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