            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



PATRICK MCCOURT,                                                    UNPUBLISHED
                                                                    May 23, 2019
               Plaintiff-Appellant,

v                                                                   No. 343003
                                                                    Oakland Circuit Court
STUART LEBENBOM,                                                    LC No. 2016-154361-NI

               Defendant,

and

ALLSTATE INSURANCE COMPANY,

               Defendant-Appellee.


Before: SAWYER, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

      Plaintiff appeals as of right the trial court’s order of dismissal of defendant Stuart
Lebenbom in this first-party no-fault action. We reverse and remand.

        Plaintiff sustained injuries in an automobile accident on January 24, 2016. Plaintiff filed
a complaint against defendant Allstate Insurance Company (“defendant”) claiming entitlement to
first-party benefits under his insurance policy. The trial court granted summary disposition in
favor of defendant pursuant to MCR 2.116(C)(10), concluding that plaintiff’s claim for benefits
was barred as a matter of law because plaintiff had committed fraud.

       Plaintiff argues that the trial court committed error when it granted defendant’s motion
for summary disposition because there is a genuine issue of material fact as to whether plaintiff
committed fraud in regard to his claims for household replacement services and his preaccident
medical history. We agree.

        A trial court’s decision on a motion for summary disposition is reviewed de novo.
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). A motion for summary
disposition under MCR 2.116(C)(10) challenges the “factual adequacy of a complaint on the


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basis of the entire record, including affidavits, depositions, admissions, or other documentary
evidence.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A trial court’s grant of summary disposition under MCR 2.116(C)(10) is proper when
the evidence, “viewed in the light most favorable to the nonmoving party, show[s] that there is
no genuine issue as to any material fact and the moving party is therefore entitled to judgment as
a matter of law.” Lowrey, 500 Mich at 5. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” Gorman, 302 Mich App at 116 (citation omitted).
“ ‘This Court is liberal in finding genuine issues of material fact.’ ” Lewis v Farmer Ins Exch,
315 Mich App 202, 209; 888 NW2d 916 (2016), quoting Jimkoski v Shupe, 282 Mich App 1, 5;
763 NW2d 1 (2008).

       The no-fault insurance policy at issue contained a general fraud exclusion provision,
which provided: “We may not provide coverage for any insured who has made fraudulent
statements or engaged in fraudulent conduct in connection with any accident or loss for which
coverage is sought under this policy.”

        “Reliance on an exclusionary clause in an insurance policy is an affirmative defense;
therefore, defendant has the burden of proof.” Shelton v Auto-Owners Ins Co, 318 Mich App
648, 657; 899 NW2d 744 (2017). “An insurance company has the burden to prove that one of
the policy’s exclusions applies.” Id. (citation and quotation marks omitted). “Thus, to obtain
summary disposition the insurer must show that there is no question of material fact as to any of
the elements of its affirmative defense.” Id. This Court has set forth the following requirements
for establishing fraud:

       In order to establish that an individual committed fraud, the insurer must establish
       (1) that the individual made a material misrepresentation, (2) that the
       representation was false, (3) that when the individual made the representation he
       or she knew it was false or made it with reckless disregard as to whether it was
       true or false, (4) that the misrepresentation was made with the intention that the
       insurer would act upon it, and (5) that the insurer acted on the misrepresentation
       to its detriment. [Meemic Ins Co v Fortson, 324 Mich App 467, 473-474; 922
       NW2d 154 (2018).]

“A statement is material if it is reasonably relevant to the insurer’s investigation of a claim.”
Bahri v IDS Property Cas Ins Co, 308 Mich App 420, 425; 864 NW2d 609 (2014). “Generally,
whether an insured has committed fraud is a question of fact for a jury to determine.” Meemic,
324 Mich App at 473. “However, under some circumstances, a trial court may decide as a matter
of law that an individual committed fraud.” Id.

                                I. REPLACEMENT SERVICES

        In regard to the misrepresentations provided in plaintiff’s replacement services forms,
plaintiff argues that the trial court erred in finding that plaintiff committed fraud because the
misinformation was merely a mistake on the part of his service provider and roommate, Lonnie
Adams, in not knowing how to properly complete the forms due to the generic directions
provided on the forms. Defendant contends that plaintiff submitted fraudulent claims for

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household replacement services because plaintiff claimed benefits for services that Adams would
have performed even if plaintiff had not been injured. MCL 500.3107(1)(c) provides that
personal protection insurance benefits are payable for:

       (c) Expenses not exceeding $20.00 per day, reasonably incurred in obtaining
       ordinary and necessary services in lieu of those that, if he or she had not been
       injured, an injured person would have performed during the first 3 years after the
       date of the accident, not for income but for the benefit of himself or herself or of
       his or her dependent.

Replacement services forms were submitted to defendant for the months of January, February,
March, April, May, and July 2016. On the forms, Adams indicated that he cooked for plaintiff
every day, he walked plaintiff’s dog almost every day, and he did the laundry every Tuesday and
Saturday. Adams testified that prior to the accident, generally, he did 70% of the household
chores and plaintiff did 30% of the household chores. However, Adam’s also testified that, prior
to the accident, he did all of the cooking, laundry, and he also walked plaintiff’s dog, and after
plaintiff was injured, he continued to perform these services. Plaintiff testified, however, that
prior to the accident, there was no specific arrangement between Adams and plaintiff in regard to
household chores, but rather, they split the chores in half depending on who was available.
Plaintiff also testified that prior to the accident, he did all household chores that involved his
“personal business.” Plaintiff did not specifically indicate what chores those were. Plaintiff
testified that after the accident, Adams took over 90% of the household chores because plaintiff
was only able to do light cleaning around the house.

        In Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 776; 910 NW2d 666
(2017), this Court considered a plaintiff’s fraudulent claim for household replacement services.
The plaintiff, after being struck by a hit-and-run driver, filed a claim for PIP benefits, and in
support of his claim, he submitted to the defendant replacement service calendars for the months
of August, September, and October 2015, which were supposedly signed by the plaintiff’s
brother, Andrew. Id. The calendars reflected that Andrew had provided care for the plaintiff
during those three months. Id. During discovery, the defendant learned that Andrew had
stopped providing services for the plaintiff in July 2015, and after that time, the plaintiff moved
from Rochester to Detroit to live with his girlfriend, who started to provide the replacement
services. Id. At the trial court, the plaintiff’s counsel admitted that the plaintiff had signed
Andrew’s name to the calendars. Id. The defendant moved for summary disposition arguing
that “MCL 500.3173a(2) precluded the plaintiff from recovering any PIP benefits because of the
false statements that were provided.” Id. The trial court denied the defendant’s motion for
summary disposition. Id. On appeal, this Court concluded that the “plaintiff knew that the
statement contained false information, which concerned a fact or thing material to the claim.” Id.
at 781. In support of its conclusion, this Court concluded that the evidence established that the
plaintiff knew that the calendars he submitted were not correct, he knew that he had moved in
with his girlfriend, who provided the replacement services during the three months in question,
and his counsel conceded that the plaintiff had signed or forged Andrew’s name. Id. at 781. The
Court ultimately held that, based on evidence, “[n]o reasonable jury could conclude that plaintiff,
despite the presence of a head injury, was not aware that he was submitting false information that
was material to his claims for no-fault benefits.” Id. at 781-782.


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        Here, defendant argues that it is apparent that plaintiff knew that Adams had provided
false information in the replacement services forms, or at a minimum, plaintiff recklessly
allowed incorrect claims to be filed on his behalf without verifying the accuracy of the claims.
On appeal, plaintiff does not dispute that Adams listed services on the forms that he had
provided prior to plaintiff being injured. However, there is no record evidence that plaintiff in
fact knew that Adams had provided false information at the time the forms were submitted to
defendant. Adams himself was forthcoming in his deposition and described all of the household
chores that he completed prior to the accident and after. There was no indication from Adam’s
testimony that he was attempting to misrepresent the services that he provided for plaintiff prior
to the injury. Moreover, Adams testified that he completed the replacement services forms and
then submitted them to plaintiff’s attorney. During plaintiff’s deposition, plaintiff also indicated
that Adams was the person who completed the replacement services forms. Adams also
personally signed the forms. The forms were not signed by plaintiff. It is not clear whether
plaintiff reviewed the forms; therefore, there is no record evidence that plaintiff in fact knew
specifically what Adams was claiming in the forms, or that Adam’s claims were contrary to
MCL 500.3107(1)(c). This case is not analogous to Candler, in which it would be unreasonable
for a jury to find that the plaintiff therein did not know that his statements contained false
information after the plaintiff lied about who provided his services and then forged his brother’s
signature in order to receive benefits. Here, there is a question of fact as to whether plaintiff was
aware of the specific services that Adams claimed or that the forms contained false information.
Thus, there is a genuine issue of material fact as to whether plaintiff himself made a false
misrepresentation with reckless disregard for its truth or falsity, and with the intention that the
defendant rely on it.

                                II. PRIOR MEDICAL HISTORY

        Plaintiff also contends that the trial court erred in granting defendant’s motion for
summary disposition on the ground that plaintiff fraudulently misrepresented his medical history.
Defendant argues that the statements that plaintiff made at his deposition contradicted his
medical records, and thus, plaintiff committed fraud. Specifically, defendant argues that plaintiff
committed fraud by misrepresenting the medical conditions that led plaintiff to apply for Social
Security Disability (SSD) benefits in March 2010. Plaintiff testified that depression and anxiety
disorders were the conditions that led him to apply for SSD. When asked by defense counsel
whether neck pain, back pain, or pain of any other extremities caused plaintiff to apply for SSD,
plaintiff responded “No.” Defendant asserts that plaintiff’s negative response was a material
misrepresentation because plaintiff’s SSD application states that he took medication for “severe
body aches and pain.” Defendant also contends that a letter from Dr. Stephen Swetech in
support of plaintiff’s SSD benefits application, which stated that plaintiff had arthritis of the
cervical and lumbar spine, is further evidence that plaintiff suffered from physical ailments, and
thus, plaintiff misrepresented his medical history.

        Defendant’s argument regarding plaintiff’s SSD benefits application is without merit.
Nowhere in plaintiff’s SSD application did it specifically state that plaintiff suffered from back
or neck pain or specific physical ailments; the application does not indicate why plaintiff was
suffering from severe aches and pains or whether those pains were the result of physical
conditions. Moreover, Dr. Swetech’s letter does not establish, as a matter of law, that plaintiff
fraudulently misrepresented his medical history. During plaintiff’s deposition, plaintiff was
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asked whether any complaints of back pain, neck pain, or pain of other extremities caused
plaintiff to apply for disability. The fact that Dr. Swetech stated that plaintiff had arthritis of the
cervical and lumbar spine as support for plaintiff’s application does not establish that plaintiff
was suffering from pain of the cervical and lumbar spine when he applied for SSD benefits, that
the condition was one that led plaintiff himself to apply for SSD benefits, or that plaintiff
intentionally withheld this information with the intent that defendant would rely on it. Moreover,
there is no evidence that defendant replied on this information to its detriment. Any
inconsistency between plaintiff’s deposition testimony and his SSD application created a
question of fact as to whether plaintiff’s conduct was fraudulent.

        Defendant also asserts that there are inconsistencies between plaintiff’s testimony
regarding his back problems and his medical records. Defendant points to a March 16, 2010
medical record. The medical record stated that plaintiff had a history of low back pain, and an x-
ray had revealed that plaintiff had “multilevel degenerative changes with mild anterior wedging
of T12 and L1 and minimal anterior wedging of L2.” Moreover, a physical therapy record from
January 10, 2011 indicated that plaintiff had low back pain, and a medical record from June 20,
2012 indicated that plaintiff had degenerative joint disease. These medical records created a
question of fact as to whether plaintiff committed fraud. During plaintiff’s deposition testimony
he was forthcoming about having prior back pain, and admitted that he had sought treatment for
back problems in the past and had been prescribed Motrin to treat the pain. Moreover, the record
indicating that plaintiff had degenerative joint disease was handwritten on the bottom of a form,
and the record did not indicate that the condition was specifically related to plaintiff’s back.
Thus, these medical records do not establish that plaintiff knowingly or with reckless disregard
misrepresented his history of back problems.

        Defendant also asserts that plaintiff’s deposition testimony regarding his history of neck
problems contradicts plaintiff’s medical records. During plaintiff’s deposition testimony,
plaintiff denied that, prior to the accident, he had pain in his neck or had sought treatment for
neck pain. However, plaintiff’s medical records indicate that, on March 16, 2010, plaintiff
presented to the hospital with neck pain, and an x-ray revealed minimal degenerative changes.
Therefore, plaintiff’s statement that he had never had neck pain was not accurate. This Court has
stated that “[f]raud or false swearing implies something more than mistake of fact or honest
misstatements on the part of the insured.” Mina v Gen Star Indemnity Co, 218 Mich App 678,
686; 555 NW2d 1 (1996), rev’d in part on other grounds 455 Mich 866 (1997). Thus, solely
based on this one medical record, it is not clear whether plaintiff knowingly provided false
information or whether it was an honest mistake. Moreover, there is no evidence that plaintiff
intentionally made this statement with the intent that defendant rely on it. Plaintiff provided
defendant with Dr. Swetech’s name, who was plaintiff’s treating physician when plaintiff
presented with neck pain, and plaintiff was forthcoming about Dr. Swetech being plaintiff’s
doctor for approximately 25 years prior to the accident, thus covering the period of time that
plaintiff experienced the neck pain. Moreover, due to plaintiff’s admissions, defendant was able
to obtain plaintiff’s medical records and identify that plaintiff had previously had neck pain. It is
also unclear from the record whether defendant relied on the inaccurate statement to its
detriment. Thus, plaintiff’s denial of past neck pain created a question of fact for the jury as to
whether plaintiff committed fraud.



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         In the lower court, defendant argued that plaintiff’s deposition testimony regarding a
prior brain injury contradicted plaintiff’s medical records. Plaintiff testified that he had not been
diagnosed with a closed head injury, a concussion, a traumatic brain injury, or head trauma prior
to the car accident. Plaintiff’s medical records indicate that plaintiff underwent two MRIs of his
brain in May 2010. The fact that plaintiff underwent two MRIs of his brain does not contradict
his testimony that he had not been diagnosed with one of the specific brain injuries about which
defense counsel asked. Plaintiff underwent one MRI due to a possible aneurysm, but no
aneurysm was detected; the other MRI was performed due to hearing loss and blurry visions, and
the MRI revealed small vessel disease.

        However, when plaintiff was asked during his deposition testimony whether he had
undergone an MRI of his brain prior to the accident, he responded “No.” However, the medical
records indicate that two separate MRIs of the brain were performed in May 2010. Nonetheless,
plaintiff’s incorrect statement does not establish fraud as a matter of law. As stated earlier,
plaintiff was under the care of Dr. Swetech at the time the MRIs were performed, and plaintiff
readily disclosed that Dr. Swetech was his doctor during this time. It is also unclear whether
defendant relied on the statement to its detriment. Thus, there is a genuine issue of material fact
as to whether plaintiff committed fraud in regard to the inconsistencies between his testimony
and medical records regarding past MRIs.

        In the lower court, defendant also asserted that plaintiff misrepresented his history of leg
pain because a handwritten note in a medical record from June 20, 2012, indicated that plaintiff
had “leg numbness.” There is no explanation in plaintiff’s medical records what specifically was
meant by leg numbness, whether the numbness was a symptom of a condition or illness, or
whether the numbness resulted in pain. Thus, the record evidence does not establish that
plaintiff knowingly provided false information when he testified that he did not have any prior
leg pain.

        In conclusion, because “summary disposition is rarely appropriate in cases involving
questions of credibility, intent, or state of mind,” In re Handelsman, 266 Mich App 433, 438;
702 NW2d 641 (2005), and because the question of fraud is generally a question of fact for the
jury, Meemic, 324 Mich App at 473, the record evidence did not support, as a matter of law, that
plaintiff committed fraud to the extent that the fraud exclusion clause of the insurance contract
barred plaintiff’s claim for benefits. Thus, a question of fact exists for the jury to decide.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                              /s/ David H. Sawyer
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




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