Lose if You Fail to Respond to Motion for Summary Disposition

INSURERS FIND FRAUDSTERS ARE OFTEN INCOMPETENT

Post 4943

In a consolidated first-party and third-party no-fault action, plaintiff appealed from two orders granting summary disposition in favor of defendants, including the fraud of the plaintiff.

In Chris Kallco v. Melissa Lynn Pugh, Chris Kallco, and Precise MRI Of Michigan, LLC v. Citizens Insurance Company Of The Midwest and Melissa Lynn Pugh, No. 368156, Court of Appeals of Michigan (October 30, 2024) the Court of Appeals resolved the dispute.

FACTUAL BACKGROUND

After a motor vehicle accident involving plaintiff and Pugh. Plaintiff alleged that he sustained injuries from the accident. A year after the accident, plaintiff brought a negligence claim against Pugh, alleging that, because of Pugh's negligence, plaintiff sustained "severe permanent and progressive personal injuries and serious impairment of a body function, including but not necessarily limited to: Head, Neck, Back, Shoulders ...." Plaintiff also brought a claim against Citizens for PIP benefits, including medical expenses, work loss, and replacement services.

Pugh moved for summary disposition arguing that plaintiff could not meet his burden of showing that he sustained a threshold injury under the no-fault act and, therefore, he could not maintain his negligence claim against her.

Shortly after Pugh filed her motion, Citizens filed its own motion arguing that plaintiff made material misrepresentations to Citizens regarding the extent of his injuries, which rendered him ineligible for benefits under the statute.

The trial court concluded that plaintiff failed to establish that he sustained a serious impairment of body function and therefore summary disposition in favor of Pugh was appropriate.

With regard to Citizens' motion, the trial court found "that absolutely no genuine issue of material fact exists as to whether Plaintiff knowingly made numerous materially false statements in his claims for PIP benefits relative to his alleged injuries and physical restrictions" arising out of the car accident.

THRESHOLD INJURY

Plaintiff argued that the trial court erred by finding that there was no genuine issue of material fact regarding whether plaintiff met the serious-impairment threshold. However, plaintiff's failure to respond to the motion for summary disposition made it impossible for him to support his argument.

The Plaintiff tried to use the defendants evidence as support against the motions. The  attempt failed. The objectively manifested requirement means that plaintiffs must introduce evidence that generally requires medical testimony. Pugh presented objective medical records indicating that there was no physical basis for plaintiff's subjective complaints of pain. Plaintiff's deposition testimony only set forth mere subjective complaints of pain.

Because plaintiff cannot show a factual dispute as to whether he suffered an objectively manifested impairment, he failed to satisfy the threshold serious-impairment requirement.

FRAUDULENT INSURANCE ACT

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 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 that is subject to the penalties imposed by statute.

An individual commits a "fraudulent insurance act" when:

the person presents or causes to be presented an oral or written statement,
the statement is part of or in support of a claim for no-fault benefits, and
the claim for benefits was submitted to the to the insurer or the state, further,
the person must have known that the statement contained false information, and
the statement concerned a fact or thing material to the claim.

As to both motions for summary disposition, plaintiff failed to show that any genuine issue of material facts exists. Accordingly, the trial court did not err by granting summary disposition in favor of defendants.

ZALMA OPINION

As I get older the competence of those who attempt to defraud insurers gets less and less competent. Kallco is an example of the lack of competence. He claimed all kinds of injuries and inability to work or play with his children and, when faced with a competent defense, he ignored the motions, failed to respond, and when he lost he appealed claiming the motions against him gave enough evidence to raise a issue of fact. What a waste of the court's time and I must ask why, with such convincing evidence, no criminal charges were brought.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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