Thomasina Glasker-Davis v. Daman Steven Auvenshine
964 NW2d 809
Mich. Ct. App.2020Background
- On June 17, 2016 plaintiff was injured in an automobile collision; she claimed no-fault replacement household services performed by her daughter and submitted "Household Services Statements" showing near-daily services for July 1, 2016–September 30, 2017.
- Meemic, plaintiff’s no-fault insurer, answered with largely boilerplate denials and a 46-paragraph list of affirmative defenses including a one-line fraud allegation that plaintiff had given "false and/or conflicting information."
- At deposition plaintiff said she did not track dates herself, that her daughter filled out and plaintiff reviewed the forms, but that by August 2017 her daughter was coming about twice weekly and had only been daily for a short initial period; plaintiff’s memory issues were noted.
- Meemic moved for summary disposition under the policy’s anti-fraud clause arguing the daily claims contradicted deposition testimony and voided the policy for intentional misrepresentation; the trial court granted the motion finding material, intentional misrepresentations.
- Plaintiff argued Meemic had not pleaded fraud with the particularity required for an affirmative fraud defense and therefore waived that defense; the trial court did not address waiver.
- The Court of Appeals reversed, holding Meemic’s boilerplate affirmative defenses failed to adequately plead fraud with particularity and therefore summary disposition based on that defense was improper; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of Meemic's fraud affirmative defense | Meemic’s fraud defense was boilerplate and not pleaded with the particularity required by MCR 2.112(B)(1); therefore Meemic waived the defense and prejudiced plaintiff by raising it late | Meemic argued its affirmative defenses and subsequent motion supplied sufficient notice that plaintiff’s statements were fraudulent | Held: Meemic’s fraud defense was insufficiently pleaded; boilerplate allegations did not give meaningful notice and trial court erred to grant C(10) dismissal on that basis |
| Entitlement to summary disposition under the policy’s anti-fraud clause | Plaintiff: factual disputes exist whether misrepresentations were intentional; deposition and absence of daughter’s testimony create triable issues | Meemic: deposition established plaintiff contradicted her submitted statements, satisfying the policy’s intentional misrepresentation requirement | Held: Court declined to decide the underlying factual issue of intent because the fraud defense was not properly before the court; remand required for further proceedings |
| Preservation of the waiver argument on appeal | Plaintiff contended she raised waiver in her response brief and therefore preserved it despite no oral argument on waiver | Meemic implicitly argued waiver was not preserved by lack of oral discussion | Held: Waiver issue was preserved—plaintiff’s briefing put the trial court on notice; the court erred by failing to address waiver and appellate review is permitted |
Key Cases Cited
- Peterman v Dep’t of Natural Resources, 446 Mich 177 (parties should not be punished for trial-court omission; issues undecided by the trial court may be preserved for appeal)
- Lowrey v LMPS & LMPJ, Inc., 500 Mich 1 (summary-disposition C(10) standard; de novo review)
- Rory v Continental Ins Co, 473 Mich 457 (contract interpretation and legal-effect questions reviewed de novo)
- Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307 (primary function of pleading is to give notice)
- SE Mich Surg Hosp, LLC v Allstate Ins Co, 316 Mich App 657 (affirmative defenses may be amended; leave generally granted unless prejudicial)
- McCracken v City of Detroit, 291 Mich App 522 (affirmative defenses are not pleadings but must be pleaded and treated like pleadings)
- Baker v Marshall, 323 Mich App 590 (insurance anti-fraud clause gives rise to an affirmative fraud defense that must meet particularity requirements)