THOMASINA GLASKER-DAVIS, Plаintiff-Appellant, v DAMAN STEVEN AUVENSHINE, Defendant, and MEEMIC INSURANCE COMPANY, Defendant-Appellee.
No. 345238
STATE OF MICHIGAN COURT OF APPEALS
August 13, 2020
FOR PUBLICATION
Wayne Circuit Court LC No. 16-016881-NI
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.
Plaintiff, Thomasina Glasker-Davis (plaintiff), appeals by right the trial court’s order granting summary disposition in favor of defendant Meemic Insurance Company (Meemic). Plaintiff was injured in an automobile accident. Plaintiff alleged a claim for negligence against Daman Steven Auvenshine, the driver of the other vehicle; and a claim for first-party benefits against Meemic, plaintiff’s no-fault insurance provider. Specifically, plaintiff claimed she was entitled to compensation for several months of replacement care services she received daily from her daughter. At her deposition, plaintiff testified that her daughter had performed services daily for a brief period and otherwise only came over two to three times a week. On the basis of that discrepancy, Meemic moved for summаry disposition on the ground of fraud. The trial court granted summary disposition, and Auvenshine was then dismissed by stipulation. Because we agree with plaintiff that Meemic failed to properly raise fraud in its affirmative defenses, we reverse and remand for further proceedings.
I. BACKGROUND
For purposes of this appeal, the underlying facts in this matter are not seriously disputed. On June 17, 2016, plaintiff was driving her car in Detroit, when Auvenshine backed his car out onto the road and crashed into plaintiff’s car. Plaintiff was injured in the crash. Meemic had issued a policy of no-fault insurance under which plaintiff was covered. Plaintiff did not make any claims for wage loss or attendant care servicеs, but rather only for household assistance or replacement care services, which she referred to as “the chores.” The record shows that plaintiff, through counsel, submitted to Meemic “Household Services Statements” purporting to show that her daughter, Alicia Glasker, had cleaned plaintiff’s kitchen, washed the dishes, and cooked almost every day1 from July 1, 2016, through September 30, 2017. In her complaint, plaintiff contended that Meemic refused
At plaintiff’s deposition, she testified that she had not kept track of when Alicia performed the chоres or rendered assistance. Rather, Alicia kept track on pieces of paper that plaintiff would review and sign. We note that the Household Services Statements actually appear to be signed by Alicia, not by plaintiff, and all of the other writing on the forms appears to be from the same hand. Plaintiff testified thаt as of the date of her deposition, in August of 2017, Alicia was coming over to help plaintiff approximately twice a week. Plaintiff believed that Alicia came over more often in 2016 because plaintiff was suffering much more pain at the time. Plaintiff stated that Alicia had come over on a daily basis “when [plaintiff] first got sick.” However, for at least some portion of 2016, Alicia came over “maybe three times a week.” Plaintiff emphasized that she relied on the forms Alicia filled out to determine when Alicia performed services. The record suggests that plaintiff may have suffered some memory deficits, caused by the accident, plaintiff’s blood pressure, or both. However, we cannot find any other details of the nature or extent of those deficits in the record.
Meemic moved for summary disposition on the basis of the fraud provision in its policy. That provision apparently2 stated in relevant part that the “entire Policy is void if any insured person has intentionally concealed or misrepresented any material fact or circumstance relating to . . . any claim made under it.” Meemic argued that in light of plaintiff’s deposition testimony that Alicia had performed services at most three times a week, the Household Services Statements and claim for services performed daily constitutеd fraud under the policy. Plaintiff recognized that her claims for daily replacement household services conflicted with her deposition testimony. However, plaintiff argued that the policy’s fraud provision required intentional misrepresentations, and there were outstanding factual questions whether plaintiff had intentionally prоvided conflicting or inaccurate information, especially because Alicia had not been deposed. Plaintiff
further argued that Meemic had not properly raised fraud in its affirmative defenses, because a mere reference to fraud did not constitute pleading with particularity as required by the court rules.
The triаl court held a motion hearing, during which the parties argued consistent with their briefs regarding whether plaintiff had intentionally misrepresented any material facts within the meaning of the insurance policy. During the hearing, neither the parties nor the trial court mentioned plaintiff’s contention that Meemic had waived any fraud defense. The trial court ruled from the bench that it found plaintiff to have unequivocally testified that Alicia “never” provided services more than three times a week. It also found that plaintiff’s testimony established that she had reviewed all of the statements provided by Alicia, so plaintiff would have known the statements were incorrect; thereforе,
Plaintiff moved for reconsideration, reiterating her position that Meemic had not properly raised its fraud affirmative defense, and reminding the court that plaintiff had included the waiver argument in its response to Meemic’s motion for summary disposition. She argued that Meemic’s late assertion of fraud after the close of discоvery precluded plaintiff from deposing Alicia, thereby prejudicing her. The trial court entered an order denying reconsideration, repeating that no palpable error occurred because no rational trier of fact could find that plaintiff had not committed fraud. The trial court’s order denying reconsideration did not mention waiver of the fraud affirmative defense. Plaintiff and Auvenshine stipulated to Auvenshine’s dismissal and to the entry of a final order closing the case. This appeal followed.
II. ISSUE PRESERVATION
It is sometimes erroneously believed that an issue must be raised in and decided by the trial court for that issue to be preserved for appeal. Seе, e.g., Fast Air, Inc v Knight, 235 Mich App 541, 549 (1999). However, our Supreme Court has unequivocally explained that “[parties] should not be punished for the omission of the trial court,” and it squarely rejected “the proposition that issues undecided by the trial court are not preserved for appeal.” Peterman v Dep’t of Natural Resources, 446 Mich 177, 183 (1994). Rather, issue preservation requirements only impose a genеral prohibition against raising an issue for the first time on appeal. Id. Consistent with that principle, a party also need not preserve an objection to “a finding or decision” made by the trial court,
Here, plaintiff specifically and extensively argued in response to Meemic’s motion for summary disposition that Meemic had waived the affirmative defense of fraud. Although waiver was not discussed during oral argument at the motion hearing, a party need only bring the issue to the court’s attention—whether orally or in a brief or both. See Steward, 251 Mich App 551 n 6.
Plaintiff’s briefing оf the issue unambiguously raised the issue. “The purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice.” Local Emergency Financial Assistance Loan Bd v Blackwell, 299 Mich App 727, 737 (2013) (quotation and alteration omitted). Plaintiff clеarly did everything reasonable to bring this issue to the trial court’s attention. Cf. Twp of Fraser v Haney (On Remand) (Fraser II), ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 337842), slip op at p 2 (because the plaintiff permitted an unraised affirmative defense to be tried by implied consent, the plaintiff
III. STANDARD OF REVIEW
“This Court reviews de novo the grant or denial of a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6 (2016). “A trial court may grant a motion for summary disposition under
IV. FRAUD AFFIRMATIVE DEFENSE
Michigan is “a traditional notice-pleading jurisdiction” with “a relatively low bar” for the sufficiency of initial allegations, particularly because parties generally will not yet have the benefit of discovery. Tomasik v State of Michigan, 327 Mich App 660, 677-678 (2019). “[T]he primary function of a pleading in Michigan is to give notice of the nature of the claim оr defense sufficient to permit the opposing party to take a responsive position.” Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 317 (1993). Affirmative defenses are not “pleadings” under the court rules. McCracken v City of Detroit, 291 Mich App 522, 526-528 (2011). Nevertheless, affirmative defenses have long been understood to be something that must be “pled.” See Robinson v Emmet Co Road Comm, 72 Mich App 623, 639 (1976). Furthermore, the court rules provide that affirmative defenses may bе amended pursuant to the same process as pleadings and are to be included within a pleading.
Michigan’s procedural rules recognize and account for the fact that it may not be possible to plead fraud, or indeed anything else, with particularity at the commencement of a case. A party may move to amend its affirmative defenses at any time, and leave should be granted freely unless doing so would prejudice the other party. SE Mich Surg Hosp, 316 Mich App at 663; Stanke, 200 Mich App at 320-321.
Thus, a defending party is not required to inundate a plaintiff with a laundry list of every conceivable affirmative defense from the outset, irrespective of whether there is reason to believe any of the defenses might ultimately be supportable.
We therefore agree with plaintiff that even under ordinary notice-pleading requirements, merely enumerating “[a] laundry list of affirmative defensеs gives the plaintiff no more notice, in the context of an affirmative defense, than a statement that ‘I deny I’m liable’, gives in the context of an ordinary defense.” Woodruff v State Farm Mut Auto Ins Co, unpublished per curiam opinion of the Court of Appeals, issued May 27, 2014 (Docket No. 314093), unpub op at p 5, citing Stanke, 200 Mich App at 318.4 We find Woodruff persuasive in the absence of binding authority on point: a tomе of disconnected boilerplate affirmative defenses, many of questionable relevance, does not provide the opposing party with any meaningful way to respond. Furthermore, it is difficult to understand how doing so could possibly be considered the result of a “reasonable inquiry,” or “well grounded in fact” or “warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law.”
A defense premised on an alleged violation of an anti-fraud provision in an insurance policy constitutes an affirmative fraud defense. Baker v Marshall, 323 Mich App 590, 597-598 (2018). “In allegations of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity.”
Consequently, it is obvious that Meemic’s affirmative defenses did not adequately raise the affirmative defense of fraud. The trial court erred by granting summary disposition in Meemic’s favor on the basis of fraud under the present procedural posture of this matter. We need not address any of the other arguments presented on appeal, and we express no opinion whatsoever as to any factual questions in this matter.
The order granting summary disposition in Meemic’s favor is reversed, and this matter is remandеd to the trial court for further proceedings. We do not retain jurisdiction. Plaintiff, being the prevailing party, may tax costs.
/s/ Amy Ronayne Krause
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel