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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

SHRITA PARKER,

Plaintiff-Appellant,

UNPUBLISHED

September 12, 2017

v No. 332461

Wayne Circuit Court

JOHN DOE, 

Defendant,

and

LC No. 14-000942-NI

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 
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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.

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 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 
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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. 
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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 
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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. 

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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?

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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. 

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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. 
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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. 

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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.
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* * * 

Q: Okay. This diagram does not show any collision or any impact between 

the two vehicles; correct?

A: It does not. 

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

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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. 
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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: 
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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”).
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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