If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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

JONATHAN JONES,

Plaintiff-Appellant,

UNPUBLISHED 

August 18, 2022

v No. 355118

Wayne Circuit Court

HOME-OWNERS INSURANCE COMPANY, 

AMERICAN COUNTRY INSURANCE 

COMPANY, and HARTFORD ACCIDENT & 

INDEMNITY COMPANY,

LC No. 18-009868-NI

Defendants-Appellees,

and

SHARNETA HENDERSON,

Defendant.

Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of 

defendants Home-Owners Insurance Company (“Home-Owners”), American Country Insurance 

Company (ACIC), and Hartford Accident and Indemnity Company (“Hartford”), with respect to 

plaintiff’s claims for uninsured or underinsured motorist benefits and first-party personal 

protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq. Although 

defendants disputed their priority to pay PIP benefits, the trial court did not decide the priority 

issue, but instead dismissed all claims on the basis of antifraud provisions in defendants’ respective 
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policies.1 For the reasons set forth in this opinion, we affirm in part, reverse in part, and remand 

for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident on October 28, 2017, in which plaintiff’s

vehicle was struck by a vehicle driven by defendant Sharneta Henderson in Detroit. Plaintiff 

alleges that he was operating a 2009 Ford Crown Victoria and was stopped at a red light when 

Henderson’s vehicle, traveling at a high rate of speed, drove through a red light and struck his 

vehicle. The Crown Victoria was insured under a no-fault policy issued by ACIC, which listed 

Sons of Alice Transportation, LLC (Sons of Alice), as the named insured. Plaintiff also alleged 

that he was covered under policies issued by Home-Owners and Hartford. The Home-Owners 

policy was for plaintiff’s personal vehicle, a 2008 Mercedes, and listed plaintiff as the named 

insured. The Hartford policy was for a 1994 Chevrolet pickup truck and listed Jonathan Jones, 

d/b/a Jones Landscaping, as the named insured.

Plaintiff filed this action against all three insurers for recovery of no-fault PIP benefits and 

also uninsured or underinsured motorist benefits. All three insurers filed motions for summary 

disposition, asserting that plaintiff’s claims were barred by antifraud provisions in the respective 

policies. Defendants argued that in plaintiff’s deposition on December 18, 2018, plaintiff made 

material misrepresentations regarding his physical limitations, the extent to which he required 

attendant care and household replacement services, and the impact of his injuries on his ability to 

work. In support of their allegations of fraud, defendants relied on surveillance evidence from 

February, June, and July of 2018, which contradicted plaintiff’s statements regarding the scope of 

his injuries and pain, his physical limitations, and his inability to work. Hartford also alleged that 

the trial court initially should determine which insurer was first in priority to pay PIP benefits

under MCL 500.3114, and it disputed that it was first in priority. Plaintiff denied the allegations 

of fraud. Following a hearing, the trial court declined to address the priority dispute, but found 

that there was no genuine issue of material fact that plaintiff committed fraud by making material 

misrepresentations in his deposition and held that all three insurers were entitled to summary 

disposition on the basis of the antifraud provisions in the policies, and accordingly, dismissed all 

claims against the insurers. This appeal followed.

II. SUMMARY DISPOSITION

Plaintiff alleges that the trial court erred by failing to determine the respective priority of 

each insurer under MCL 500.3114, and by determining that defendants were entitled to dismissal

of plaintiff’s claims for recovery of PIP benefits and uninsured or underinsured motorist benefits

on the basis of the antifraud provisions in defendants’ respective policies. We agree that the trial 

court erred by failing to address the issue of the insurers’ priority under MCL 500.3114. We also 

hold that the trial court erred by dismissing plaintiff’s claims for recovery of PIP benefits on the 

 

1 The trial court also granted a default judgment in favor of plaintiff with respect to defendant 

Sharneta Henderson, but that judgment is not at issue and Henderson is not a party to this appeal.
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basis of plaintiff’s alleged postprocurement fraud, but hold that plaintiff’s claims for recovery of 

uninsured and underinsured motorist benefits were properly dismissed.

A. STANDARDS OF REVIEW

Defendants moved for summary disposition under MCR 2.116(C)(10). In El-Khalil v 

Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019), our Supreme Court 

explained:

A motion under MCR 2.116(C)(10), on the other hand, tests the factual 

sufficiency of a claim. Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 

(2018). When considering such a motion, a trial court must consider all evidence 

submitted by the parties in the light most favorable to the party opposing the 

motion. Id. A motion under MCR 2.116(C)(10) may only be granted when there 

is no genuine issue of material fact. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 

890 NW2d 344 (2016). “A genuine issue of material fact exists when the record 

leaves open an issue upon which reasonable minds might differ.” Johnson, 502 

Mich at 761 (quotation marks, citation, and brackets omitted).

The priority of insurers, an issue of statutory construction, presents a question of law that this 

Court reviews de novo. Titan Ins Co v American Country Ins Co, 312 Mich App 291, 296; 876 

NW2d 853 (2015). The insurance company has the burden of proving that a policy exclusion 

applies and that there is no genuine issue of material fact pertaining to the affirmative defense. 

Shelton v Auto-Owners Ins Co, 318 Mich App 648, 657; 899 NW2d 744 (2017).

B. PRIORITY UNDER MCL 500.3114

Initially, we agree that the trial court erred by failing to address which insurer had priority 

to pay PIP benefits under MCL 500.3114.

In Miclea v Cherokee Ins Co, 333 Mich App 661, 667-668; 963 NW2d 665 (2020), this 

Court explained that while it is possible for more than one no-fault insurer to be responsible for 

PIP benefits to an individual, individuals are generally not able to seek double recovery under 

multiple no-fault policies unless the person’s injuries exceed a policy’s limits. Where the liability 

of multiple insurers are at issue, the priority of coverage is determined by MCL 500.3114(1). Id.; 

Corwin v DaimlerChrysler Ins Co, 296 Mich App 242, 254; 819 NW2d 68 (2012).

When the accident occurred on October 28, 2017, MCL 500.3114 provided, in pertinent 

part:

(1) Except as provided in subsections (2), (3), and (5), a personal protection 

insurance policy described in [MCL 500.3101] applies to accidental bodily injury 

to the person named in the policy, the person’s spouse, and a relative of either 

domiciled in the same household, if the injury arises from a motor vehicle accident. 

(2) A person suffering accidental bodily injury while an operator or a 

passenger of a motor vehicle operated in the business of transporting passengers 
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shall receive the personal protection insurance benefits to which the person is 

entitled from the insurer of the motor vehicle . . . .

Thus, “ ‘the general rule is that one looks to a person’s own insurer for no-fault benefits unless one 

of the statutory exceptions, [MCL 500.3114(2), (3), and (5)], applies.’ ” Miclea, 333 Mich App at 

668, quoting Parks v Detroit Auto Inter-Ins Exch, 426 Mich 191, 202-203; 393 NW2d 833 (1986).

Plaintiff was the named insured under the Home-Owners policy, which listed the insured 

vehicle as a 2008 Mercedes E350. The ACIC policy listed Sons of Alice as the named insured, 

and listed the covered automobile under the policy as the 2009 Ford Crown Victoria that plaintiff 

was driving at the time of the accident. Finally, the Hartford policy listed the named insured as 

Jonathan Jones, d/b/a Jones Landscaping, and listed the covered vehicle as a 1994 Chevrolet 

pickup truck. In other portions of the Hartford policy, Jonathan Jones is named as the insured, 

without any reference to the landscaping business.

An individual may be entitled to PIP benefits mandated by the no-fault act even if the 

person is not a named insured under a no-fault policy, and such a person is not subject to the 

policy’s antifraud provision. See Shelton, 318 Mich App at 652. Specifically, where the plaintiff 

was not a party to, or an insured, under the no-fault policy, the insurance company’s obligation to 

pay PIP benefits arose by way of statute, rather than a contractual agreement. Id. Because the 

plaintiff’s entitlement to no-fault benefits was governed by statute, MCL 500.3114(4)(a), the 

exclusionary provision in the defendant’s no-fault policy did not apply and could not operate to 

bar the plaintiff’s claims. Id. at 653-655.

In this case, plaintiff sought recovery of PIP benefits under three different policies, only 

one of which—the Home-Owners policy—clearly listed plaintiff as the named insured. The trial 

court apparently determined that it was unnecessary to decide which insurer had priority to pay 

PIP benefits, because it determined that plaintiff’s fraud voided coverage for PIP benefits under 

all three policies. Under Shelton, however, to the extent that plaintiff was entitled to PIP benefits 

under a policy in which he was not a named insured—that is, his entitlement to benefits arose by 

way of statute rather than contractual agreement—the defendant insurer would not be able to rely 

on a fraud provision in its policy to avoid liability for PIP benefits. Therefore, it was necessary to 

determine which insurer had first priority for payment of PIP benefits. Accordingly, we reverse 

the trial court’s order granting summary disposition and remand for a determination of the priority 

of the potential insurers, whether plaintiff is entitled to benefits under a policy, and whether the 

benefits arise by statute or contract.2

 

2 We note that plaintiff testified regarding his transportation of passengers in the Crown Victoria 

involved in the accident for his daughter’s business. Although his daughter was deposed, the 

transcript was apparently unavailable at the time of the dispositive motions. We presume that the 

parties will produce all relevant evidence to discern the nature of plaintiff’s relationship to the 

business and his involvement in the business unless it is factually in dispute. See Farmers Ins 

Exch v AAA of Mich, 256 Mich App 691, 701-702; 671 NW2d 89 (2003).
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C. POSTPROCUREMENT FRAUD

Although the trial court concluded that summary disposition was appropriate because of 

the antifraud provisions of the insurance policies at issue, it failed to determine whether plaintiff 

was considered an insured for purposes of the policies and whether any alleged fraud occurred to 

induce the policies as opposed to postprocurement fraud and whether statutory or common-law 

defenses were available in light of the fraud at issue. See Meemic Ins Co v Fortson, 506 Mich 

287, 305; 954 NW2d 115 (2020); Williams v Farm Bureau Mut Ins Co of Mich, 335 Mich App 

574, 578, 580; 967 NW2d 869 (2021) (holding that if the alleged fraud did not influence or induce 

the policy’s procurement, there is not a common-law basis to rescind a no-fault policy or avoid 

performance of obligations under the policy and antifraud provisions are invalid when they purport 

to apply to misrepresentations or fraud that occurs after the policy has been issued). Accordingly, 

we reverse the trial court’s order and remand to address the availability of PIP benefits in light of 

these decisions.

D. UNINSURED AND UNDERINSURED MOTORIST BENEFITS

Plaintiff’s complaint also included claims for uninsured and underinsured motorist 

coverage. In Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 522; 502 NW2d 310 (1993), 

our Supreme Court recognized that while PIP benefits are mandated by the no-fault act, “uninsured 

motorist coverage is not.” Thus, the insurance policy itself will govern the interpretation of its 

provisions regarding uninsured motorist coverage benefits, which are not required by statute. Id. 

at 525. In cases in which uninsured motorist benefits are at issue, the policy definitions are 

controlling. Id. at 534; see also Dawson v Farm Bureau Mut Ins Co of Mich, 293 Mich App 563, 

568; 810 NW2d 106 (2011) (observing that underinsured motorist benefits are not required by the 

no-fault act and is considered optional coverage that is offered by some, but not all, automobile 

insurance companies in Michigan, and therefore, “limitations of underinsurance protection are 

governed by the insurance contract and the law pertaining to contracts”). Accordingly, because 

uninsured and underinsured motorist coverage is not mandated by the no-fault act, there is no 

prohibition against enforcement of the antifraud provisions in the defendant insurers’ policies as 

applied to this coverage. Therefore, it is necessary to determine whether there are genuine issues 

of material fact regarding plaintiff’s alleged fraud.

In Titan Ins Co v Hyten, 491 Mich 547, 555; 817 NW2d 562 (2012), our Supreme Court 

stated that, under Michigan law, there are “several interrelated but distinct common-law doctrinesloosely aggregated under the rubric of ‘fraud[.]’ ” As pertinent to this appeal, one such commonlaw doctrine is actionable fraud, also known as fraudulent misrepresentation. To make a prima 

facie showing of fraudulent misrepresentation, the following elements must be satisfied:

(1) That [plaintiff] made a material representation; (2) that it was false; (3) that 

when he made it he knew that it was false, or made it recklessly, without any 

knowledge of its truth and as a positive assertion; (4) that he made it with the 

intention that it should be acted upon by [his no-fault insurer]; (5) that [the no-fault 

insurer] acted in reliance upon it; and (6) that [it] thereby suffered injury. Each of 

these facts must be proved with a reasonable degree of certainty, and all of them 

must be found to exist; the absence of any one of them is fatal to a recovery. [Id., 

quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919), overruled in 
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part on other grounds by United States Fidelity & Guaranty Co v Black, 412 Mich 

99, 116 n 8; 13 [313] NW2d 77 (1981) (citation and quotation marks omitted).]

During his deposition, plaintiff described his physical limitations after the accident. He 

complained of a high level of pain, which he rated as a 9 out of 10, with 10 being the most severe, 

and said he planned to seek treatment at a pain clinic the following week. Plaintiff said he was 

still experiencing pain and numbness, even after participating in physical therapy, and that he was 

not able to leave his home without the assistance of a cane. Plaintiff also stated that he could not 

bend over, lift, and walk without difficulty because of his pain. Plaintiff’s daughters still needed 

to help him get in and out of the bathtub, and as recently as November 2018, his daughters were 

assisting him with washing himself. Plaintiff said he sometimes still needed help getting dressed, 

depending on how he was feeling. More significantly, plaintiff testified that his lawn care business 

was not active during the spring and summer of 2018, and he could not do any physical labor 

himself during that time period. Plaintiff also explained that while he could bend over during the 

summer of 2018, he was not able to lift any items, he did not work in the preceding year because 

of his pain, and he could not recall working during the summer of 2018.

Accordingly, the evidence reflects that plaintiff made repeated statements at his 

December 2018 deposition regarding his pain and physical limitations following the accident, 

which he claimed affected his mobility and ability to lift items, and his ability to work. These 

statements were directly contradicted and established to be factually inaccurate by the surveillance 

evidence, which showed plaintiff moving freely without apparent pain and discomfort, and 

repeatedly lifting heavy items into a vehicle. Accordingly, we agree with the trial court that the 

evidence, specifically plaintiff’s deposition testimony and the surveillance evidence, establishes 

that there is no genuine issue of material fact regarding whether plaintiff made false and material 

misrepresentations, knowing the representations to be false. Titan, 491 Mich at 555.

Plaintiff submits, however, that because his statements were made in the context of ongoing 

litigation, they may not be used to void coverage on the basis of fraud. In Haydaw v Farm Bureau 

Ins Co, 332 Mich App 719, 723; 957 NW2d 858 (2020), this Court considered whether statements 

made during the course of litigation were grounds to void a policy under the policy’s fraud 

provision. Reviewing caselaw from other jurisdictions, this Court held that exclusionary fraud 

provisions “do not apply to statements made during the course of litigation.” Id. at 723-726. This 

Court explained:

False statements made during discovery do not provide grounds to void the policy 

because, by that time, the claim has been denied and the parties are adversaries in 

litigation. Once suit is brought, what is truth and what is false are matters for a jury 

or a judge acting as fact-finder. And if it can be shown that a party intentionally 

testified falsely, it is up to the court to determine what, if any, sanction is proper. 

Indeed, defendant is essentially seeking dismissal of plaintiff’s claim on the basis 

of alleged discovery misconduct. Given that questions of credibility and intent are 

generally left to the trier of fact, “[i]t is . . . doubtful whether dismissal for 

intentionally false deposition testimony is ever appropriate.” Swain v Morse, 332 

Mich App 510, 524; 957 NW2d 396 (2020). In any event, it is up to the trial court 

to determine whether a drastic sanction such as dismissal is warranted for discovery 

misconduct, including untruthful deposition testimony. To be clear, once an 
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insurer fails to timely pay a claim and suit is filed, the parties’ duties of disclosure 

are governed by the rules of civil procedure, not the insurance policy. [Id. at 726-

727 (emphasis added).]

In Haydaw, this Court also explained that statements made during litigation, by their very 

nature, cannot satisfy the elements to void a no-fault policy on the basis of postloss fraud, because 

the alleged material misrepresentation could not have been made with the intention that an insurer 

would act on it. Id. at 728. Put another way, the Court acknowledged that when an insured makes 

statements during discovery, the insured does so with the intention that the trier of fact, as opposed 

to the insurer, will act on the statements, and that once litigation is initiated, an insurer only acts 

on the statements “for purposes of litigation strategy,” rather than processing the claim under the 

terms of the policy. Id. The Court also noted that if it had held otherwise—that a fraud clause 

applies to statements made during the course of litigation—this would impact the first-breach rule 

in Michigan, which holds that if an insurer, by denying a claim, is the first to breach a contract, it 

may not thereafter defend on grounds that the plaintiff did not adhere to the terms of the contract. 

Id. at 729.

Subsequently, in Fasho v Liberty Mut Ins Co, 333 Mich App 612, 619; 963 NW2d 695 

(2020), this Court clarified that Haydaw stood for the “unremarkable proposition” that an insurer 

is precluded from asserting that a claim was denied because of fraud that occurred following the 

commencement of litigation, and instead “the fraud must have occurred before the commencement 

of legal proceedings.” In Fasho, the plaintiff sought PIP benefits, including wage-loss benefits. 

While the defendant insurer initially paid no-fault benefits, surveillance showed the plaintiff, the 

owner of an automotive repair shop, working without apparent limitations and conducting 

activities such as loading and unloading tires from his work van, carrying around heavy tools, and 

pushing vehicles. Id. at 614-615. After the defendant insurer terminated PIP benefits, the plaintiff 

filed suit and, during discovery, testified that he was unable to perform his work duties for several 

months after the accident up until the time of his deposition. Id. at 615. This Court explained:

This recognizes the reality that a plaintiff-insured only commences suit after the 

defendant-insurer denies the plaintiff’s claim and that the denial cannot possibly be 

based on an event that has not yet taken place. This does not mean that a defendant 

cannot rely on evidence of fraud obtained after litigation commences. It simply 

means that the evidence must relate to fraud that took place before the proceedings 

began. [Id. at 619.]

The Court in Fasho, id. at 621-622, drew a distinction between the facts in that case, and the facts 

in Haydaw, observing that the plaintiff in Fasho made misrepresentations before the litigation 

commenced. After holding that Haydaw was distinguishable, this Court affirmed the trial court’s 

determination that reasonable minds could not differ regarding that the plaintiff made 

misrepresentations about his need for wage-loss benefits.

Applying these decisions to our facts, plaintiff’s statements during his deposition, which 

took place after litigation commenced, cannot be used to implicate an antifraud provision in an 

insurance policy, and thus defendants could not rely on those statements to justify a denial of 

benefits. Under Fasho, however, fraudulent statements made before litigation is commenced 
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properly can be considered and can implicate an antifraud provision in an insurance policy. Fasho, 

333 Mich App at 621-622.

In this case, plaintiff participated in a recorded interview with a Home-Owners 

representative on February 16, 2018, before this litigation was commenced. Plaintiff stated that 

the motor vehicle accident caused injuries to his right ankle, his knees and back, and that “basically 

I just be hurtin[g] all over.” Plaintiff also stated that he injured his head after hitting it on the 

steering wheel. Plaintiff explained that his right ankle was sore and “sometimes it numb up and [I 

am] unable to move it sometimes.” Plaintiff was experiencing numbness and sharp pain in his 

arms, pain in his neck up to the back of his head, and was having headaches “from time to time.” 

Plaintiff was attending physical therapy for his back, leg, ankle, and arms at the time he gave his 

recorded statement, and he recounted that “[s]ometimes [physical therapy] you know, sometimes 

it helps.” At the time of his recorded statement, plaintiff said he was not able to drive himself to 

and from appointments because of his pain and dizzy spells, and he relied on a transportation 

service to get him to and from appointments. Plaintiff was treating with a pain-management 

physician, an orthopedic surgeon, and a psychiatrist. Following the accident, plaintiff was not able 

to cook, clean, or wash dishes, and he required the assistance of his daughter eight hours a day for 

assistance with washing dishes, cleaning, cooking, massages, and shaving his head. His daughter 

would also accompany him in the bathroom when he was showering and bathing, and she assisted 

him with washing. His daughter would also assist plaintiff with dressing. Plaintiff had obtained 

a prescription for replacement services and attendant care, and said that he expected his daughter

to be reimbursed for assisting him at home.

Viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of 

material fact that plaintiff made material misrepresentations regarding his physical limitations, 

including his ability to conduct his daily activities of living, that were established by the 

surveillance evidence3to be factually incorrect and untruthful. Specifically, while plaintiff 

testified that he required the assistance of his family to wash dishes, clean, cook, get dressed, and 

shower and bathe, defendants presented surveillance evidence that showed plaintiff on 

February 21, 2018, “bent over into [his] vehicle for several moments, then proceed[ing] to carry 

two arms full of groceries to the residence” while moving in a “normal, fluid manner” without 

using any medical assistive aids or devices. Surveillance was also subsequently conducted on 

March 5, 2018, in which plaintiff was observed moving “in a normal, fluid manner” while using a 

cane as he walked toward his residence. The surveillance evidence is clear, uncontroverted, and 

undermines plaintiff’s claim that his injuries hindered his ability to care for himself. The evidence 

was also such that reasonable minds could not disagree that plaintiff made the statements during 

his recorded interview knowing that they were false, and with the intent that a no-fault insurer 

would act on them to determine that he was entitled to coverage. Titan, 491 Mich at 555. 

 

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In a separate issue, plaintiff contends that the surveillance evidence was inadmissible because 

defendant insurance companies declined to disclose the evidence citing privilege. This issue was 

never raised in the trial court, and we decline to address it. This Court’s function is to serve as an 

error-correcting Court. See Apex Laboratories Int’l Inc v City of Detroit, 331 Mich app 1, 10; 951 

NW2d 45 (2020). Because the issue was never briefed in the trial court, we will not rule on the 

merits of the issue for the first time on appeal.
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Accordingly, the trial court did not err by dismissing plaintiff’s claims for uninsured and 

underinsured motorist benefits on the basis of plaintiff’s fraudulent misrepresentations.

In sum, we affirm the trial court’s order granting defendants summary disposition with 

respect to plaintiff’s claim for uninsured or underinsured motorist benefits, but reverse the order 

to the extent that it dismissed plaintiff’s claim for PIP benefits and remand for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.

/s/ Michael J. Riordan

/s/ Stephen L. Borrello

/s/ Anica Letica