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

RUBY SEIFUDDIN,

Plaintiff-Appellant,

UNPUBLISHED

June 20, 2019

v No. 340564

Wayne Circuit Court

ESURANCE PROPERTY AND CASUALTY 

INSURANCE COMPANY,

LC No. 16-008008-NF

Defendant-Appellee.

Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ.

PER CURIAM.

Plaintiff suffered injuries in a 2013 auto accident. In 2016, plaintiff filed this action 

against her insurance carrier, seeking payment of personal-injury-protection benefits, alleging 

claims for both work-loss and replacement-services benefits. The trial court granted defendant 

summary disposition of plaintiff’s claims, and plaintiff now appeals. We affirm.

I. BACKGROUND

This case arises from a car accident that occurred on November 30, 2013. Following the 

accident, plaintiff sought treatment from Dr. Kevin Crawford, who determined that she was 

disabled and that she could not perform household services. In plaintiff’s deposition, she 

testified that her son assisted her with replacement services for a six-month period after the 

accident. Her son stopped providing replacement services at some point and plaintiff stopped 

treatment with Dr. Crawford in either June or July of 2014. 

Plaintiff filed a lawsuit against defendant on June 23, 2016, alleging that she was entitled 

to personal-injury-protection (PIP) benefits under the no-fault act, MCL 500.3101 et seq. 

Specifically, plaintiff sought payment of both work-loss and replacement-services benefits. 

Defendant filed a motion for summary disposition under MCR 2.116(C)(10), arguing that 

plaintiff’s claims were barred by the one-year-back rule, MCL 500.3145. In addition, 

defendant’s motion pointed to plaintiff’s testimony that she had not received treatment for her 

alleged injuries since 2014. 
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In response to defendant’s motion, plaintiff acknowledged that her claims that arose 

before June 23, 2015, were barred. Yet, plaintiff argued that she was entitled to work-loss and 

replacement-services benefits for three years after the accident, under MCL 500.3107(1)(b). 

Accordingly, plaintiff argued that her claims for work-loss and replacement-service benefits for 

the period from June 23, 2015, through November 30, 2016, were valid. In support of that 

argument, plaintiff relied on her deposition testimony that she was employed on the date of the 

accident and that she was no longer able to work. In addition, plaintiff submitted her own 

affidavit stating that she was no longer able to work because of her accident-related injuries and 

that she was continuing to seek medical treatment. Finally, plaintiff submitted a June 29, 2017 

letter from her doctor, Dr. Zakaria Ahmad, stating that he was treating plaintiff for “joint pain 

that is related to a Motor Vehicle Accident that occurred in 2015.”

The trial court initially granted defendant’s motion for summary disposition only in part, 

applying the one-year-back rule to bar plaintiff’s claims that arose before June 23, 2015. At a 

subsequent settlement conference, defendant orally renewed its motion for dismissal of

plaintiff’s remaining claims for work-loss and replacement-service benefits for the period from 

June 23, 2015, through November 30, 2016. Defendant argued that plaintiff failed to provide 

sufficient evidence that she (1) she was unable to work, (2) was treating for her accident-related 

injuries, or (3) needed replacement services. Plaintiff responded that her deposition testimony 

and affidavit provided sufficient evidence to maintain her claims. The trial court dismissed all of 

plaintiff’s remaining claims, citing MCR 2.116(C)(10), based on plaintiff’s failure to provide any 

medical records or a disability prescription to create a genuine issue of material fact regarding 

her claims for work-loss and replacement-services benefits.

Plaintiff now appeals.

II. ANALYSIS

A. DUE-PROCESS CLAIM

Plaintiff argues that the trial court violated her due-process rights when it dismissed the 

case sua sponte without providing notice of the proceeding. Plaintiff’s claim focuses on the 

settlement conference at which the trial court granted defendant’s oral motion. Whether due 

process has been afforded is a constitutional issue that we review de novo. Elba Twp v Gratiot 

Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). We conclude that the trial court 

did not violate plaintiff’s due-process rights.

MCR 2.116(I)(1) states, “If the pleadings show that a party is entitled to judgment as a 

matter of law, or if the affidavits or other proofs show that there is no genuine issue of material 

fact, the court shall render judgment without delay.” “Under this rule, a trial court has authority 

to grant summary disposition sua sponte, as long as one of the two conditions in the rule is 

satisfied.” Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009). A trial court 

may not grant summary disposition sua sponte, however, “in contravention of a party’s due 

process rights.” Id. at 489. “The basic requirements of due process in a civil case include notice 

of the proceeding and a meaningful opportunity to be heard.” Id. at 485. In this case, plaintiff 

argues only that the trial court failed to provide her with proper notice and does not argue that 

she was deprived of an opportunity to be heard.
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First, we conclude that the trial court did not dismiss the case sua sponte. Instead, 

defendant orally renewed its motion seeking dismissal of the case because plaintiff failed to 

provide evidence of her claims that she was unable to work and that she needed help with 

household services. Defendant’s earlier motion for summary disposition concentrated on the 

argument that plaintiff’s claims for work-loss and replacement-services benefits were barred 

because of the one-year-back rule. In addition, defendant’s motion for summary disposition also 

stated: “Plaintiff testified that she has not sought any treatment for any injuries allegedly 

sustained in the subject accident, since June or July 2014.” In plaintiff’s response in opposition 

to that motion, she stated that she had been unable to work since the accident, she was still 

disabled from working, and she was still in treatment for her injuries from the accident. 

Therefore, defendant’s oral request to renew its motion for summary disposition because plaintiff 

had failed to provide evidence of his claims was entirely consistent with its earlier-filed motion 

that the trial court granted in part. 

Plaintiff’s argument regarding a lack of notice refers to a lack of notice that the issue 

would be litigated at the settlement conference, rather than a lack of notice that the evidence 

supporting her claims of disability and inability to work were disputed. Although plaintiff was 

not afforded notice that the issue would be litigated at the settlement conference, plaintiff 

certainly had notice that her disability and inability to work were at issue generally. Reviewing 

defendant’s motion for summary disposition and plaintiff’s response to the motion, we conclude 

that plaintiff had notice that the evidence supporting her assertions that she was disabled and 

unable to work were at issue. 

Plaintiff relies on Al-Maliki to support her argument that the trial court failed to provide 

her with proper notice that the issue would be litigated at the settlement conference. In that case, 

the sole issue raised in the defendant’s motion for summary disposition was related to a serious 

impairment of bodily function, and the defendant even conceded the issue of causation for 

purposes of the motion. Id. at 486. At the motion hearing, however, the trial court raised the 

issue of causation sua sponte, and ultimately granted summary disposition to the defendant on 

the ground that the plaintiff’s injuries were not caused by the automobile accident. Id. This 

Court reversed the trial court’s order granting summary disposition, reasoning that the plaintiff 

had no notice that causation would be at issue during the hearing. Id. at 487. This Court also 

noted that the plaintiff did not have a meaningful opportunity to be heard on the issue of 

causation, stating:

[T]he trial court was dismissive of plaintiff’s counsel and did not consider 

evidence plaintiff attempted to provide orally regarding causation in an attempt to 

avoid summary disposition. Also, plaintiff’s counsel sought time to present 

documentary evidence establishing causation since causation had now become an 

issue in the summary disposition stage of litigation. The trial court denied 

plaintiff time to present the evidence stating only that it was “too late now” 

without further explanation. And when plaintiff provided new evidence regarding 

causation at the time she moved for reconsideration, the trial court did not credit 

the evidence, finding that the motion for reconsideration merely presented the 

same issue ruled on by the court when granting summary disposition. [Id. at 489.]
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Al-Maliki is distinguishable because the trial court in this case did not raise a new issue 

and dismiss the lawsuit sua sponte. Instead, defendant orally renewed its motion that the trial 

court dismiss the case. Defendant’s request for dismissal raised the argument that plaintiff had

failed to provide sufficient evidence of her inability to work or current medical treatment. 

Additionally, plaintiff’s response to defendant’s motion for summary disposition demonstrates 

that plaintiff was fully aware that whether she could work and continued to receive medical 

treatment for her injury were at issue. Based on these facts, we conclude that the trial court’s 

dismissal of the case at the settlement conference did not violate plaintiff’s due-process rights.

B. PIP-BENEFIT CLAIMS

Plaintiff also argues that she presented valid claims for work-loss and replacementservices benefits. Therefore, plaintiff argues that the trial court erred when it granted summary 

disposition. We conclude that the trial court properly granted defendant summary disposition of 

plaintiff’s claims.

This Court reviews de novo a trial court’s decision to grant or deny summary disposition. 

Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). In this case, the trial court 

granted summary disposition under MCR 2.116(C)(10), which tests the factual sufficiency of the 

complaint. See Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A motion for 

summary disposition under MCR 2.116(C)(10) shall be granted if there is no genuine issue 

regarding any material fact and the movant is entitled to judgment as a matter of law. Bazzi v 

Sentinel Ins Co, 502 Mich 390, 398; 919 NW2d 20 (2018). “If the opposing party fails to 

present documentary evidence establishing the existence of a material factual dispute, the motion 

is properly granted.” Quinto v Cross & Peters Co, 451 Mich 358, 363; 547 NW2d 314 (1996).

1. WAGE-LOSS BENEFITS

Plaintiff argues that she presented a valid claim for wage-loss benefits. Yet, the trialcourt record demonstrates that plaintiff’s only evidence that she was unable to work was 

provided by her own deposition testimony and her affidavit. Plaintiff’s testimony and affidavit 

were insufficient to establish a genuine issue of material fact because plaintiff, as a lay person, 

could not properly testify to the medical conclusion that she could not work. See Gilbert v 

Daimler Chrysler Corp, 470 Mich 749, 787-791; 685 NW2d 391 (2004) (determining that a 

social worker’s testimony regarding the plaintiff’s inability to work, among other medical 

diagnoses, was inadmissible because the testimony was beyond the scope of the social worker’s 

expertise because the social worker did not have medical training or an ability to interpret 

medical records). 

Moreover, plaintiff stated at her deposition that she last received treatment for her injuries 

in June or July 2014. This contradicted plaintiff’s affidavit, which stated that she was currently 

receiving treatment for her injuries. “[A] witness is bound by his or her deposition testimony, 

and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for 

summary disposition.” Casey v Auto-Owners Ins Co, 273 Mich App 388, 396; 729 NW2d 277 

(2006). Accordingly, plaintiff’s affidavit and deposition testimony were insufficient to establish 

that she could not work.
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Additionally, Dr. Ahmad’s letter did not create a genuine issue of material fact because 

the letter comprises inadmissible hearsay under MRE 801, given that plaintiff offers the letter to 

prove that Dr. Ahmad is currently treating plaintiff for injuries from the accident. See MRE 

801(c) (stating that hearsay is a statement made outside of court that is offered to prove the truth 

of the matter asserted). The letter does not qualify under the business-records exception to 

hearsay, MRE 803(6), because the letter was not kept in the course of regularly conducted 

business, “as shown by the testimony of the custodian or other qualified witness, or by 

certification,” and was written at plaintiff’s request. See MRE 803(6). Moreover, the letter’s 

presumed typographic error—listing the accident as occurring in 2015, when the accident took 

place in 2013—indicates a lack of trustworthiness. See MRE 803(6). 

Even if Dr. Ahmad’s letter was admissible, the letter does not create a genuine issue of 

material fact because the letter does not address plaintiff’s ability to work. All the letter states is 

that Dr. Ahmad was treating plaintiff for injuries related to the accident. In addition, the letter is 

not an affidavit. An affidavit is “a document [that] must be (1) a written or printed declaration or 

statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party 

making it, taken before a person having authority to administer such oath or affirmation.” 

Holmes v Mich Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000). Dr. Ahmad’s 

letter did not have a confirmation of the facts, taken by oath, in front of a person with the 

authority to administer such an oath.

Moreover, plaintiff did not present any documentary evidence to establish her disability, 

and admitted that she had not possessed a disability prescription since 2014. Plaintiff’s 2014 

disability prescription was not relevant to whether she was unable to work because plaintiff’s 

work-loss claims were for the period of June 23, 2015 through November 30, 2016. The trial 

court properly granted summary disposition of plaintiff’s claim for wage-loss benefits.

2. REPLACEMENT SERVICES

Plaintiff also argues that she had a valid claim for replacement-services benefits. A 

“nonmoving party may not rely on mere allegations or denials in pleadings, but must set forth 

specific facts showing that a genuine issue of material fact exists. If the opposing party fails to 

present documentary evidence establishing the existence of a material factual dispute, the motion 

is properly granted.” Aho v Dep’t of Corrections, 263 Mich App 281, 288; 688 NW2d 104 

(2004) (citation omitted). Because plaintiff failed to provide any medical evidence supporting 

the necessity of replacement services, the trial court properly dismissed her claim for those

services.

In summary, the trial court properly determined that there was no genuine issue of 

material fact regarding plaintiff’s ability to work or her need for replacement services. The trial 

court did not err when it granted summary disposition in favor of defendant.

Affirmed.

/s/ Michael F. Gadola

/s/ Mark T. Boonstra

/s/ Brock A. Swartzle