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### STATE OF MICHIGAN

COURT OF APPEALS

RONALD THOMAS,

Plaintiff-Appellant, UNPUBLISHED July 12, 2016

v No. 326744 Wayne Circuit Court FRANKENMUTH MUTUAL INSURANCE CO., LC No. 14-008671-NF

Defendant-Appellee.

Before: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

P ER C URIAM

. Plaintiff appeals by right the order of the trial court granti ng summary disposition in favor of defendant and dismissing plaintiff’s claim for persona l injury protection (PIP) benefits. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff was involved in a motor vehicle accident on July 6, 2013. At the time of the accident, plaintiff was a named insured on a no-fault automobil e insurance policy issued by defendant. Plaintiff received treatment from several medical p roviders for injuries allegedly arising from the accident. Pla intiff’s treating physician, Dr. James Beale, instructed plaintiff not to drive for a period of time starting with the day of the acci dent through January 21, 2014. At his deposition, plaintiff denied driving an automobile at any t ime during that approximately six and one-half-month period. How ever, surveillance conducted by an employee of defendant on November 18, 2013 revealed plaintiff driving a vehicle on two s eparate occasions, despite also using non-emergency medical transportation 1 that same day.

After the accident, plaintiff claimed PIP benefits, including transportation benefits, under the policy issued by defendant. D efendant denied plaintiff’s c laim for PIP benefits. Plaintiff filed suit seeking payment of those benefits and a declaration of his rights under the no-fault act, MCL 500.3101 et seq.

Defendant moved the trial court for summary disposition pursua nt to MCR 2.116(C)(10), arguing that the fraud exclusion in the policy barred plaintiff ’s claims. The policy provided, in relevant part:

1 Plaintiff used Get Well Medica l Transportation to attend his p hysical therapy appointments.-2- We do not provide coverage for any ‘insured’ who has made fraud ulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy.

Defendant argued that the surveil lance videos that showed plain tiff driving during the time period proscribed by Dr. Beale, together with plaintiff’s depos ition testimony asserting otherwise, evidenced fraudulent statements and fraudulent condu ct, because a large part of plaintiff’s claimed PIP benefits were for transportation costs from Get Well. Plaintiff responded that defendant had not established several of the elements of f raud, including the materiality of plaintiff’s representation that he did not drive during the rel evant time period and the intent to defraud defendant.

At the hearing on defendant’s m otion, the trial court held, re lying on this Court’s opinion construing an identical fraud exclusion in Bahri v IDS Property Cas Ins Co , 308 Mich App 420, 864 NW2d 609 (2014), that plaintiff’s conduct in driving an aut omobile despite receiving medical transportation services, and plaintiff’s statements at his deposition, constituted fraud under the policy. The trial court thus granted summary disposi tion to defendant and dismissed plaintiff’s claims. This appeal followed.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for sum mary disposition. Moser v Detroit , 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary disposit ion is proper under MCR 2.116(C)(10) if “there is no genuine issue as to any materi al fact, and the moving party is entitled to judgment . . . as a matter of law.” We consider th e affidavits, pleadings, depositions, admissions, and other documentary evidence in the light most fa vorable to the nonmoving party. Liparoto Constr, Inc v Gen Shale Brick, Inc , 284 Mich App 25, 29; 772 NW2d 801 (2009). A genuine issue of material fact e xists when the record, giving t he benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

We review issues involving the interpretation of contractual l anguage de novo. Coates v Bastian Bros, Inc , 276 Mich App 498, 503; 741 NW2d 539 (2007).

III. ANALYSIS

Plaintiff argues that the trial court erred in determining tha t the fraud exclusion in the policy applied in the insta nt case. We disagree.

The rules of contract interpreta tion apply to the interpretatio n of insurance contracts. The language in an i nsurance contract should be rea d as a whole, and we construe the language to give effect to every word, clause, and phrase. When the policy language is clear, a c ourt must enforce the specific language of the contract. However, if an ambiguity exists, it should be constr ued against the insurer. [ Bahri , 308 Mich App at 424 (citations and quot ation marks omitted).]

This Court has explained the requirements for establishing frau d with regard to an insurance policy’s fraud exclusion (sometim es referred to as a “false swe aring” defense to coverage):-3- To void a policy because the insured has wilfully misrepresente d a material fact, an insurer must show that (1) the misrepresentation was materia l, (2) that it was false, (3) that the insured knew that it was false at the time it was made or that it was made recklessly, without any knowledge of its truth, and (4 ) that the insured made the material misrepresentation with the intention that the insurer would act upon it. A statement is material if it is reasonably relevant to the insurer's investigation of a claim. [ Id . at 424-425 (citation omitted).]

In Bahri , the plaintiff claimed replacement services as PIP benefits fr om her insurer. Id

. at 422. However, surveillance video taken during the time peri od in which the plaintiff claimed replacement services showed plaintiff performing many a ctions that were “inconsistent with her claimed limitations,” including driving. Id

. at 425. The policy at issue in Bahri contained a fraud exclusion iden tical to the one in the instant case. Id

. at 423-424.

The Bahri Court held that the surveillance video evidence belied “plainti ff’s assertion that she required replacement services” and “directly and speci fically” contradicted representations made by plaintiff in seeking replacement servic es. Id

. at 426. Thus, reasonable minds could not differ regarding whether plaintiff had made fra udulent representations of material fact for the purpose of recovering PIP benefits. Id

.

Bahri compels a similar conclusion in this case. Plaintiff’s claim for PIP benefits involves, in large part, a claim for transportation services du e to his purported inability to drive. Yet plaintiff was observed driving his car multiple times on th e same day he availed himself of medical transportation services. Further, when offered a chanc e to perhaps explain why he drove on that particular day, plaintiff instead represented multiple times that he had not driven at all during the relevant time period. These representations were th us “reasonably relevant to the insurer's investigation of a claim.” Bahri , 308 Mich App at 425. Plaintiff’s argument that Bahri is distinguishable because Bahri , in part, involved claims for replacement services that had no t actually been provided, is unavailing. The Bahri Court specifically noted that the surveillance belied the plaintiff’s assertion that she needed help with the tasks she was observed performing without help, including revealing that she was driving on a day that she stated that she required transportation assistance. Id

. at 425-426. The fact that plaintiff in this case in fact actua lly availed himself of transportation services on the day he was ob served does not defeat the fact that he was observed performing an activity “inconsistent with [his] claimed limitations” on a day that he asserted he required transportation. Id

. at 425. Further, we also find unpersuasive plaintiff’s argument that his re peated assertions during his de position that he di d not drive were innocent mistakes. If they were not knowing misrepresentations , then they were certainly reckless ones, in the face of the proof that he drove his car a t least twice on the same day he availed himself of transportation services. Id

. at 424-425.

Affirmed. As the prevailing part y, defendant may tax costs. MCR 7.219(A).

/s/ Kathleen Jansen /s/ Karen M. Fort Hood /s/ Mark T. Boonstra