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### STATE OF MICHIGAN

COURT OF APPEALS

THE DETROIT MEDICAL CENTER,

Plaintiff-Appellant, UNPUBLISHED July 26, 2016

v No. 326793 Wayne Circuit Court

MICHIGAN PROPERTY & CASUALTY GUARANTY ASSOCIATION, LC No. 13-015970-NF

Defendant-Appellee,
and

MICHIGAN ASSIGNED CLAIMS FACILITY,

Defendant.

Before: W ILDER , P.J., and M URPHY and O’C ONNELL , JJ.

P ER C URIAM

.

Plaintiff, The Detroit Medical Center (the medical center), ap peals as of right the trial court’s order granting summary disposition in favor of defendan t Michigan Property & Casualty Guaranty Association (the associ ation). We reverse and remand for further proceedings.

I. FACTUAL OVERVIEW

The medical center initiated this action under the no-fault ac t, MCL 500.3101 et seq.

, to recover expenses incurred by the medical center in providing care and treatment for Danielle Pinkney, who was injured in a motor vehicle accident in June 20 10 while operating, without a license, a Jeep Liberty titled solely in the name of her fiancé e, James Talison; the vehicle was “totaled” in the accident. In pre-litigation “examinations und er oath” (EUOs) conducted in September 2010 by American Fellowship Mutual Insurance Company (American Fellowship) –
Talison’s no-fault insurer of the Jeep – Pinkney and Talison un equivocally and repeatedly expressed that Pinkney had been operating Talison’s vehicle at the time o f the accident absent his permission-2- while he slept, that she had never previously been given permis sion by Talison to drive the Jeep, and that Pinkney did not drive Talison’s vehicles. 1

Subsequently, in 2011 depositions taken during litigation, Pin kney and Talison testified that they had both lied in their respective EUOs after being informe d by an attorney that the balance owing on the six-year loan used to purchase the Jeep a few mont hs before the crash would only be paid off by American Fellowship if the unlicensed Pinkney had l acked permission to drive Talison’s vehicle. They directly, apologe tically, and repeatedly acknowl edged giving fabricated answers in the EUOs, emphasizing the motivation behind their lies. 2 In their depositions, Pinkney and Talison now both adamantly insisted thatPinkney had contributed $4,000 of the $5,000 down payment on the Jeep, that she had her own personal set of keys to the vehi cle, that she drove the Jeep nearly every day, that she had Talison’s permission to drive the vehic le whenever she wished, that she helped fund the monthly installm ent payments for the Jeep and t he insurance premiums, and that Pinkney was operating the vehicle with Talison’s permission whe n the accident occurred. Pinkney and Talison recognized that if American Fellowship did not pay the medical center’s bills stemming from Pinkney’s medical care foll owing the accident, Pinkney wou ld be personally responsible for paying the debt. 3

This case presents the question whether a genuine issue of mat erial fact exists regarding whether the medical center is entitled to recover personal prot ection insurance benefits, commonly referred to as PIP benefits, where the EUOs suggested that Pink ney had used Talison’s Jeep after having taken it unlawfully, MCL 500.3113(a), 4 but where the subsequent deposition testimony reflected the contrary.

1 Pinkney and Talison appeared for the EUOs without counsel. Al so, Pinkney was not a named insured in the American Fellowship policy.

2 Pinkney also explained that she h ad felt intense pressure from Talison to inaccurately claim during
her EUO that she had driven the J eep without Talison’s permissi on.

3 Talison testified that he had previously been convicted of att empted insurance fraud in the early 1980s. The record is not entirely clear regarding whether Amer ican Fellowship paid for the damages to the Jeep or the balance on the outstanding loan, but it appears that a payment was made. Talison mentioned in his deposition, “And then I found out thatthey [American Fellowship] were going to pay for it, but the n it just took so long.”

4 At the time of the accident, MCL 500.3113(a) provided:

A person is not entitled to be paid personal protection insura nce benefits for accidental bodily injury if at the time of the accident any of the following
circumstances existed:

(a) The person was using a motor vehicle . . . which he or she had taken unlawfully, unless the person reas onably believed that he or sh e was entitled to take and use the vehicle.The provision was subsequently amended purs uant to 2014 PA 489, but it still generally preclude s the recovery of PIP benef its by a person who operated a vehicle “that was taken unlawfully[.]” The construc tion of MCL 500.3113(a) is not at issue in this case.-3- II. PROCEDURAL HISTORY

Although the record does not pr ovide much clarity, it appears that in June 2011, the medical center commenced an action for no-fault PIP benefits against Am erican Fellowship. The litigation depositions of Pinkney and Talison referred to above were takenin July 2011 during the suit against American Fellowship. However, American Fellowship apparently f iled for bankruptcy protection, resulting in an automatic stay, and that litigation was left inlimbo absent resolution. On December 12, 2013, the medical center filed the complaint in the instant suit. In the complaint, the medical center indicated that American Fellowship had been the highest priority insurer and that the medical center had submitted proof-of-loss claims to American Fellowshi p in the amount of $65,211, consisting of reasonable and customary charges relative to prov iding medical products and services to Pinkney for purposes of her care, recovery, and rehabilitati on. 5 The complaint alleged that American Fellowship was later declared insolvent and that under the Michigan Property and Casualty Guaranty Association Act (MPCGAA), MCL 500.7901 et seq ., the association assumed American Fellowship’s obligation to pay no-fault benefits to or on behalf of Pinkney. 6 Aside from the association, the medical center also named as a defendant t he Michigan Assigned Claims Facility (MACF), see MCL 500.3171 et seq

. 7 The medical center sought a judgment declaring that the association and/or the MACF (or its insurer assignee) were liable for the payment of PIP
benefits.

In January 2015, the association filed a motion for summary di sposition under MCR 2.116(C)(10). The association summed up its argument as follow s:

In the present action, the purpose of summary disposition woul d not be well served by allowing Ms. Pinkney and Mr. Talison to create factua l issues regarding Ms. Pinkney’s unlawful taking of the Jeep in a subsequent depos ition after they admitted in their initial EUO that she had no such permission.

5 In a response to a request fo r admission, the medical center a dmitted that American Fellowship
had sent a letter to the medi cal center in February 2011 denyin g its request for the payment of PIP
benefits on the basis of the unl awful-taking provision in MCL 5 00.3113(a). This precipitated the June 2011 lawsuit against American Fellowship that was later ha lted by the bankr uptcy stay.

6 Under the MPCGAA, the association “has a duty to pay certain o bligations of insolvent insurers
that come within the act’s definition of covered claims.” Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n , 456 Mich 590, 594; 575 NW2d 751 (1998). “The act is designed to protect persons from potentiall y catastrophic loss who have a r ight to rely on the existence of an insurance policy, the insureds and persons with claims against the insured.” Id. at 601 (citation omitted).

7 MCL 500.3172(1) provides in part:

A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicl e as a motor vehicle in this state may obtain personal protection insurance benefits through the assigned claims plan if . . . the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provi de benefits up to the maximum p rescribed.-4- Mr. Talison’s and Ms. Pinkney’ s EUO testimony is clear, intell igent and unequivocal. Their EUO testimony establishes that Mr. Talison n ever let Ms. Pinkney use the Jeep and that Mr. Talison did not give Ms. Pink ney any permission to use the Jeep at the time of the accident. Further, both admi t that she was an unlicensed driver at the time of the accident. Because the Jeep was unlawfully taken by Ms. Pinkney, summary disposit ion is appropriate based on MCL [5]00.3113(a).

[T]he subsequent deposition tes timony of Ms. Pinkney and Mr. T alison in which they claim to have “lied” in their initial EUO is not an appropriate basis for creating questions of fact.[ 8 ]

In February 2015, the MACF filed its own motion for summary dis position, raising the same arguments as the association, as well as other arguments that a re not pertinent to his appeal.

The medical center responded by arguing that the deposition te stimony of Pinkney and Talison, when viewed in conjunction with the EUOs, minimally cr eated an issue of fact regarding whether Pinkney had permission to drive the Jeep, i.e., whether she had unlawfully taken the vehicle for purposes of MCL 500.3113(a). The medical center ma intained that Pinkney’s and
Talison’s recanted EUOs were not definitively controlling, cons idering that the two had given valid and logical explanations in their depositions as to why they ha d lied in their EUOs. The medical center additionally submitted and relied on affidavits from thr ee of Pinkney and Talison’s friends who averred that they had personal knowledge that around the ti meframe of the accident, Pinkney regularly drove the Jeep, sometimes with Talison in the vehicle , and that based on their observations, Pinkney drove the vehicle whenever she wished. A ll three affiants averred that they saw Pinkney and Talison leave a party earlier on the night of t he accident and that Pinkney drove the Jeep, with an inebriated Talison riding along as a passenge r in the vehicle. Finally, the medical
center maintained that to the ext ent that the association was a rguing that Pinkney’s lack of a driver’s license in and of itself impli cated MCL 500.3113( a), the argume nt lacked merit because the caselaw reflected that MCL 500.3113(a) concerns an unlawful taking of a vehicle, not the unlawful operation or use of a vehicle.

The trial court granted the motions for summary disposition fi led by the association and the MACF, ruling that a factual issue cannot be created by depositi on testimony which asserts that prior sworn testimony was false. The trial court did not speak to th e affidavits from Pinkney and Talison’s friends. Separate orde rs of summary dismissal were e ntered with respect to the association and the MACF, and the medical center appeals as of right only the order granting summary disposition to the association.

8 We note that the medical center did not argue below, nor conte nds on appeal, that the two EUOs, in and of themselves, were insufficient to trigger the bar to r ecovering PIP benefits under MCL 500.3113(a); the medical center evidently accepts the associati on’s view that the EUOs evidence an unlawful taking of the Jeep. See Rambin v Allstate Ins Co , 495 Mich 316, 319, 332; 852 NW2d 34 (2014) (a person injured while dri ving a car that was taken con trary to the express prohibition of the
vehicle’s owner cannot recover PIP benefits under MCL 500.3113[ a]; and a person who knowingly
takes and uses a vehicle absent authority from the owner but wi th no intent to steal commits joyriding in violation of MCL 750.414, which also precludes rec overy of PIP benefits under MCL 500.3113[a]).-5- III. ANALYSIS

A. STANDARD OF REVIE W AND PRINCIPLES GOVERNING MCR 2.116(C)(1 0)

This Court reviews de novo a trial court’s decision on a motio n for summary disposition, Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011), as well as questions of law in general, Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n , 456 Mich 590, 610; 575 NW2d 751 ( 1998). With respect to a mo tion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court in Pioneer State Mut Ins Co v Dells

, 301 Mich App 368, 377; 836 NW2d 257 (2013), observed:

In general, MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. A motion broug ht under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pl eadings, affidavits, and other documentary evidence, when viewed in a li ght most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue up on which reasonable minds might differ. The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). A court may only consider substantiv ely admissible evidence actua lly proffered relative to a motion for summary disposition under MCR 2.116(C)(10). [Ci tations and quotation marks omitted.]

B. PERTINENT UNDERLY ING LEGAL PRINCIPLES

In Chiropractors Rehab Group, PC v State Farm Mut Auto Ins Co, 313 Mich App 113, __; __ NW2d __ (2015); slip op at 6, t his Court recently held:

[G]iven the text of MCL 500.3112, especially when read in conj unction with MCL 500.3105, 500.3107, and 500.3157, and this Court's pre vious interpretations of the language, we conclude that the statutoryscheme of the nofault act indicates that the Legislature intended to confer sta nding on a healthcare provider to bring a claim against an insurer in order to enforc e its right to be reimbursed for medical services rendered to an injured party in sured under the applicable no-fault policy.[ 9 ]

Citing numerous supporting opinions, the Chiropractors Rehab panel further concluded “that a healthcare provider's ability to recover an injured par ty's medical expenses under the no-

9 We note that in an order granting leave to appeal entered by o ur Supreme Court in Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co , __ Mich __; __ NW2d __, issued May 27, 2016 (Docket No. 152758), the Court directed the parties to brief, in part, “whether a healthcare provider has an independent or derivative claim a gainst a no-fault insurer for no-fault benefits.”-6- fault act is dependent upon the in sured's eligibility for such benefits.” Id. at __; slip op at 9. Accordingly, whether the medical center is entitled to recover PIP benefits as reimbursement for costs associated with providing medical services, care, and tre atment for Pinkney is dependent on whether Pinkney would be elig ible for PIP benefits.

C. DISCUSSION

The central issue in this case as presented by the parties rev olves around a principle that this Court alluded to many years ago in Gamet v Jenks , 38 Mich App 719; 197 NW2d 160 (1972). In

Gamet , the plaintiff was struck by a vehicle while walking across a street, and his complaint alleged that another driver, one of the defendants, had waived to the p laintiff, purportedly signaling that it was clear for the plaintiff to cross the street in the area whe re he was then hit. However, in his deposition, the plaintiff testified that he read the defendant’ s hand signal as meaning that he could cross in front of the defendant’s truck and up to a lane dividi ng line, but no further and not into the lane of traffic where the plaintiff was eventually struck by an other vehicle. In a subsequent affidavit, the plaintiff averred, consistent with his complaint , that he had relied on the defendant’s hand signal in proceeding into the lane of traffic where he was hit. The trial court granted the defendant’s motion for summary disposition, rejecting the contr adictory affidavit supplied by the plaintiff. Id. at 721-722, 725. On appeal, this Court indicated that although it would typically be error to disregard the plaintiff’s affidavit in the context of deciding a motion for summary disposition brought under the pre cursor to MCR 2.116(C)(10), th e rebutting affidavit was
“insufficient for consideration.” Id. at 725-726. The Gamet panel explained its conclusion as
follows:

As a result of his own deposition testimony, plaintiff's abili ty to present a case was challenged. His affidavit merely restated his pleading s. Deposition testimony damaging to a party's case will not always result in summary judgment. However, when a party makes stat ements of fact in a “clear, int elligent, unequivocal” manner, they should be considered as conclusively binding again st him in the absence of any explanation or modification, or of a showing of mistake or improvidence. The purpose of G CR 1963, 117 is to allow the tria l judge to determine whether a factual issue exists. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an af fidavit after giving damaging testimony in a deposition.

“If a party who has been examined at length on deposition coul d raise an issue of fact simply by submitting an affidavit contradicting h is own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”

[Had] plaintiff offered any reas on for the contradiction we wo uld be constrained to reverse. We read his affidavit as a general alle gation without explanation. [Citations omitted; see also Dykes v William Beaumont Hosp , 246 Mich App 471, 480-481; 633 NW2d 440 (2001) (quoting this passage fro m Gamet and citing a litany of cases that ha ve recognized the principle esp oused in Gamet ).]

In Hazelton v Lustig , 164 Mich App 164, 168; 416 NW2d 373 (1987), this Court explai ned that the holding in Gamet was “premised upon an underlying policy to preclude a party fro m contriving factual issues by the simple expedient of completing an affidavit when that party's-7- unfavorable deposition testimony has already indicated that the assertion in the affidavit is likely to be vexatious and ill-founded.” For purposes of this opinion an d ease of reference, we shall refer to the principle enunciated in Gamet as the “ Gamet rule.” The Gamet rule is, effectively, an evidentiary rule precluding subs tantive consideration of certai n affidavits, or a rule giving them no weight, in the context of deciding a motion for summary disposi tion relative to the question of whether a genuine issue of mater ial fact exists in a given case

. 10

Here, the procedural posture and circumstances of this case do not call for the invocation or imposition of the Gamet rule. First, assuming an analogy between a deposition and a pr e-litigation EUO for purposes of the Gamet rule, 11 the medical center is not relying on subsequent and expedient affidavits in which Pinkney and Talison simply set forth averments contra dicting their EUOs. Rather, Pinkney and Talison contradicted their EUOs in f ull blown depositions, where the attorneys were able to extensively explore all factual aspects concerning and surrounding the Jeep, permission to drive the Jeep, and the prior EUOs; such explorat ion does not occur in an affidavit. Second, under the Gamet rule, clear, intelligent, and unequivocal statements of fact ar e only conclusively binding “in the absence of any explanation[.]” Gamet , 38 Mich App at 726 (emphasis added). While the explanation for the turnaround given by Pink ney and Talison was fabrication primarily motivated by financia l gain, it was ne vertheless an e xplanation; they did not simply testify that there was permission. Further, as noted earlier, Pinkney indicated in her deposition that she was under duress during her EUO, as she was pressured by Taliso n to lie, thereby providing another “explanation” for the s hift in her testimony.

Next, this case does not present a situation wherein a party u ndermines his or her own case in deposition testimony and then that same party seeks to save the case by filing a self-serving document in which he or she contradicts the damaging deposition testimony. The Gamet panel spoke in terms of a deposition statement being conclusively bin ding against a party deponent

. Gamet , 38 Mich App at 726. In the instant case, Pinkney and Talison , neither of whom were a party, provided sworn testimony in their EOUs, which were condu cted without the involvement or presence of the medical center, followed by the medical center’ s commencement of litigation and participation in discovery tha t entailed the nonparty depositio ns at issue. It would be fundamentally unfair to apply the Gamet rule to the medical center in that procedural posture, given th at the medical center had absolutely nothing to do with the EUOs and w as entitled to engage in its own discovery under MCR 2.301 et seq. The medical center did not contrive factual issues. 12 We fully appreciate that the medical center’s entitlement to recover PIP benefits is dependent upon Pinkney’s eligibility for such benefits, Chiropractors Rehab , 313 Mich App at __; slip op at 9, but this does

10 We do note that MCR 2.116(G)(5) provides, in part, that “affid avits . . . must be considered by the court when [a] motion is based on subrule (C)(1)-(7) or (10 ).” (Emphasis added.) One could argue that the Gamet rule runs afoul of the court rule; however, we decline to reach that issue, which has not been presented to us.

11 In Thomson v State Farm Ins Co , 232 Mich App 38, 54-55 n 9; 592 NW2d 82 (1998), this Court
discussed the various distinc tions between EUOs and depositions

.

12 On appeal, the medical center contends that its constitutional due process rights are violated if the EUOs are deemed controlling and it is not permitted to introduc e its own evidence in support of its lawsuit. We decline to couch our ruling in constitutional term s and simply hold that the Gamet rule is inapplicable i n this case.-8- not mean that the evidence available to the medical center to s how that Pinkney was so eligible should be limited because of Pinkney’s supposed lies. The Gamet rule is plainly intended to prevent gamesmanship; however, t he medical center did not parti cipate in any gamesmanship.

The determination of Pinkney’s eligibility for PIP benefits is dependent on evidence pertaining to permission to d rive the Jeep, MCL 500.3113(a), an d, generally speaking, the evidence that can be considered in any given case is always subject to the particular circumstances, context, and facets of the case, such that evidence admissible in one su it may not necessarily be admissible in another action, although the same issue is presented. Thus, assuming for the sake of argument that, because of the Gamet rule, Pinkney could not rely on o r utilize the deposition testi mony to show eligibility had she filed a direct action for PIP benefits , it does not necessarily follow that the deposition testimony is likewise restricted in a suit by the me dical center. Again, the Gamet rule is ultimately an evidentiary rule of preclusion applicable to summ ary disposition motions, and there is no basis, given its purpose, to emp loy it here against the medi cal center. 13

Finally, the trial court wholly failed to take into considerat ion the affidavits from Pinkney and Talison’s friends, which, while not directly speaking to th e question of whether Pinkney had permission from Talison to drive the Jeep on the particular occ asion at issue, l ent support for a conclusion that Pinkney generally had free reign to operate the vehicle. Indeed, all three affiants stated that they saw Pinkney and Talison leave a party earlier on the night of the accident and that Pinkney drove the Jeep with Talison, who was inebriated, as a p assenger in the ve hicle. Because we have ruled that the depos ition testimony by Pinkney and Tali son should have been considered by
the trial court and was not barred from consideration under the Gamet rule, we decline to determine whether the friends’ affidavits, in and of themselves, created a genuine issue of material fact on the question of permission and whether t here was an unlawful taking of the Jeep.

IV. CONCLUSION

The trial court erred in not considering Pinkney’s and Talison ’s deposition testimony for purposes of determining whether a genuine issue of material fac t existed, MCR 2.116(C)(10), with respect to the application of MCL 500.3113(a). 14 The Gamet rule does not apply given the procedural posture and circumsta nces of this case. Moreover, t he trial court erred in not considering the affidavits by the three friends. In sum, the trial court e rred in granting summary disposition in
favor of the association.

13 We recognize that Pinkney will benefit if the medical center i s ultimately successful in its suit; nevertheless, the Gamet rule should not be employed to deprive an innocent party such a s the medical center from attempting to make its case simply because of a potential indirect benefit to a purported wrongdoer.

14 The association does not argue that a genuine issue of materia l fact would still be lacking if the deposition testimony is considered. The association makes a br ief mention of judicial estoppel, but then concedes that the doctrine is inapplicable in this case. See Opland v Kiesgan , 234 Mich App 352, 362; 594 NW2d 505 ( 1999) (doctrine requires, in part, some indication that a cou rt in an earlier proceeding accepted a party’s position as true).-9- Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, taxable costs are awarded to the medical
center under MCR 7.219.

/s/ Kurtis T. Wilder /s/ William B. Murphy
/s/ Peter D. O'Connell