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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UNPUBLISHED 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: WILDER, P.J., and MURPHY and O’CONNELL, JJ. 

PER CURIAM. 

 Plaintiff, The Detroit Medical Center (the medical center), appeals as of right the trial 

court’s order granting summary disposition in favor of defendant Michigan Property & Casualty 

Guaranty Association (the association). We reverse and remand for further proceedings. 

I. FACTUAL OVERVIEW 

 The medical center initiated this action under the no-fault act, 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 2010 while operating, without a 

license, a Jeep Liberty titled solely in the name of her fiancée, James Talison; the vehicle was 

“totaled” in the accident. In pre-litigation “examinations under 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 unequivocally and repeatedly expressed 

that Pinkney had been operating Talison’s vehicle at the time of the accident absent his permission 
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while he slept, that she had never previously been given permission by Talison to drive the Jeep, 

and that Pinkney did not drive Talison’s vehicles.1 

 Subsequently, in 2011 depositions taken during litigation, Pinkney and Talison testified that 

they had both lied in their respective EUOs after being informed by an attorney that the balance 

owing on the six-year loan used to purchase the Jeep a few months before the crash would only be 

paid off by American Fellowship if the unlicensed Pinkney had lacked permission to drive Talison’s 

vehicle. They directly, apologetically, and repeatedly acknowledged giving fabricated answers in 

the EUOs, emphasizing the motivation behind their lies.2 In their depositions, Pinkney and Talison 

now both adamantly insisted that Pinkney had contributed $4,000 of the $5,000 down payment on 

the Jeep, that she had her own personal set of keys to the vehicle, that she drove the Jeep nearly 

every day, that she had Talison’s permission to drive the vehicle whenever she wished, that she 

helped fund the monthly installment payments for the Jeep and the insurance premiums, and that 

Pinkney was operating the vehicle with Talison’s permission when 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 following the accident, Pinkney would be personally responsible for 

paying the debt.3

 

 This case presents the question whether a genuine issue of material fact exists regarding 

whether the medical center is entitled to recover personal protection insurance benefits, commonly 

referred to as PIP benefits, where the EUOs suggested that Pinkney 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. Also, Pinkney was not a named 

insured in the American Fellowship policy. 

2

 Pinkney also explained that she had felt intense pressure from Talison to inaccurately claim during 

her EUO that she had driven the Jeep without Talison’s permission. 

3

 Talison testified that he had previously been convicted of attempted insurance fraud in the early 

1980s. The record is not entirely clear regarding whether American 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 that they [American Fellowship] were 

going to pay for it, but then 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 insurance 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 reasonably believed that he or she was entitled to take 

and use the vehicle.The provision was subsequently amended pursuant to 2014 PA 

489, but it still generally precludes the recovery of PIP benefits by a person who 

operated a vehicle “that was taken unlawfully[.]” The construction of MCL 

500.3113(a) is not at issue in this case. 
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II. PROCEDURAL HISTORY 

 Although the record does not provide much clarity, it appears that in June 2011, the medical 

center commenced an action for no-fault PIP benefits against American Fellowship. The litigation 

depositions of Pinkney and Talison referred to above were taken in July 2011 during the suit against 

American Fellowship. However, American Fellowship apparently filed for bankruptcy protection, 

resulting in an automatic stay, and that litigation was left in limbo 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 Fellowship in the amount of $65,211, 

consisting of reasonable and customary charges relative to providing medical products and services 

to Pinkney for purposes of her care, recovery, and rehabilitation.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 the 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 disposition under MCR 

2.116(C)(10). The association summed up its argument as follows: 

 In the present action, the purpose of summary disposition would not be well 

served by allowing Ms. Pinkney and Mr. Talison to create factual issues regarding 

Ms. Pinkney’s unlawful taking of the Jeep in a subsequent deposition after they 

admitted in their initial EUO that she had no such permission. 

5

 In a response to a request for admission, the medical center admitted that American Fellowship 

had sent a letter to the medical center in February 2011 denying its request for the payment of PIP 

benefits on the basis of the unlawful-taking provision in MCL 500.3113(a). This precipitated the 

June 2011 lawsuit against American Fellowship that was later halted by the bankruptcy stay. 

6

 Under the MPCGAA, the association “has a duty to pay certain obligations 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 potentially catastrophic loss who have a right 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 vehicle 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 provide benefits up to the maximum prescribed. 
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 Mr. Talison’s and Ms. Pinkney’s EUO testimony is clear, intelligent and 

unequivocal. Their EUO testimony establishes that Mr. Talison never let Ms. 

Pinkney use the Jeep and that Mr. Talison did not give Ms. Pinkney any permission 

to use the Jeep at the time of the accident. Further, both admit that she was an 

unlicensed driver at the time of the accident. Because the Jeep was unlawfully taken 

by Ms. Pinkney, summary disposition is appropriate based on MCL [5]00.3113(a). 

 [T]he subsequent deposition testimony of Ms. Pinkney and Mr. Talison 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 disposition, raising the same 

arguments as the association, as well as other arguments that are not pertinent to his appeal. 

 The medical center responded by arguing that the deposition testimony of Pinkney and 

Talison, when viewed in conjunction with the EUOs, minimally created 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 maintained that Pinkney’s and 

Talison’s recanted EUOs were not definitively controlling, considering that the two had given valid 

and logical explanations in their depositions as to why they had lied in their EUOs. The medical 

center additionally submitted and relied on affidavits from three of Pinkney and Talison’s friends 

who averred that they had personal knowledge that around the timeframe 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. All three affiants averred that they 

saw Pinkney and Talison leave a party earlier on the night of the accident and that Pinkney drove 

the Jeep, with an inebriated Talison riding along as a passenger in the vehicle. Finally, the medical 

center maintained that to the extent that the association was arguing that Pinkney’s lack of a driver’s 

license in and of itself implicated MCL 500.3113(a), the argument 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 filed by the association and the 

MACF, ruling that a factual issue cannot be created by deposition testimony which asserts that prior 

sworn testimony was false. The trial court did not speak to the affidavits from Pinkney and 

Talison’s friends. Separate orders of summary dismissal were entered 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 contends on appeal, that the two EUOs, 

in and of themselves, were insufficient to trigger the bar to recovering PIP benefits under MCL 

500.3113(a); the medical center evidently accepts the association’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 driving a car that was taken contrary 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 with no intent to steal commits 

joyriding in violation of MCL 750.414, which also precludes recovery of PIP benefits under MCL 

500.3113[a]). 
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III. ANALYSIS 

A. STANDARD OF REVIEW AND PRINCIPLES GOVERNING MCR 2.116(C)(10) 

 This Court reviews de novo a trial court’s decision on a motion 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 motion 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 brought 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 pleadings, 

affidavits, and other documentary evidence, when viewed in a light 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 upon 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 substantively admissible evidence actually proffered relative 

to a motion for summary disposition under MCR 2.116(C)(10). [Citations and 

quotation marks omitted.] 

B. PERTINENT UNDERLYING LEGAL PRINCIPLES 

 In Chiropractors Rehab Group, PC v State Farm Mut Auto Ins Co, 313 Mich App 113, __; 

__ NW2d __ (2015); slip op at 6, this Court recently held: 

 [G]iven the text of MCL 500.3112, especially when read in conjunction 

with MCL 500.3105, 500.3107, and 500.3157, and this Court's previous 

interpretations of the language, we conclude that the statutory scheme of the nofault act indicates that the Legislature intended to confer standing on a healthcare 

provider to bring a claim against an insurer in order to enforce its right to be 

reimbursed for medical services rendered to an injured party insured 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 party's medical expenses under the no-

 

9

 We note that in an order granting leave to appeal entered by our 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 against a no-fault insurer for no-fault benefits.” 
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fault act is dependent upon the insured'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 treatment for Pinkney is dependent on 

whether Pinkney would be eligible for PIP benefits. 

C. DISCUSSION 

 The central issue in this case as presented by the parties revolves 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 plaintiff, purportedly signaling that it 

was clear for the plaintiff to cross the street in the area where 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 dividing line, but no further and not into the 

lane of traffic where the plaintiff was eventually struck by another 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 contradictory 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 precursor to MCR 2.116(C)(10), the 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 ability to present a 

case was challenged. His affidavit merely restated his pleadings. Deposition 

testimony damaging to a party's case will not always result in summary judgment. 

However, when a party makes statements of fact in a “clear, intelligent, unequivocal” 

manner, they should be considered as conclusively binding against him in the 

absence of any explanation or modification, or of a showing of mistake or 

improvidence. The purpose of GCR 1963, 117 is to allow the trial 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 affidavit after giving 

damaging testimony in a deposition. 

 “If a party who has been examined at length on deposition could raise an 

issue of fact simply by submitting an affidavit contradicting his 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 reason for the contradiction we would be 

constrained to reverse. We read his affidavit as a general allegation without 

explanation. [Citations omitted; see also Dykes v William Beaumont Hosp, 246 Mich 

App 471, 480-481; 633 NW2d 440 (2001) (quoting this passage from Gamet and 

citing a litany of cases that have recognized the principle espoused in Gamet).] 

 In Hazelton v Lustig, 164 Mich App 164, 168; 416 NW2d 373 (1987), this Court explained 

that the holding in Gamet was “premised upon an underlying policy to preclude a party from 

contriving factual issues by the simple expedient of completing an affidavit when that party's 
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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 and 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 substantive consideration of certain affidavits, or a rule giving them no 

weight, in the context of deciding a motion for summary disposition relative to the question of 

whether a genuine issue of material 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 pre-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 contradicting their 

EUOs. Rather, Pinkney and Talison contradicted their EUOs in full 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 exploration does not occur in an affidavit. 

Second, under the Gamet rule, clear, intelligent, and unequivocal statements of fact are 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 Pinkney and Talison was fabrication 

primarily motivated by financial gain, it was nevertheless an explanation; 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 Talison to lie, thereby providing another 

“explanation” for the shift in her testimony. 

 Next, this case does not present a situation wherein a party undermines 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 binding 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 conducted without the involvement or 

presence of the medical center, followed by the medical center’s commencement of litigation and 

participation in discovery that entailed the nonparty depositions at issue. It would be fundamentally 

unfair to apply the Gamet rule to the medical center in that procedural posture, given that the 

medical center had absolutely nothing to do with the EUOs and was 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 “affidavits . . . 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 distinctions 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 introduce its own evidence in support of its 

lawsuit. We decline to couch our ruling in constitutional terms and simply hold that the Gamet rule 

is inapplicable in this case. 
-8- 

not mean that the evidence available to the medical center to show that Pinkney was so eligible 

should be limited because of Pinkney’s supposed lies. The Gamet rule is plainly intended to 

prevent gamesmanship; however, the medical center did not participate in any gamesmanship. 

 The determination of Pinkney’s eligibility for PIP benefits is dependent on evidence 

pertaining to permission to drive the Jeep, MCL 500.3113(a), and, 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 suit 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 or utilize the deposition testimony 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 medical center. Again, the Gamet rule is 

ultimately an evidentiary rule of preclusion applicable to summary disposition motions, and there is 

no basis, given its purpose, to employ it here against the medical center.13 

 Finally, the trial court wholly failed to take into consideration the affidavits from Pinkney 

and Talison’s friends, which, while not directly speaking to the question of whether Pinkney had 

permission from Talison to drive the Jeep on the particular occasion at issue, lent 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 passenger in the vehicle. Because 

we have ruled that the deposition testimony by Pinkney and Talison 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 there 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 fact 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 circumstances of this case. Moreover, the trial court erred in not considering 

the affidavits by the three friends. In sum, the trial court erred in granting summary disposition in 

favor of the association. 

 

13 We recognize that Pinkney will benefit if the medical center is ultimately successful in its suit; 

nevertheless, the Gamet rule should not be employed to deprive an innocent party such as 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 material fact would still be lacking if the 

deposition testimony is considered. The association makes a brief 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 court in an earlier 

proceeding accepted a party’s position as true). 
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 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