-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

JERMAINE JORDAN,

Plaintiff-Appellant/Cross Appellee, UNPUBLISHED February 9, 2017

v No. 329305 Genesee Circuit Court STATE FARM FIRE AND CASUALTY, LC No. 13-099691-CK

Defendant-Appellee/Cross Appellant.

Before: W ILDER , P.J., and C AVANAGH and K.F. K ELLY , JJ.

P ER C URIAM

. In this insurance fraud matter, plaintiff, Jermaine Jordan, ap peals as of right an order of no cause of action entered following the jury trial below. Def endant, State Farm Fire and Casualty (State Farm), claims a cross-appeal from that same ord er. We affirm.

I. FACTUAL BACKGROUND

This case arises out of plaintiff’s insurance claim for fire l oss resulting from an intentionally set fire that destroyed a residential property (t he subject property) that was owned by plaintiff and insured under a State Farm homeowner’s insuran ce policy (the homeowner’s policy). According to plaintiff, on the date of the fire he “w as out of town and . . . received a phone call from a friend” informing him of the fire. Plaintiff subsequently filed a claim for benefits, which State Farm promptly denied. State Farm’s denia l was based on its conclusions that the fire was a result of arson that plaintiff either perso nally committed or arranged for, and that plaintiff lied about the ars on, made other material misrep resentations to State Farm about the fire, and concealed evidence.

In response to plaintiff’s complaint in this matter, State Far m asserted, along with its answer, the following affirmative defense:

SEVENTH DEFENSE (Application of P olicy Conditions)

The policy in question contai ns the following language:-2- SECTION I – CONDITIONS

* * *

13. Intentional Acts. If you or any person insured under this policy causes or procures a loss to property covered under this policy for the purpose of obtaining insurance benefits, then th is policy is void and we will not pay you or any other insured for this loss.

SECTION I AND SECTION II - CONDITIONS

* * *

2. Concealment or Fraud. This policy is void as to you and any other insured, if you or any other insured under this polic y has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance, whether before or afte r a loss.

* * *

Contrary to the policy provisions precedent to recovery, the P laintiff has failed to provide requested doc umentation, completely submit to an Examination Under Oath and fully/accurately respond to the questions and re quest for documents submitted at that time, failed to present a proper Sw orn Statement in Proof of Loss, misrepresented and concealed material facts and circumstances relating to the loss, intentionally caused or procured the loss for purposes of obtaining insurance benefits, and/or otherwise committed fraud relating to the loss. Having violated these cond itions precedent to recovery, Defendant is entitled to judgment in its favor as a matter of law.

The policy also provides that no one may bring a legal action against the Defendant under this policy until such time as there has been f ull compliance with all of the terms and conditions of the policy. Plaintiff has a lso violated this policy condition and, therefore, Defenda nt is entitled to judgment in its favor as a matter of law for this reason as well.

Plaintiff neither moved to strike the above affirmative defense nor filed a motion seeking a more definite statement of that defense.

Following discovery, the matter proceeded to a jury trial, whi ch spanned several days. After the jury received its instructions and retired for delibe rations, plaintiff’s counsel placed an objection on the record “to the fraud or misrepresentation char ge and [it] being one of the instructions on the jury verdict,” but counsel did not explain the grounds for his objection, instead noting that the matter had previously been discussed in chambers. Following its deliberations, the jury returned a verdict indicating (1) that plaintiff did not “have a guilty connection with the fire of March 26, 2012,” but (2) that plain tiff did “commit false swearing or-3- misrepresent or conceal material facts . . . regarding [his] lo ss or any aspect of his for insurance proceeds[.]” Accordingly, the tri al court entered an order of no cause of action ag ainst plaintiff.

II. ANALYSIS

On appeal, plaintiff argues that State Farm asserted fraud as an affirmative defense but failed to plead that defense with the specificity required unde r MCR 2.112(B)(1) (“In allegations of fraud or mistake, the circumstances constituting fraud or mi stake must be stated with particularity.”). Thus, plain tiff contends, it was improper fo r the trial court “to submit the putative issue of fraud to the jury.” We hold that plaintiff f orfeited this unpreserved error by failing to timely raise it.

“Generally, an issue is not properly preserved if it is not ra ised before, and addressed and decided by, the trial court.” Hines v Volkswagen of America, Inc , 265 Mich App 432, 443; 695 NW2d 84 (2005). More specifically, however, MCR 2.512(C) provi des, “A party may assign as error the giving of or the failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict . . . stating specifically the matter to which the party objects and the grounds for the objection .” (Emphasis added.) Although plaintiff objected on the record, he did so only after the jury had already retire d for deliberations. Moreover, plaintiff failed to state the grounds supporting his objection, instead merely stating that the parties had previously “discussed” the matter “in chambers.” T hus, this issue is unpreserved and is reviewed for plain error aff ecting plaintiff’s substantial r ights. See McNeel v Farm Bureau Gen Ins Co of Mich , 289 Mich App 76, 89; 795 NW2d 205 (2010).

As an initial matter, we note that plaintiff has failed to cit e any precedent indicating that the pleading requirement set forth by MCR 2.112(B)(1) is applic able to affirmative defenses in the first instance. Generally, that rule “applies only to the original pleadings opening a case,” Williams v Williams , 214 Mich App 391, 395; 542 NW2d 892 (1995) (emphasis added), and affirmative defenses do not qualify as “pleadings” under our co urt rules, MCR 2.110(A); McCracken v City of Detroit , 291 Mich App 522, 527; 806 NW2d 337 (2011). 1

In any event, we need not decide the issue because, even assum ing, arguendo, that MCR 2.112(B)(1) does apply to affirmative defenses, plaintiff is nevertheless unent itled to appellate relief. “[A] failure to timely assert a right constitutes a fo rfeiture.” Nexteer Auto Corp v Mando America Corp , 314 Mich App 391, 395; 886 NW2d 906 (2016). Despite the fact that State Farm filed its affirmative defenses in March 2013, plaintiff failed to pose any objection to those defenses before the jury trial, which began more than two years later. Indeed, plaintiff waited

1 But see P R Post Corp v Maryland Cas Co , 403 Mich 543, 553; 271 NW2d 521 (1978) (“We note that our court rules require that the facts constituting t he affirmative defense of fraud be stated with particularity. GCR 1963, 111.7 and 112.2.”). See also Andres, ex rel Phillips v State Farm Mut Auto Ins Co , 485 Mich 903, 905 (2009) (K ELLY , C.J., dissenting) (“[E]ven if the paragraph were intended to plead fraud as an affirmative defens e, the pleading unquestionably fails to state with particularity the circumstances of the frau d. Thus, defendant’s affirmative defense of fraud, if any, is hopele ssly deficient under MCR 2.1 12(B).”) (emphasis added).-4- until the end of the trial—after the jury had already been inst ructed and had begun deliberations—to place an objection on the record regarding Sta te Farm’s fraud defense. And even then, plaintiff failed to state the grounds for his object ion. Allowing plaintiff to proceed with his instant claim of error would contravene the well-estab lished rule that parties must not be permitted to harbor error as an appellate parachute. See, e.g.

, Loutts v Loutts , 298 Mich App 21, 36; 826 NW2d 152 (2012) (“It is unfair to harbor error and use it as an appellate parachute.”). We refuse to countenance such gamesmanship in litigation.

Furthermore, even if we were to decide that State Farm’s fraud defense was not stated with sufficient particularity to satisfy MCR 2.112(B)(1), plain tiff has failed to demonstrate that he was prejudiced by that error. “To avoid forfeiture under th e plain error rule, three requirements must be met: 1) the error must have occurred, 2) t he error was plain, i.e., clear or obvious, 3) and the plain error a ffected substantial rights.” Demski v Petlick , 309 Mich App 404, 427; 873 NW2d 596 (2015) (quotation marks and citations omitted ). Had plaintiff timely objected, State Farm most likely would have been permitted to a mend its affirmative defenses to elaborate on the factual basis underlying its fraud defense. S ee Southeast Mich Surgical Hosp, LLC v Allstate Ins Co , ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 323425 ); slip op at 3 (noting that, while “affirmative defenses are not pleadings, the court rules unambiguously permit them to be amended in the same manner as p leadings,” and motions to amend such defenses “should be granted as a matter of course so long as doing so would not prejudice the plaintiff.”) (quot ation marks, citations, and ita licized emphasis omitted). Plaintiff has failed to explain how he was allegedly harmed by the purpor ted error, how a more thoroughly explained affirmative defense would have impacted hi s trial strategy, and how the lack of such an explanation was outcome determinative here. Th us, plaintiff has failed to carry the requisite burden of proof to a void forfeiture under plain e rror review.

We need not address the evidentiary issues raised in State Far m’s cross-appeal, which are rendered moot by our conclusion that plaintiff has failed to st ate a ground entitling him to reversal. See Madson v Jaso , ___ Mich App ___, ___ n 9; ___ NW2d ___ (2016); slip op at 8 n 9 (“An issue is moot and generally will not be reviewed if this Court can no longer fashion a remedy for the alleged error.”).

Affirmed.

/s/ Kurtis T. Wilder /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly