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

LATASHA NELSON,

Plaintiff-Appellant,

UNPUBLISHED

September 15, 2022

v No. 358984

Wayne Circuit Court

KWADWO OWUSU, HIZMO TRUCKING, LLC, 

and PROGRESSIVE MICHIGAN INSURANCE 

COMPANY,

LC No. 17-012095-NI

Defendants-Appellees.

Before: CAVANAGH, P.J., and GARRETT and YATES, JJ.

PER CURIAM.

Plaintiff, Latasha Nelson, bought a Kia Forte and insured the vehicle by adding her name 

and her vehicle to an automobile-insurance policy of her former boyfriend, Christopher Johnstone, 

even though plaintiff and Johnstone did not live together. Shortly thereafter, plaintiff and the Kia 

Forte were struck by a truck driven by defendant Kwadwo Owusu and owned by defendant Hizmo 

Trucking, LLC. Defendant Progressive Michigan Insurance Company (Progressive) initially paid 

first-party no-fault benefits to plaintiff under the policy, but Progressive eventually rescinded that 

policy based on fraud in the procurement of coverage for plaintiff and her vehicle. The trial court 

authorized rescission by Progressive and foreclosed recovery from Owusu and Hizmo Trucking 

because plaintiff was an uninsured motorist at the time of the collision. On appeal of those two

rulings rendered on summary disposition under MCR 2.116(C)(10), we reverse and remand.

I. FACTUAL BACKGROUND

We have seen this case before. When it was previously before us, we offered the following 

detailed summary of the salient facts:

Plaintiff and [Christopher] Johnstone previously had a dating relationship. At the 

time of the events of this case, plaintiff lived in Sterling Heights and Johnstone 

lived in Hillsdale. Plaintiff and Johnstone both assert that they never lived together 

at Johnstone’s Hillsdale address, but that plaintiff occasionally spent a few days at 

Johnstone’s home. On those occasions, plaintiff parked her car at his home.
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In December 2016, Johnstone obtained a no-fault insurance policy from 

Progressive. In January 2017, plaintiff purchased a Kia Forte. Plaintiff testified 

that while at the Kia dealership, she was told that she would need proof of insurance 

to purchase the vehicle. She called Johnstone, who told her to call his insurance 

agent, Cory Richardson of Stop 1 Insurance Agency (Stop 1). When plaintiff called 

Richardson, he told her that the request to add her and the Kia to Johnstone’s policy 

needed to be made by Johnstone, as the policy holder.

Plaintiff waited at the dealership while Johnstone called Richardson and 

requested that plaintiff and the Kia be added to his policy. Richardson then called 

plaintiff and asked for her identification, registration, and payment. Plaintiff sent a 

copy of her driver’s license to Richardson, which showed her address in Sterling 

Heights. Plaintiff testified during her deposition that she told Richardson that she 

did not live with Johnstone, and that he assured her that it was not a problem to add 

her to Johnstone’s policy, stating “that’s okay, we do this all the time.” Plaintiff 

denied that Richardson told her that Johnstone needed to own the vehicle, or that 

she needed to be living at Johnstone’s home, for her to be added to his insurance 

policy.

Johnstone testified that when plaintiff purchased the Kia, she asked him to 

add her to his insurance policy because she could not afford her own policy. 

Johnstone testified that he called Richardson and explained the situation, and the 

agent told him that “they do that all the time.” Johnstone maintained that he told 

Richardson that he and plaintiff lived at different addresses, and that the agent told 

him that it did not matter. Johnstone also testified that at the time plaintiff was 

added to his policy, he and plaintiff were no longer dating.

Richardson testified that Stop 1 arranges the issuance of insurance policies 

from various insurers, including Progressive. With regard to adding plaintiff to 

Johnstone’s policy, Richardson recalled that the Kia dealership called him, and he 

spoke with plaintiff and told her that he would need to speak to Johnstone because 

he was the policy holder.

Richardson then spoke to Johnstone by telephone. Richardson testified that 

he told Johnstone that plaintiff could not be added as an additional driver on 

Johnstone’s policy unless Johnstone had a financial interest in the new vehicle or 

plaintiff resided with Johnstone. He recalled that Johnstone told him that he did 

not have a financial interest in plaintiff’s vehicle, but that plaintiff was his girlfriend 

and lived with him. Richardson explained that Johnstone seemed hesitant when 

providing this information, and he therefore asked Johnstone to electronically sign 

the household members acknowledgment statement, which stated that all of the 

information he had given regarding members of his household was accurate. 

Richardson testified that he did not ask plaintiff whether she lived with Johnstone, 

and instead relied on Johnstone’s statement that plaintiff lived with him. 

Richardson testified that he was concerned when he received a copy of plaintiff’s 

driver’s license stating an address different from Johnstone’s address. Richardson 

processed the application, and plaintiff was added to Johnstone’s policy.
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Approximately one month after purchasing the Kia, plaintiff was driving 

the vehicle when, while stopped at a traffic light in Detroit, her vehicle was struck 

by a truck driven by defendant Kwadwo Owusu and owned by defendant Hizmo 

Trucking. Plaintiff claimed injuries as a result of the collision. Initially, 

Progressive paid benefits to plaintiff under Johnstone’s policy. However, in April 

2018, Progressive informed Johnstone that his no-fault policy had been rescinded 

as of the date it was issued because Progressive had determined that Johnstone or 

an insured person under the policy, had “concealed, misrepresented or made 

incorrect statements or representations regarding a material fact or circumstance; 

or engaged in fraudulent conduct in connection with your application.” [Nelson v 

Owusu, unpublished per curiam opinion of the Court of Appeals, issued 

December 22, 2020 (Docket No. 347963).]

In the first appeal that we considered, a majority of the panel affirmed nearly all of the trial 

court’s decision, but remanded the case for a determination of the propriety of rescission under the 

analysis suggested by Justice MARKMAN in his concurrence in Farm Bureau Gen Ins Co of Mich 

v ACE American Ins Co, 503 Mich 903, 906-907; 919 NW2d 394 (2020), and adopted by us in 

Pioneer State Mut Ins Co v Wright, 331 Mich App 396, 411; 952 NW2d 586 (2020).1 See Nelson, 

unpub op at 10-11. We identified the five guiding considerations for the trial court in the following 

language derived from Pioneer State, 331 Mich App at 411:

Reduced to their essence, five factors were identified and they address: (1) the 

extent to which the insurer could have uncovered the subject matter of the fraud 

before the innocent third party was injured; (2) the relationship between the 

fraudulent insured and the innocent third party to determine if the third party had 

some knowledge of the fraud; (3) the nature of the innocent third party’s conduct, 

whether reckless or negligent, in the injury-causing event; (4) the availability of an 

alternate avenue for recovery if the insurance policy is not enforced; and (5) a 

determination of whether policy enforcement only serves to relieve the fraudulent 

insured of what would otherwise be the fraudulent insured’s personal liability to 

the innocent third party. [Nelson, unpub op at 10-11.]

With that guidance, we sent the case back to the trial court to determine whether Progressive was 

entitled to the equitable remedy of rescission. See Bazzi v Sentinel Ins Co, 502 Mich 390, 412; 

919 NW2d 20 (2018) (similar remand order).

On remand, the trial court ordered the parties to file renewed summary disposition motions. 

Accordingly, Defendant Progressive moved for relief under MCR 2.116(C)(10), plaintiff filed her 

own cross-motion for summary disposition, and defendants Owusu and Hizmo Trucking joined in 

the process by requesting summary disposition. The trial court elected not to conduct any hearing 

on the competing motions. Instead, the trial court issued an opinion denying plaintiff’s request for 

 

1 Under Bazzi v Sentinel Ins Co, 502 Mich 390, 409; 919 NW2d 20 (2018), “a claim to rescind a 

transaction is equitable in nature,” so “it ‘is not strictly a matter of right’ but is granted only in ‘the 

sound discretion of the court.’ ” Hence, Progressive was not automatically entitled to rescind the 

insurance policy if “two equally innocent parties are affected.” Id. at 410.
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summary disposition because she was not “innocent” and the balancing of equities weighed against 

her. Consequently, the trial court awarded summary disposition to all three defendants, thereby 

ending the case based on the absence of any genuine issue of material fact. Plaintiff appealed the 

trial court’s ruling in favor of all three defendants.

II. LEGAL ANALYSIS

The trial court’s award of summary disposition to the defendants under MCR 2.116(C)(10) 

is subject to de novo review on appeal. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 

934 NW2d 665 (2019). Because such a motion “tests the factual sufficiency of a claim[,]” id., “a 

trial court must consider all evidence submitted by the parties in the light most favorable to the 

party opposing the motion.” Id. “A motion under MCR 2.116(C)(10) may only be granted when 

there is no genuine issue of material fact.” Id. “ ‘A genuine issue of material fact exists when the 

record leaves open an issue upon which reasonable minds might differ.’ ” Id.

In opinions and orders issued on October 1, 2021, the trial court resolved the entire case on 

the parties’ competing motions for summary disposition. The trial court concluded in one of the 

opinions that plaintiff was not “innocent” and the balancing of the equities favored the insurer,2

Progressive, so it was entitled to rescind its insurance policy and deny coverage to plaintiff. Along 

the way, the trial court stated that rescission is “an equitable matter,” so “a court may make findings 

of fact, which are reviewed for clear error.” The trial court proceeded to “find[ ] that Plaintiff’s 

position of innocent ignorance of the requirements for being added to Mr. Johnstone’s no-fault 

insurance policy is not believable, which distinguishes this case from the more understandable

facts in Pioneer State[,]” 331 Mich App 396. The fundamental flaw in this approach, however, is 

that trial courts are prohibited from making any credibility determinations on summary disposition 

review under MCR 2.116(C)(10). Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377; 836

NW2d 257 (2013), citing Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). To 

be sure, the trial court had reasons to be suspicious of plaintiff’s credibility when she disclaimed 

knowledge of the requirements for her to be added to Johnstone’s no-fault insurance policy, and 

we may well have accepted those reasons if the trial court had conducted an evidentiary hearing 

and then concluded that plaintiff’s position of innocent ignorance of those requirements “is not 

believable.” See, e.g., Farm Bureau Gen Ins Co of Mich v ACE American Ins Co, 337 Mich App 

88, 104-105; 972 NW2d 325 (2021). But the trial court conducted no hearing of any kind before 

reaching that conclusion in its opinion. Consequently, the trial court was “not permitted to assess 

credibility, weigh the evidence, or resolve factual disputes” and then award “summary disposition 

 

2

 Applying the five factors identified by Justice MARKMAN and subsequently adopted in our 

opinion in Pioneer, 331 Mich App at 411, the trial court concluded that two factors favored 

plaintiff, two factors favored the insurer, Progressive, and one factor was “neutral.” The trial court 

ruled in favor of Progressive by assigning more weight to the two factors that supported its 

position, reasoning that “[t]he Court finds unconvincing Plaintiff’s assertion that she had no idea 

of the requirements for no-fault insurance and that what Mr. Johnstone did was something other 

than fraudulent.”
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under MCR 2.116(C)(10)” on the basis of a credibility determination. See Pioneer State, 301 Mich 

App at 377. The trial court erred in doing so.

In a separate written opinion, the trial court awarded summary disposition to defendant 

Owusu and his employer, defendant Hizmo Trucking, on plaintiff’s claim for third-party no-fault 

benefits because plaintiff was an uninsured motorist at the time Owusu—driving a truck for Hizmo 

Trucking—ran into plaintiff and her Kia Forte. The no-fault act ordinarily forecloses an uninsured 

motor-vehicle driver from pursuing third-party benefits.3 MCL 500.3135(2)(c); see also Brickley 

v McCarver, 323 Mich App 639, 648; 919 NW2d 412 (2018). But that statutory preclusion arises 

when the motor-vehicle driver “did not have in effect for that motor vehicle the security required 

by [MCL 500.3101(1)] at the time the injury occurred.” MCL 500.3135(2)(c). As an initial matter, 

plaintiff procured no-fault insurance from Progressive before she was hit by the truck that Owusu 

was driving, so plaintiff actually “had in effect for” her Kia Forte “the security required” by MCL 

500.3101(1) at the time she was injured in the collision.4 Moreover, because the trial court erred 

in granting summary disposition to Progressive on the propriety of rescission, plaintiff has not yet 

been stripped of the insurance coverage from Progressive, so she manifestly cannot yet be viewed 

as an uninsured driver subject to the preclusive effect of MCL 500.3135(2)(c). Thus, the trial court 

erred in awarding summary disposition under MCR 2.116(C)(10) to Owusu and Hizmo Trucking 

on plaintiff’s claims against them for third-party no-fault benefits. As a result, we must reverse all 

of the trial court’s awards of summary disposition to the defendants and remand the case for further 

consideration.

Reversed and remanded. We do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Kristina Robinson Garrett

/s/ Christopher P. Yates

 

3 We have held that the preclusion prescribed by MCL 500.3135(2)(c) applies to claims for thirdparty benefits under the threshold exception in MCL 500.3135(1), but not to claims for third-party 

benefits under the intentional-act exception in MCL 500.3135(3)(a). See Gray v Chrostowski, 298 

Mich App 769, 776-779; 828 NW2d 435 (2012). Accordingly, we have chosen to use the term 

“ordinarily” in describing the preclusive effect of MCL 500.3135(2)(c).

4

 In our previous opinion in this case, we relied upon Esurance Prop & Cas Ins Co v Mich Assigned 

Claims Plan, 330 Mich App 584, 593; 950 NW2d 528 (2019), for the proposition that “when a 

policy of no-fault insurance is rescinded, the policy is considered to have not existed.” As it turns 

out, however, that Esurance decision was subsequently reversed by our Supreme Court. Esurance 

Prop & Cas Ins Co v Mich Assigned Claims Plan, 507 Mich 498; 968 NW2d 482 (2021). We do 

not offer any opinion about how our Supreme Court’s decision affects this case.