Estate of Calvin Simmons v. Auto Club Insurance Association ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF CALVIN SIMMONS, by VICTOR UNPUBLISHED
PAYNE, Personal Representative, March 28, 2019
Plaintiff-Appellant,
v No. 340456
Wayne Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, LC No. 15-016609-NF
Defendant-Appellee.
Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
Calvin Simmons brought this action against defendant to recover no-fault benefits and
died while the suit was pending. His estate (plaintiff) now appeals the trial court’s order granting
defendant summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact).
We affirm the dismissal of plaintiff’s claims regarding benefits for services provided on or after
January 1, 2015.1
I.
Before the accident, Simmons lived independently, walked without assistance, drove his
car and did not require any assistance with activities of daily living. He maintained this high
level of independence despite diagnoses of diabetes, glaucoma, renal failure and coronary artery
1
A trial court’s decision to grant summary disposition is reviewed de novo. Pace v Edel-
Harrelson, 499 Mich. 1, 5; 878 NW2d 784 (2016). The party moving for summary disposition
under MCR 2.116(C)(10) “has the initial burden of supporting its position by affidavits,
depositions, admissions, or other documentary evidence.” Quinto v Cross and Peters Co, 451
Mich. 358, 362; 547 NW2d 314 (1996). The nonmoving party then has the burden to present
evidence establishing that a material factual dispute exists. Id. at 362-363.
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disease. There are no records indicating a need for attendant care at any time prior to the auto
accident at issue.
The accident occurred in October 2011, when Simmons was 81 years old. He suffered an
intertrochanteric femur fracture of his left hip, an undisputedly severe injury. Simmons had
surgery to repair the fracture three days later, and he remained hospitalized for one month. He
was initially transferred to Oakwood Commons Rehabilitation and Skilled Nursing Center for
rehabilitation and care, and then later transferred to the rehabilitation center at Henry Ford
Village. He was primarily treated for his injuries by Dr. Douglas Plagens, an orthopedic
surgeon, and Dr. Parmod Mukhi, a specialist in physical medicine and rehabilitation.
After being transferred to the rehabilitation facility, Simmons began physical therapy.
The goal of treatment was identified as transfer from the rehabilitation center to an assisted-
living facility and eventually a return home. However, Simmons developed an ulcer on his left
foot due to immobility, which his physicians related directly to his hip fracture. The ulcer
persisted for years, caused Simmons severe pain and affected his rehabilitation given that he
needed to avoid pressure on the foot. A CT scan also revealed that the fracture had resulted in
some permanent anatomical changes and that he would be unable to return to walking without
assistance from a walker or cane. According to the medical records, Simmons’s recovery was
slow and complicated by his co-morbidities. As of July 2013, he was able to walk only 50-100
feet with a walker and only with standby assistance. The records of that time also state that
Simmons remained dependent on others for transfers to and from his wheelchair.
Around this time, the case manager hired by defendant, Teresa LaRosa of TLR
Rehabilitation Consultants, began inquiring as to the long-term plan for Simmons and whether
his ongoing treatment was related to the accident. At the case manager’s request, in June 2014
Dr. Mukhi wrote a letter providing that Simmons was improving but that he still required
assistance with daily activities and mobility. Dr. Mukhi recommended that Simmons be
transferred to an assisted living facility. Although Dr. Mukhi began his letter by stating that he
had been seeing Simmons “for quite some time for rehabilitation, s/p MVA [i.e., status post
motor vehicle accident],” the case manager thought it was unclear whether Simmons’s ongoing
medical care was related to the accident. Dr. Mukhi then provided another letter recommending
that Simmons remain in 24-hour care “to facilitate further improvement with his wound issues,
mobility and [activities of daily living] secondary to the MVA . . . .”
In December 2014, Simmons was hospitalized with respiratory failure and a possible
heart attack. He underwent cardiac catheterization and was placed on mechanical ventilation for
some time. In January 2015, he was discharged from the hospital in “fair” condition back to
Henry Ford Village.
In August 2015, Dr. William Gonte conducted a record review on behalf of defendant.
He did not meet or examine Simmons. Dr. Gonte concluded that Simmons no longer required
assisted living services due to his hip fracture and his continued care in an assisted living facility
was solely the result of his other medical conditions. In September 2015, based on Dr. Gonte’s
opinion, defendant refused to provide no-fault benefits to Simmons for medical care incurred
after January 1, 2015.
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II.
In December 2015, Simmons sued defendant for unpaid personal protection insurance
(PIP) benefits. Simmons died in November 2016 and the lawsuit continued with Victor Payne
serving as the personal representative of Simmons’s estate. In March 2017, Dr. Gonte performed
another, more complete record review, but still concluded that Simmons’s medical care after
January 1, 2015, was unrelated to the accident, and resulted from his other co-morbidities.
In April 2017, defendant moved the trial court for summary disposition, arguing that the
care Simmons received after January 1, 2015 was unrelated to the left hip fracture he suffered in
the October 2011 accident. Defendant provided an affidavit from Dr. Gonte, along with his
reports. In response, plaintiff contended that a genuine issue of material fact existed as to
whether Simmons’s care after 2014 was causally related to the accident. Plaintiff relied on
Simmons’s medical records, the case manager’s progress reports and Dr. Mukhi’s letters,
amongst other documents. Defendant responded that plaintiff was relying solely on unsworn
letters, statements, and reports, which were all inadmissible hearsay and were not sufficient to
create a genuine issue of material fact as to the causation. After hearing oral argument, the trial
court granted defendant summary disposition, ruling that plaintiff was relying only on
inadmissible “unsworn statements and letters” and therefore had failed to create a material
factual dispute.
III.
A.
As an initial matter, we conclude that the trial court erred in determining that plaintiff’s
proffered evidence was inadmissible and could not be considered for purposes of summary
disposition solely because plaintiff did not present the evidence as sworn affidavits. 2
MCR 2.116(G)(6) provides, “Affidavits, depositions, admissions, and documentary
evidence offered in support of or in opposition to a motion based on subrule (C)(1)—(7) or (10)
shall only be considered to the extent that the content or substance would be admissible as
evidence to establish or deny the grounds stated in the motion.” Thus, “[t]he reviewing court
should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the
substantively admissible evidence actually proffered in opposition to the motion.” Maiden v
Rozwood, 461 Mich. 109, 121; 597 NW2d 817 (1999) (emphasis added). Stated differently,
“while a motion for summary disposition must be supported by admissible evidence, that
evidence does not have to be in admissible form.” Latits v Phillips, 298 Mich. App. 109, 113; 826
NW2d 190 (2012) (quotation marks and citation omitted). For example, in Latits this Court
rejected the argument that “factual statements from police reports” could not be considered for
purposes of summary disposition for two reasons. Id. First, this Court determined that the
2
“A trial court’s decision whether to admit evidence is reviewed for an abuse of discretion, but
preliminary legal determinations of admissibility are reviewed de novo . . . .” Albro v Drayer,
303 Mich. App. 758, 760; 846 NW2d 70 (2014).
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substance of the police reports was admissible because the officers could testify to their
observations at trial in that case:
[D]efendant’s reliance on those reports was in reference to the officers’ personal
observations, and those officers could have testified at trial to the substance of the
material in the reports. That evidence would be admissible. [Id. at 113-114.]
Second, this Court noted that the police reports themselves were arguably admissible under the
hearsay3 exceptions for records of regularly conducted activity, MRE 803(6), and for public
records and reports, MRE 803(8). Id. at 114.
In this case, the trial court’s focus on plaintiff’s failure to produce sworn statements was
misplaced because in reviewing motions for summary dispositions courts are to consider “all
documentary evidence and accept the complaint as factually accurate unless affidavits or other
documents presented specifically contradict it.” Shay v Aldrich, 487 Mich. 648, 658; 790 NW2d
629 (2010) (emphasis added). Plaintiff produced substantial documentary evidence in this case,
namely medical records and the case manager’s progress reports. Absent a challenge to
authenticity, we are unaware of any caselaw holding that medical records and doctors’ notes may
not be considered for purposes of a summary disposition motion. To the contrary, medical
records are generally admissible under the hearsay exception for records of regularly conducted
activity, MRE 803(6).4 See Merrow v Bofferding, 458 Mich. 696, 700; 581 NW2d 696 (1998).
Further, the statements made by defendant’s case manager and claims adjuster were admissions
by a party-opponent under the facts of this case. See MRE 801(d)(2). Thus, in addition to being
legitimate documentary evidence for summary dispositions purposes, many of the records
submitted by plaintiff appear to be in admissible form for trial.
To the extent that any of the documentary evidence was not in admissible form, however,
the trial court was still required to consider whether the substance of that evidence could be
presented at trial. Defendant takes particular issue with plaintiff’s reliance on Dr. Murki’s
letters. We see no reason not to treat those letters as medical records. They were written well
before litigation ensued and in response to defendant’s request for the doctor’s medical opinion.
In any event, Dr. Murki was listed as a witness in this case and was capable of testifying to his
medical opinion, as expressed in the letters, at trial. Latits, 298 Mich. App. at 114. Therefore, the
3
Hearsay “is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “Hearsay is
not admissible except as provided by these rules.” MRE 802.
4
The medical records contained statements and reports by Simmons to his physicians which
themselves constitute hearsay. However, because these statements were made by Simmons to
his physicians in the course of treatment, they are substantively admissible at trial through MRE
803(4).
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letters presented substantively admissible evidence even if the letters themselves would
ultimately have been inadmissible.5
In sum, we emphasize that MCR 2.116(G)(6) allows a party to oppose summary
disposition on the basis of “documentary evidence” and therefore a failure to produce affidavits
or deposition testimony is not necessarily fatal to a nonmoving party. The trial court erred by
failing to consider the evidence separately and whether the substance of the evidence would be
admissible at trial even if it was not currently in an admissible form.
B.
Plaintiff’s proffered evidence established a question of fact as to benefits for services
through the end of 2014. However, we affirm the trial court’s conclusion that plaintiff failed to
present proofs sufficient to establish a genuine issue of material fact as to whether Simmons’s
medical expenses incurred after 2014 were causally related to the accident.6
Under the no-fault act, MCL 500.3101 et seq., an insurer “is liable to pay benefits for
accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle . . . .” MCL 500.3105(1). “Accordingly, a no-fault insurer is liable to
pay benefits only to the extent that the claimed benefits are causally connected to the accidental
bodily injury arising out of an automobile accident.” Griffith ex rel Griffith v State Farm Mut
Auto Ins Co, 472 Mich. 521, 531; 697 NW2d 895 (2005). PIP benefits include “[a]llowable
expenses consisting of all reasonable charges incurred for reasonably necessary products,
services and accommodations for an injured person’s care, recovery, or rehabilitation . . . .”
MCL 500.3107(1)(a). Thus, an insurer is liable to pay charges for care, recovery, and
rehabilitation that are “related to the insured’s injuries” arising out of the automobile accident.
See Griffith ex rel Griffith, 472 Mich. at 531.
The medical records pre-dating Simmons’s medical crisis in December 2014 establish a
question of fact about the reasons that he required assisted living services during that period. It
was the hip fracture that initially required his admission to assisted living and the resulting lack
of mobility was, at least in part, the reason that continued assisted living care was required as
demonstrated by the records through the end of 2014. However, as to services after 2014 we
must affirm the grant of summary disposition because the record contains no medical or assisted
living records for that time period. We cannot speculate to the content of those records, or
Simmons’s condition during that period.7 Given the lack of post-2014 evidence of Simmons’s
5
The letters could also be used as impeachment evidence if the case manager testified that Dr.
Mukhi was uncooperative or that his opinion did not support plaintiff’s claim.
6
We can affirm the trial court when it reaches the right result for the wrong reason. Gleason v
Michigan Dep’t of Transp, 256 Mich. 1, 3; 662 NW2d 822 (2003).
7
Indeed, the only evidence for the period after 2014 is Dr. Gonte’s report, in which he opines
that the services are no longer required for the hip fracture.
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status, we affirm the trial court’s dismissal of the action for benefits for January 1, 2015 and
thereafter.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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