By Lee Dryden
BridgeTower Media Newswires
DETROIT—A plaintiff was unsuccessful before a Michigan Court of Appeals panel in seeking payment for replacement services for chores performed while she was on vacation.
In Nelson v. Geico Indemnity Company, the plaintiff’s son performed basic household services that the plaintiff claimed she was unable to do following a 2014 motor vehicle accident. Some of those services occurred while the plaintiff was out of town.
The panel affirmed the Wayne County Circuit Court, which “concluded that replacement services were intended to benefit the injured person who cannot take care of himself or herself, and granted summary disposition in favor of defendant because plaintiff would not have performed the chores herself while on vacation.”
The unpublished opinion was issued by Judges Stephen L. Borrello, Kirsten Frank Kelly and Deborah A. Servitto.
The case stems from an Oct. 22, 2014, motor vehicle accident where plaintiff Faydra Nelson sustained head, neck and back injuries.
She also suffered a closed head injury resulting in a lack of focus, sensitivity to light, sound, and movement, memory loss, and extreme fatigue.
“Plaintiff’s son, Jelani Butler, performed household services for plaintiff from October 2014 through October 2017. He did not reside with her, but came to plaintiff’s home to perform any required services,” the opinion stated. “Butler completed forms every few months that noted the replacement services he provided for plaintiff. The replacement services that Butler performed for plaintiff were vacuuming, dusting, cooking, dishwashing, making beds, ironing, laundry, changing linens, and taking the garbage out.”
After the accident, the plaintiff sought personal injury protection (PIP) benefits, reporting that she sustained head, neck and back injuries, and that she had never had “the same or a similar condition.” The defendant insurer argued that the plaintiff was not entitled to payment for Butler’s replacement services under the fraud exclusion provision in the insurance policy between the plaintiff and defendant.
“Defendant argued that plaintiff submitted replacement service affidavits, wherein Butler reported that he performed replacement services for plaintiff while plaintiff was on vacation for parts of May, July, September, and October of 2016,” the opinion stated.
The trial court granted summary disposition for the defendant.
The panel found that there was no genuine issue of fact regarding the plaintiff’s fraudulent statements concerning replacement services and her prior back and neck issues.
The plaintiff took four vacations in 2016: New Orleans, Louisiana, in May; Las Vegas, Nevada, in July; Cancun, Mexico, in September; and Minneapolis, Minnesota in October, according to the COA opinion.
“She testified that since the accident, she believes she also went to Melbourne, Florida with her daughter and perhaps on a cruise with her daughter as well. During plaintiff’s vacations, she went on a helicopter ride, went dancing, and went on a boat ride, among other things,” the opinion stated. “Also during these vacations, Butler remained in Michigan, where he reportedly performed replacement services. Although plaintiff could not remember the exact dates of her vacations, it is evident that plaintiff submitted forms claiming that Butler performed some services while plaintiff was on vacation.”
The panel cited MCL 500.3107(1)(c), which states that an injured person may recover PIP benefits for replacement services that, “if he or she had not been injured, an injured person would have performed ...”
“Plaintiff’s argument that the replacement services Butler provided needed to be done, regardless of whether plaintiff was home, contradicts the plain language of MCL 500.3107(1)(c),” the opinion stated. “While plaintiff was on her vacations, she would not have taken the garbage out, done the laundry, vacuumed, cooked, washed the dishes, or performed any of the other household services that Butler purportedly performed at her home and in her stead while she was on those vacations.”
The panel pointed out that the plaintiff testified that she never had a head, neck or back injury prior to the accident.
“However, medical records show that in 2007, she complained of lower back pain that occurred ‘all the time’ as well as upper neck and back issues. In 2010 she also reported severe low back pain such that she could not go to work and reported mid-back, lower back, and neck pain from March of 2012 forward, undergoing treatment for the same. Plaintiff thus misrepresented whether she had previously experienced ‘the same or a similar condition.’” the panel stated.
“The above misrepresentations allow defendant to void its policy because all elements necessary to establish fraud are present.”
While the trial court granted summary disposition for the defendant on the basis of the plaintiff’s fraudulent replacement services, summary disposition was also appropriate on the basis of the plaintiff’s fraudulent application for benefits, the panel stated.
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