Volume XXII, No. 28 November 1, 2010 LAW FAX

MICHIGAN LAW – BLUE | INDIANA LAW – RED www.garanlucow.com

Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600 From the Co-Editors

James L. Borin & Simeon R. Orlowski

HOW TO PROVE THE FILING OF AN ELECTRONIC INSURANCE APPLICATION CONTRIBUTOR – M. SEAN FOSMIRE

The Michigan Court of Appeals has issued an unpublished opinion in the case of Springborn v Allstate Insurance Company, clarifying the steps that must be taken by an insurer to prove the contents of an insured’s online application in connection with the insurer’s motion for summary disposition after the insurer had rescinded a policy on the basis of material misrepresentation. Plaintiff Laura Springborn was married to Eric, who had numerous points and moving violations on his driving record. The first time that she applied for automobile coverage with Allstate, in

March 2006, she was turned down based on Eric’s driving record. Allstate had a policy prohibiting exclusions of an insured’s spouse as a driver.

In October 2006, Laura applied for coverage again, this time submitting an online application and this time stating on the online application form that she was divorced. A policy was issued in her name. In April 2007, Eric was involved in a motor vehicle accident while driving Laura’s car. Laura sustained an injury and sought PIP benefits. Allstate voided the policy ab initio based on Laura’s online misrepresentation. Laura sued for PIP benefits. Allstate moved for summary disposition after some discovery had been taken. The circuit court granted Allstate’s motion.

The misrepresentation charge was based on the fact that Laura checked the “divorced” box on the online form. Laura denied having chosen that box, and claimed that she had checked the “married” box, saying:

“I don’t remember checking divorced. I don’t see why I would have checked divorced.” The Court did not make any comment about the possibility of a box being checked in error on the form. It is not known whether that was an argument made by plaintiff on appeal. Most importantly, the court did not directly address the question of whether inadvertence would be a sufficient response to the misrepresentation charge, although its language (as quoted below) suggests that it would not be sufficient.

The Court found that there was a factual dispute on the question of whether the box had been checked, and thus ruled that the trial court had improperly granted summary disposition to the defendant. In support of its motion, Allstate’s attorney had provided the circuit court only a printout of the online application and had not attached an affidavit, deposition testimony, or other evidentiary documentation to establish the authenticity of the printout. The Court, in finding that the attorney’s submission had been insufficient, suggested that the evidence would have been sufficient to establish a misrepresentation if it had been submitted with proper evidentiary support:

“If defendant is able to establish the admissibility of the printout, that is, that the printout is an ‘original’ and accurately reflects the data input by plaintiff and stored by defendant in its computer system, defendant will likely be able to show that the printout reflects the agreement between plaintiff and defendant, including any representations made by plaintiff in that agreement. Therefore, should defendant establish the admissibility of the printout screen indicating that plaintiff represented her marital status as divorced during her October 2006 application for auto insurance, that document would likely warrant the granting of summary disposition in defendant’s favor. ”

As the opinion shows, the printout must be accompanied by evidentiary facts to establish its authenticity, using the same substantive standards that would apply to offering it into evidence at the time of trial. (Unlike an offer of evidence at trial, though, an affidavit may be used at the summary disposition stage.) It is not sufficient to simply attach the form without any evidentiary support.

Under Rule 901 of the Michigan Rules of Evidence, the requirement of authenticity refers to the common-sense requirement that the offering party offer proof to establish that “the matter in question is what its proponent claims”. Rule 1001(3), which applies to computer-stored information, allows for the use of a printout as an original if it is “shown to reflect the data accurately”.

Computer-stored or computer-generated information often has special evidentiary concerns. It can be found authentic under Rule 901(b)(9), which calls for the offering party to provide the court with “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

In general, the offering party should be prepared to offer an affidavit or deposition testimony to address the following points. It will frequently be necessary to offer testimony from an employee in the IT department in addition to claims personnel.

• How the online application page works in general. How is user-entered information stored and how is it retrieved and used by the company?

• A description of how employees use the information entered online to process the application and how they have been trained in its use.

• Identification of any procedures that the software uses to catch errors and to bring them to the attention of the user. Online forms commonly display a feedback page, with the questions and the user’s answers, so that she may review them before hitting a final “Submit” button. Most will also follow up with a confirming e-mail message, containing the questions and answers, as a further check.

A user who can be shown to have entered information on an online form, reviewed the information in a browser display, and then received an e-mail confirmation which recites the information she has entered would have a hard time persuading a judge in a later hearing that she had made an inadvertent error in filling in the form.

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Garan Lucow Miller Attorneys Selected As Lawyer of the Year and Best Lawyers 2011

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named James L. Borin, as the Detroit Area Personal Injury Litigator of the Year for 2011.

Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year”. The Lawyers being honored as “Lawyers of the Year” have earned a high level of respect among their peers for their abilities, professionalism, and integrity. Also, Congratulations to the following Garan Lucow Miller attorneys that have been selected by the Publication as Best Lawyers for 2011:

David N. Campos; Boyd E. Chapin, Jr.; Dennis P. Partridge; Rosalind Rochkind; Daniel S. Saylor; Roger A. Smith; Michael D. Wade and Peter B. Worden, Jr.

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James R. Lilly Joins Garan Lucow Miller, P.C. James R. Lilly has joined Garan Lucow in the firm’s Troy office. Mr. Lilly earned his B.A. from Western Michigan University, and his J.D. from the University of Detroit.

Mr. Lilly has practiced exclusively in the area of insurance coverage litigation for more than twenty years. During the course of his career, he has acquired a comprehensive knowledge of complex liability insurance disputes, representing clients in every aspect of insurance law including commercial, excess, personal, and umbrella policies, as well as disputes involving surplus lines and reinsurance.

Within the area of insurance coverage, his practice has a particular emphasis on federal and state transportation insurance claims, and advertising injury coverage. Mr. Lilly has represented clients on multi-million dollar claims in jurisdictions across the United States and Canada.

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Upcoming Seminars WINDY CITY SEMINAR Thursday, November 4, 2010 at the DoubleTree Hotel in Arlington Heights, Illinois. Agenda as follows:

8:30 – 8:55 a.m. CONTINENTAL BREAKFAST / REGISTRATION

8:55 – 9:00 a.m. WELCOME AND INTRODUCTION

Speaker: DAVID A. COUCH 9:00 – 9:25 a.m. MICHIGAN THIRD PARTY AUTOMOBILE NEGLIGENCE UPDATES

Speaker: DAVID A. COUCH

*The Michigan Supreme Court’s controversial opinion in McCormick v. Carrier and recent Court of Appeals opinions since the overrul

ing of Kreiner v Fischer. What does it mean for auto insurers in Michigan? 9:25 – 9:45 a.m. USING SOCIAL NETWORKING SITES AS A DISCOVERY TOOL GARAN LUCOW MILLER, P.C.

Speaker: DAVID A. COUCH *Where to discover impeachment material and how to best use it to the advantage of your case.

9:45 – 10:30 a.m. MICHIGAN FIRST PARTY NO FAULT (PIP) – THE YEAR IN REVIEW Speaker: EDWARD M. FREELAND

*Recent cases involving the Statute of Limitations, Medical Causation, Attendant Care, Wage Loss and the Parked Vehicle Exclusion.

10:30 – 10:40 a.m. BREAK

10:40 – 11:25 a.m. HANDLING OF MI AUTO NO FAULT CATASTROPHIC CLAIMS

Speaker: DAVID N. CAMPOS

*Housing, Transportation and Attendant Care

11:25 – 12:10 p.m. INDIANA LAW AND ILLINOIS LAW UPDATES Speaker: GREGORY M. BOKOTA

12:10 – 12:30 P.M. QUESTION AND ANSWER SESSION RETURN EVALUATION FORMS

Comprehensive written materials will be distributed to all program attendees. To register please contact Eileen Carty at Ecarty@garanlucow.com.

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The firm’s Estates, Probate and Elder Law practice group has published a weblog called the Michigan Probate and Estate Journal, found at

http://www.michiganestatejournal.com. Articles are posted on a regular basis by members of the practice group. We encourage you to visit, read, and comment on the postings.