A THRESHOLD INJURY CANNOT BE ESTABLISHED THROUGH HEARSAY IN THE FORM OF LETTERS AND AN AFFIDAVIT

Berton K. May

In Oehmke v Citizens Insurance Company, et al (unpublished Michigan Court of Appeals, March 17, 2016), the Michigan Court of Appeals affirmed the trial court’s granting of summary disposition in favor of defendant on the issue of threshold.   In this case, the court did not look in depth at the nature of the injury claimed by Plaintiff or the impact on the Plaintiff’s life.   The focus of this decision was on the sufficiency of the evidence presented by Plaintiff in rebutting the dispositive motion.

Plaintiff, Shannon Oehmke, was in a motor vehicle accident on November 4, 2012.   She had a prior motor vehicle accident just over two years earlier on July 23, 2010.  Plaintiff made no claims that the 2012 accident caused any new injuries.  Her injury claims were limited to her assertion that the 2012 accident aggravated injuries she suffered in her 2010 accident.

Defendant filed a Motion for Summary Disposition asserting that Plaintiff did not suffer a threshold injury under the No-Fault Act, MCL 500.3101 et seq.  The issue presented centered on whether the 2012 accident caused an “objectively manifested” impairment under MCL 500.3135(5) and McCormick v Carrier, 487 Mich 180, 189-190 (2010).

In response to the summary disposition motion, Plaintiff filed her own affidavit asserting that the 2012 accident aggravated injuries from her 2010 accident and impaired her brain, arm, legs and the ability to think and function.  Her affidavit also indicated that her doctors told her that this was due to the second accident.   The Court of Appeals affirmed the trial court’s determination that this affidavit was inadmissible as it contained hearsay in the form of what the doctor’s had allegedly told her.   The Court of Appeals determined that such an affidavit may not be used to establish evidence of an “objectively manifested” impairment.  Further, Plaintiff’s opinions or observations of how her condition changed were “subjective” assessments and did not establish an “objectively manifested impairment”.

In response to the Summary Disposition motion, Plaintiff also filed “letters” from her various doctors indicating that the second accident of 2012 had “dramatically worsened” her symptoms and the “second motor vehicle accident exacerbated worsening of her symptoms”.   These were not in the form of affidavits.  The Court of Appeals determined that such letters do not meet the pleading requirements of MCR 2.116(G)(6) as documentary evidence that can be used to oppose a motion for summary disposition as such are inadmissible hearsay and the promise to create an issue for trial is insufficient to oppose a dispositive motion.

The Court went into detail of the hearsay rules and exceptions claimed by Plaintiff and determined that the letters met no recognized exceptions to the rule against admitting such evidence.  MRE 803(4) creates an exception for statements made to health care providers for the purposes of obtaining medical treatment either by the person seeking treatment or their agent.   It does not extend to medical providers’ statements unrelated to the purpose of diagnosing or treating patients at the present time.  The exception in MRE 803(6) did not apply where the letters were not contemporaneously recorded or kept in the ordinary course of business.  They were prepared specifically for litigation purposes.  Lastly, under MRE 703 the letters were conclusory and did not set forth any facts or data that could be used to establish evidence of an “objectively manifested” impairment.  Such letters did not even promise that the doctors could provide testimony of such evidence at trial relating the complaints to actual physical findings.  The Court determined the letters did not have “equivalent circumstantial guarantees of trustworthiness” so as to permit their admission into evidence under MRE 803(24) (availability of declarant immaterial) or MRE 804(7) (declarant unavailable).

The Oehmke decision is primarily a procedural determination regarding the sufficiency of evidence that can be used to challenge a dispositive motion premised upon the serious impairment threshold.   It is an unusual case where the injuries themselves are not the center point of the determination, but this decision provides an interesting basis for challenging a plaintiff’s claim of serious impairment beyond McCormick.

*****************************

DOES “THREE YEARS” MEAN THREE YEARS?

By Timothy M. Swan

On October 29, 2015, the Court of Appeals of Indiana published its decision in State Farm Mutual Automobile Insurance Company v. Jakubowicz, 45 NE3d 500 (Ind.Ct.App. 2015) reh’g denied.[1]  The Indiana State Farm automobile policy issued to Jakubowicz specified that an insured had a limit of three years to preserve her right to pursue an underinsured motor vehicle claim against State Farm.  The policy required an insured: (1) present a claim to the company within three years immediately following the accident; and (2) file a lawsuit against the company within three years immediately following the accident.  Jakubowicz, however, did not file suit until nearly four years after the accident.

In the trial court, State Farm filed a Motion for Summary Judgment based on the Jakubowicz’s violation of the contractual limitation of three years.  That motion was denied, so State Farm filed an interlocutory appeal.  The Court of Appeals reversed the lower court decision on a 3-0 vote, and ordered the trial court to grant State Farm’s Motion for Summary Judgment.  A Petition for Rehearing was denied.  Jakubowicz’s Petition to Transfer to the Supreme Court of Indiana is currently pending.

The Court of Appeals treated the State Farm policy as a contract and decided the case on contract law.  While Indiana courts do not look with favor on contractual limitations, the Court affirmed such time limits will be enforced if the language is unambiguous and the time period reasonable.  The language of the time limitation in the State Farm policy was found to be clear and unambiguous and, thus, enforceable.

Just months before the Motion for Summary Judgment was argued, an appellate court decision came out holding that a similar time limitation of two years was ambiguous in a Meridian policy because it required the insured to comply with all of the provisions of the policy before a UIM claim could be made.  One of those policy provisions was settlement or judgment against the underinsured motorist exhausting the underlying liability limits before suit was filed against Meridian.  The Court of Appeals in that case found that this requirement potentially required the Meridian insured to file a lawsuit before being in full compliance with the policy.  “Unless a policyholder settles with an underinsured motorist within two years of the collision, those provisions are in direct conflict and therefore ambiguous.”

Although similar in some respects, including a shortened limitation period, the State Farm policy provided a manner and method for Jakubowicz to file suit against the company.  The policy allowed that the insurer and insured must attempt to come to an agreement on the UIM claim.  If there is no agreement, then within three years of the accident the policyholder shall file her lawsuit and include the tortfeasor, State Farm, and any other interested parties so that all of the issues and all of the necessary parties are part of the process and the judgment is binding on everyone.  This distinction prompted the Jakubowicz court to find “Therefore, we cannot say that State Farm’s policy was ambiguous,” and to reverse the trial court’s denial of State Farm’s Motion for Summary Judgment.

*****************************

GLM ATTORNEY KYLE KAMIDOI WAS ELECTED
PRESIDENT OF THE MICHIGAN ASIAN PACIFIC AMERICAN BAR ASSOCIATION

Kyle C. Kamidoi was elected as the President of the Michigan Asian Pacific American Bar Association (MAPABA) at their Annual Dinner on March 24, 2016. Kyle has previously served as the Communications Director of MAPABA, as well as Public Relations Director of the National Asian Pacific American Law Students Association (NAPALSA) and President of the Wayne State Law School Chapter of the Asian Pacific American Law Students Association (APALSA). Kyle Kamidoi is an Associate Attorney at the Firm’s Port Huron Office.

MAPABA is a local affiliate of the National Asian Pacific America Bar Association, which is comprised of over 40,000 attorneys, judges, law professors, and law students from 66 different regional chapters. Founded in 1988, MAPABA addresses national and local issues involving Asian Pacific Americans including civil rights violations, combating anti-immigrant backlash and hate crimes, and increasing the diversity of the federal and state judiciaries. The group also advocates for equal opportunity in the workplace and promotes professional development for people of color in the legal profession.

*****************************

*****************************