AMYRUTH L COOPER V AUTO CLUB INS ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
SHARON L. STROZEWSKI, as Next Friend of
AMYRUTH L. COOPER and LORALEE A.
COOPER,
UNPUBLISHED
May 28, 2009
Plaintiff-Appellee,
V
No. 261736
Washtenaw Circuit Court
LC No. 03-000367-NF
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellant.
ON REMAND
Before: Murphy, P.J., and Meter and Davis, JJ.
METER, J. (concurring in part and dissenting in part).
I concur in the majority’s analysis concerning the proper claimant in this case. However,
I respectfully dissent from the majority’s analysis concerning the fraud issue, but only because I
believe that I am bound to do so, given the holding in Johnson v Wausau Ins Co, ___ Mich App
___; ___ NW2d ___; 2009 WL 763426 (2009).1 In Johnson, 2009 WL 763426 at 1-2, the
plaintiff, a caretaker for a person injured in an automobile accident, alleged that an agent for the
defendant insurance company misrepresented the amount of benefits to which she was entitled.
This Court noted that “family members are entitled to reasonable compensation for the services
they provide at home to an injured person” and that “there appears to be no dispute” that the
plaintiff and another caretaker, Dorothy Bencheck (who became the injured person’s legal
guardian), were entitled to greater compensation than they had been receiving. Id. at 3 (internal
citation and quotation marks omitted). However, citing Cooper v Auto Club Ins Ass’n, 481 Mich
399; 751 NW2d 443 (2008), this Court concluded that the plaintiff did not have an actionable
fraud claim because she could not establish reasonable reliance on the alleged
misrepresentations. Johnson, supra, 2009 WL 763426 at 4-5. The Court stated:
Even assuming that Abdey [the insurance agent] made a fraudulent
misrepresentation when he, in response to Bencheck's inquiries about additional
benefits, told her that additional benefits were not available to her or when, in the
1
Although Westlaw currently refers to this opinion as unpublished, it was approved for
publication on May 12, 2009.
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absence of such an inquiry, he failed to inform Bencheck and plaintiff that
additional benefits were available to them, plaintiff cannot establish that either she
or Bencheck relied upon the fraudulent misrepresentation. Abdey's representation
did not involve information or facts that were exclusively or primarily in the
control of defendant. Rather, Abdey's misrepresentation concerned what benefits
were available to plaintiff and Bencheck for their care of Eastman under the nofault act. Plaintiff and Bencheck had means, i.e., consultation with a lawyer, to
determine whether Abdey's representation was true. Indeed, soon after plaintiff
learned that additional benefits might be available for her care of Eastman, she
consulted a lawyer and the present case was initiated soon thereafter. Plaintiff
does not claim, nor is there even the slightest hint of evidence, that defendant in
any way prevented her or Bencheck from determining the truthfulness of Abdey's
representation. Because plaintiff and Bencheck had the means to determine the
accuracy of Abdey's representation, plaintiff is not able to establish that either
she or Bencheck relied on Abdey's representation. Accordingly, plaintiff's claim
for fraud fails.
Because plaintiff cannot establish a claim for fraud and because the oneyear-back rule bars plaintiff's no-fault claim for benefits that accrued before July
20, 2005, the trial court did not err in granting defendant's motion for partial
summary disposition. We therefore affirm the trial court's order granting the
motion. [Johnson, supra, 2009 WL 763426 at 5; emphasis added.]
The instant case is not distinguishable in any meaningful way from Johnson because, just
like in Johnson, plaintiff here “had means, i.e., consultation with a lawyer, to determine whether”
the alleged misrepresentations by defendant were true. The alleged misrepresentations at issue in
this case were, as in Johnson, related to the rate of compensation allowed for caregivers.
Moreover, the issue of reasonable reliance is squarely before us in this appeal. This case
comes to us in a unique procedural posture. A judgment was entered that “resolved the issues as
to the amounts to which plaintiffs [sic] are entitled for the various time periods involved,”
subject only to “appellate resolution of the legal issues raised in the . . . motions for partial
summary disposition to determine the extent of defendant’s liability.” The judgment set forth
various amounts due, depending on the resolution of the legal issues, and stated that defendant
“expressly preserved” its right to appeal “[a]ll issues raised by either party in defendant’s three
motions for partial summary disposition and plaintiffs’ [sic] response to same.” In a pleading
dated November 17, 2004, defendant clearly argued that plaintiff could not establish reasonable
reliance because she had the means – “retaining an attorney” – to determine whether defendant’s
representations were true. Defendant pointed out that “early on, on at least two occasions,
[plaintiff] retained an attorney to help her with her daughters’ no-fault claims.” The issue of
reasonable reliance was therefore one of the appealable matters contemplated by the judgment.
Moreover, defendant adequately raised the issue of reasonable reliance in its December
30, 2008, supplemental brief on remand filed with this Court. While it was raised in the context
of discussing the possible fraudulent concealment of the fraud claim, defendant nevertheless did
clearly argue that plaintiff “could not reasonably rely on [defendant’s] alleged representations
concerning benefits payable” because “[p]laintiff did, in fact, retain an attorney in connection
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with the probate proceedings which were brought to enable [p]laintiff to negotiate with
[defendant] as to no-fault benefits.”
Accordingly, the issue of reasonable reliance is before us, and, under MCR 7.215(J)(1),
this Court is bound to follow the precedent concerning reasonable reliance that was established
in Johnson. However, MCR 7.215(J)(2) states: “A panel that follows a prior published decision
only because it is required to do so by subrule (1) must so indicate in the text of its opinion,
citing this rule and explaining its disagreement with the prior decision.”
I do not agree with the Johnson opinion because I believe that it places an unreasonable
burden on individuals who are relying on insurance agents for accurate information. While it
may technically be true that a person receiving information from an insurance company
concerning benefits payable for attendant-care services is able to verify the accuracy of the
information through consultation with an attorney, I do not believe that such a consultation
should be a required step in the claims-handling process. As stated in Cooper, supra, 481 Mich
399 at 415-416,
when the process involves information and facts that are exclusively or primarily
within the insurers' perceived expertise in insurance matters, or facts obtained by
the insurer[s] in the course of [their] investigation, and unknown to the insureds,
the insureds can more reasonably argue that they relied on the insurers'
misrepresentations. [Internal citations and quotations marks omitted.]
In my opinion, questions regarding available rates are “primarily within the insurers’ perceived
expertise in insurance matters,” and I therefore disagree with the Johnson panel’s analysis of the
reasonable-reliance issue.
Thus, I dissent in the instant case and find no actionable claim for fraud, but I do so solely
because I feel constrained to do so under MCR 7.215(J)(1).2 I would welcome the convening of
a conflict panel to reassess the decision in Johnson. See MCR 7.215(J)(3).
I concur in part and dissent in part.
/s/ Patrick M. Meter
2
I find that plaintiff’s remaining arguments on appeal, whereby she asserts that she is entitled to
additional damages even if her fraud claim is deemed not actionable, are either moot or without
merit.
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