LINDA KAYL V ALLSTATE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
LINDA KAYL,
UNPUBLISHED
June 30, 2009
Plaintiff-Appellant,
v
No. 284752
Wayne Circuit Court
LC No. 06-612437-NI
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee,
and
AAA MICHIGAN,
Defendant.
Before: Sawyer, P.J., and Murray and Stephens, JJ.
STEPHENS, J. (dissenting)
I would reverse the lower court’s grant of defendant's motion for summary disposition
and remand for further proceedings. The trial court incorrectly ruled that plaintiff failed to meet
her burden of opposing defendant’s motion. Plaintiff’s argument is premised on the fact that she
suffered a knee injury in 1994 and that since that time she has had problems with her knee for
which she incurred allowable expense. The initial motion claimed that plaintiff never submitted
any bills that were incurred as a result of her knee injury. However, at oral argument counsel for
the defense conceded that the bills had been received and were not paid. Defendant argued that
there was no proof of a causal connection between the billed items and the 1994 accident.
Defendant further agreed that plaintiff offered an excerpt from an expert report that connected
the knee treatments to the 1994 accident. That report was contrary to the expert report offered by
defendant. At oral argument, defendant questioned whether plaintiff’s expert knew of an
intervening accident in which plaintiff was involved. This was an effective challenge to
credibility, but where both parties offered evidentiary support for their position a question of fact
remains for the trier of fact to resolve. Consequently, it was improper to grant summary
disposition in favor of defendant.
/s/ Cynthia Diane Stephens
-1-
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