RICKY HICKS V AUTO CLUB GROUP INSURANCE COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
RICKY HICKS and ROXANNE HICKS,
UNPUBLISHED
May 3, 2011
Plaintiffs-Appellees,
and
BRIAN GOODSELL,
Plaintiff,
v
No. 295391
Manistee Circuit Court
LC No. 08-013074-CK
AUTO CLUB GROUP INSURANCE
COMPANY,
Defendant-Appellant.
Before: O’CONNELL, P.J., and K. F. KELLY and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J. (dissenting)
I respectfully dissent, because I believe the majority has applied an insufficiently
deferential standard of review to the trial court’s factual findings.
As the majority states, this case arises out of a fire that destroyed plaintiffs’1 house.
Plaintiffs reported to defendant, their insurer, that more than $70,000 worth of personal property
was destroyed with the house. Subsequent investigation revealed the remains of relatively little
personal property in the remains of the house, indicating that the property was never in the house
to begin with: as the trial court observed, house fires simply do not tend to completely destroy
everything. Defendant denied plaintiffs’ insurance claim in its entirety because the policy, by its
terms, was void if a person intentionally concealed or misrepresented any material fact pertaining
to a claim. The trial court found that the fire had not been arson, but that plaintiff Ricky Hicks
unsophisticatedly and naively attempted to take advantage of the fire and intentionally
1
Because Brian Goodsell is not participating in this appeal, I refer to Ricky and Roxanne Hicks
only as “plaintiffs.”
-1-
misrepresented and concealed material facts. However, the trial court found plaintiff Roxanne
Hicks was an innocent coinsured who “didn’t know if she was coming or going in filling out this
inventory,” had at most a general idea of what was in the house, and “was entirely dependent
upon her husband and [Brian] Goodsell.”
We review de novo a trial court’s findings of law, but the trial court’s findings of fact are
reviewed for clear error; this Court does not reverse unless definitely and firmly convinced that
the trial court made a mistake. City of Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748
NW2d 221 (2008). The trial court is in the better position to evaluate the credibility of the
witnesses, and this Court must defer to the trial court’s superior capabilities in this regard. MCR
2.613(C). Furthermore, trial courts are inherently better suited to evaluating the evidence before
them than is an appellate court. See Anderson v Bessemer City, 470 US 564, 574-575; 104 S Ct
1504; 84 L Ed 2d 518 (1985). As the majority observes, credibility determinations are not
wholly shielded from review where a witness’s story is inherently unbelievable by any
reasonable mind or where the story is incompatible with the objective evidence. Beason v
Beason, 435 Mich 791, 804; 460 NW2d 207 (1990), citing Anderson, 470 US at 575. However,
a reviewing court may not reverse factual findings “‘simply because it is convinced that it would
have decided the case differently.’” Beason, 435 Mich at 803, quoting Anderson, 470 US at 573.
The relevant inquiry in this appeal is not whether plaintiffs’ insurance claim was
inaccurate because of false swearing or misrepresentation. The question is whether Roxanne was
intentionally responsible for any of the inaccuracies. The objective evidence presented in this
case does not shed any light on this question—it only establishes the fact that much of what was
claimed turned out not to be in the house. The undisputed evidence does, conversely, show, as
the trial court found, that all of the plaintiffs are “not sophisticated.” Neither Ricky nor Roxanne
graduated from high school, all three plaintiffs explicitly or implicitly admitted to being terrible
record-keepers, Roxanne had no responsibility for finances or any dealings with the insurance
provider, plaintiffs were given a short period of time in which to fill out the insurance paperwork
while Ricky was attempting to run a business and Roxanne was dealing with four children,
plaintiffs had not completely moved into the house and had not kept completely accurate track of
what property was where, Roxanne was extremely distressed by the fire because of the deaths of
her two nephews in another fire when she was a teenager,2 and Roxanne found out about her fifth
pregnancy shortly after the fire. Roxanne and Ricky were both, at a minimum, seriously
distracted by other things in their lives.
The majority’s recitation of the salient facts is mostly not technically inaccurate,3 but I
believe it is incomplete and therefore misleading. The majority correctly observes that neither
2
The trial court explained that Roxanne provided ample detail about the fire and reasonably
concluded that defendant “would have gone after it and would have found out about it and would
have thoroughly impeached her on it.” Defendant did not do so.
3
Although, as discussed, Roxanne lost two nephews rather than a niece and a nephew, and she
lost them in a fire when she was fourteen, not five years prior to the fire at issue here.
-2-
Ricky nor Roxanne explicitly said at trial, in so many words, that Roxanne merely followed
Ricky’s directions in filling out the paperwork. However, Roxanne’s testimony was replete with
deferences to her husband and admissions that she did not know things, and as noted, Ricky was
the only one of the two who dealt with defendant or any other financial issues. At Roxanne’s
“examination under oath” two months after the fire, she explained that for at least some pages of
the claim form, she did simply write down what Ricky or their son said.4 She further explained
that she had no idea why there was a discrepancy of some $20,000 between the tallied line items
on the claim form and the total amount actually claimed, because Ricky had been the one who
added it up. Ricky’s statement that he needed his wife’s help was in the context of a discussion
about researching what the replacement value for numerous items would be, not what those
items were.5
In short, the unrebutted evidence clearly supports the trial court’s finding that Roxanne
was in many ways largely helpless and reliant on her husband after the fire, and furthermore it is
at least plausible that she was not very attentive to what possessions truly were not in the house.
The majority finds this implausible; and perhaps if Roxanne was someone who had graduated
from a university or professional school with an advanced degree, had no serious psychological
issues, was a competent organizer, had a stable living environment, was unhurried, and was not
dealing with four children and an unexpected pregnancy, it would be implausible. But based on
a reading of the entire record, and giving proper deference to the trial court’s position to evaluate
the witnesses’ credibilities, Roxanne’s version of events is not internally inconsistent and the
objective evidence does not contradict it. Consequently, I conclude that the majority is
improperly and impermissibly engaging in a de novo review of the trial court’s findings, rather
than the correct clear error standard.
4
Some of her testimony at this examination, when read on paper, could be interpreted as
suggesting that she was fairly certain about a number of items’ locations within the house even
though those items proved not to be in the house. However, I do not find that to be the only way
to characterize her testimony, and in any event, this was not testimony she gave at trial, where
her credibility could actually be evaluated.
5
This is admittedly not very clear from the transcript itself. Ricky had just been asked about a
question he was given at an interview conducted less than a month after the fire, while plaintiffs
were still in the process of creating their list of claimed items. At the interview, Ricky stated that
he had, at that time, “tried to order some catalogs to help us out.” At trial, Ricky explained that
he did not yet have enough information to fill out the claim forms and he needed his wife’s help
to fill those forms out. The remainder of his testimony makes it clear that a large part of that
help consisted of researching replacement values. At his “examination under oath,” the only
items with which Ricky indicated that he needed Roxanne to help were their daughters’ clothes,
toys, and makeup. He also stated that “[s]he lost a couple nephews in a house fire, so just, like,
trying to get her to the table for this, took me a month.”
-3-
I would find that the trial court did not commit clear error. In light of the majority’s
resolution of this matter, however, I decline to address the merits of defendant’s claim that the
trial court miscalculated the amount of recovery to which Roxanne was entitled.
/s/ Amy Ronayne Krause
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