In a recent published opinion, the Michigan Court of Appeals held that a party cannot, as a general rule, create a genuine issue of material fact to survive summary disposition by giving self-contradictory deposition testimony.
The rule complements the longstanding principle that a party may not manufacture genuine issues of material fact by contradicting their own testimony in the form of an affidavit. But it also limits the competing principle that, for the purposes of summary disposition under MCR 2.116(C)(10), documentary evidence is viewed in a light most favorable to the nonmoving party.
In Bakeman v Citizens Ins Co of the Midwest, ___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 357195), the Court of Appeals considered whether a deponent’s self-contradiction in a single deposition could establish a genuine issue of material fact sufficient to overcome summary disposition. The plaintiff submitted insurance claim forms alleging that he received attendant care arising out of a motor vehicle accident 12 hours a day, 7 days a week. However, at the plaintiff’s deposition, he testified that he received attendant care 8 hours a day, 5 days a week.
Based on this testimony, the defendant argued that the plaintiff committed a fraudulent insurance act. However, the central issue in the case came when the plaintiff contradicted himself at his deposition by testifying that (1) he signed the subject claim forms, and (2) his signature on the forms was a forgery. In response to a motion for summary disposition by the defendant, the plaintiff argued that the trial court was compelled to ignore the contradiction (i.e., that the claim forms were a forgery) and instead view the evidence in the light most favorable to the plaintiff. The trial court, however, disagreed, and the Court of Appeals affirmed.
The Court of Appeals held that, in the context of self-contradictory deposition testimony, it would not be beneficial to apply a “ ‘bright line’ ” rule favoring either the testimony favorable to the deponent or the testimony damaging to the deponent.” Rather, the Court suggested a balancing of the general rules that (1) a party is entitled to the benefit of evidence in their favor on a (C)(10) motion, but (2) at least in the context of affidavits, a party Is not permitted to manufacture questions of material fact by contradicting themselves.
The Court further held that the evidence should be weighed on a case-by-case basis to determine whether the contradiction lends itself to a genuine issue of material fact. That is, “where a deponent’s testimony is inherently self-contradictory, a court may not, at the summary disposition stage of proceedings, blindly assume that one statement is true and the other is false.” Rather, the Court must have an objective basis for concluding that one statement is true over the other statement, or the court otherwise engages in an “impermissible credibility assessment.”
Ultimately, the Court held that the plaintiff’s contradictory statements did not create a genuine issue of material fact, that the plaintiff committed a fraudulent insurance act, and that the defendant was entitled to summary disposition for that reason. The Court concluded:
– The plaintiff’s deposition testimony as a whole did not suggest that the plaintiff was attempting to manufacture an internal conflict to overcome summary disposition. The Court noted that the plaintiff was not a particularly sophisticated witness, and his conflicting testimony appeared to be the product of confusion and poorly-crafted questions. The Court suggested, however, that were it the case that the plaintiff was attempting to manufacture an evidentiary conflict to overcome summary disposition, his testimony might have been more easily dispensed, and summary disposition granted without needing further analysis.
– The documentary evidence—including the signature lines on the plaintiff’s claim forms—supported a conclusion that the plaintiff had individually signed each form. This consideration is significant, as one might read it as a departure from the ordinarily applied rule that the evidence is to be viewed in a light most favorable to the nonmoving party.
– The plaintiff did not attempt to clarify the discrepancy at the end of his deposition, nor did he offer evidence that could substantiate his speculation that the claim forms had been forged.
Thus, the Court held that the plaintiff’s testimony and the signatures on the claim forms compelled the conclusion that plaintiff did sign the forms. The plaintiff therefore committed a fraudulent insurance act, and summary disposition was appropriate.
This result is notable because it challenges the traditional deference that is ordinarily given to nonmoving parties. In other cases, the Court of Appeals has held that “[a] party’s own testimony, standing alone, can be sufficient to establish a genuine question of fact,” and that “[a] conflict in the evidence may generally only be removed from the trier of fact’s consideration if it is based on testimony that is essentially impossible or is irreconcilably contradicted by unassailable and objective record evidence.” Bakeman loosens the standard applied in the context of self-contradictory statements, and shows that a party can overcome what might otherwise be a finding that a genuine issue of material fact exists where the issue of fact is based on a claimant’s contradictory testimony.
The Court also reaffirmed the principle that a defendant can establish a fraudulent insurance act without establishing an intent to defraud. Rather, a fraudulent insurance act requires “mere knowledge that [a] statement contains false information concerning a fact or thing material to the claim.” Likewise, whether a claimant actually reviews a claim from prior to signing it is immaterial to whether a fraudulent insurance act was committed.
Finally, the Court left open the question of whether “a small number of isolated inaccuracies” could “amount to the kind of fraudulent insurance act that voids an entire [no-fault] claim.” The plaintiff argued that even assuming his claim forms contained some inaccuracies, those inaccuracies were not sufficient to void the plaintiff’s entire no-fault claim. But the Court noted that every daily claim form submitted by the plaintiff contained false information, and so the case did not involve “a small number of isolated inaccuracies.” The Court suggested, however, that in future cases a plaintiff’s argument could have merit under less egregious circumstances.
It is possible that the plaintiff will appeal the decision to the Michigan Supreme Court. Should that happen, we will continue to monitor the case and provide updates as needed.