Grange Insurance Company of Michigan v. Parrish et al

Filing 159

OPINION AND ORDER Granting 156 Motion for Summary Judgment Signed by District Judge David M. Lawson. (SJa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GRANGE INSURANCE COMPANY OF
MICHIGAN,
Plaintiff,

Case Number 13-11822
Honorable David M. Lawson

v.
ANTRICE PARRISH, EDWARD BURTONSCOTT, AFFILIATED DIAGNOSTIC OF
OAKLAND, LLC, AUTO RX, LLC, CLEAR
IMAGING, LLC, and SUMMIT MEDICAL
GROUP, PLLC,
Defendants,
and
CLEAR IMAGING, LLC,
Counter-claimant,
v.
GRANGE INSURANCE COMPANY OF
MICHIGAN,
Counter-defendant,
and
EDWARD BURTON-SCOTT,
Counter-claimant,
v.
GRANGE INSURANCE COMPANY OF
MICHIGAN,
Counter-defendant.
___________________________________/
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

On April 23, 2013, the plaintiff filed a complaint in this Court, and on October 1, 2013, the
plaintiff filed an amended complaint. The amended complaint alleges that defendant Edward
Burton-Scott “requested [that] Grange provide certain personal injury protection benefits to [him]
as a result of the injuries [he] allegedly suffered in [an] automobile accident of July 8, 2012, . . .
including medical benefits, attendant care benefits, wage benefits, and household services,” Am.
Compl. ¶ 21, but that the requested amounts were not covered under the policy. On October 17,
2013, Burton-Scott (at that time represented by counsel) filed an answer and a counter-complaint
seeking a judgment declaring that his claims relating to the accident were covered under the policy
and must be paid by the plaintiff.
The matter is now before the Court on the plaintiff’s motion for summary judgment, in which
the plaintiff asks that the Court enter judgment in its favor on its own claims and on defendant
Burton-Scott’s counter-claim. The plaintiff does not seek any award of money damages and asks
only that the Court declare that it has no obligation under the policy to pay any claims submitted by
Mr. Burton-Scott in connection with the July 8, 2012 accident. No party has filed any response to
the plaintiff’s motion, and the time for doing so now has passed.
The Court has reviewed the pleadings and the plaintiff’s motion and finds that the papers
adequately set forth the relevant facts and law and oral argument will not aid in the disposition of
the motion. Therefore, it is ORDERED that the motion be decided on the papers submitted. See
E.D. Mich. LR 7.1(f)(2).
I.
Defendant Edward Burton-Scott, through counsel, filed an answer to the amended complaint
and a counter-claim. However, on March 18, 2014 his attorneys of record were granted leave to

-2-

withdraw, and since that time he has proceeded pro se. Since he filed his answer and counter-claim,
Burton-Scott has not filed any other papers in this matter. The plaintiff asserts that Burton-Scott did
not appear either in person or though counsel for a facilitated mediation session on April 7, 2014,
which the Court had ordered all parties to attend. Because defendant Burton-Scott filed no response
to the plaintiff’s motion for summary judgment, the facts recited below are taken as stated by the
plaintiff, to the extent they accord with the pleadings and the cited portions of the factual record.
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 407 (6th Cir. 1992).
On April 3, 2014, the plaintiff served Burton-Scott with nineteen requests for admissions
under Federal Rule of Civil Procedure 36. Pl.’s Mot. for Summ. J., Ex. H. The plaintiff requested
that Burton-Scott admit, with regard to the July 8, 2012 car accident, and with respect to the
definitions of the relevant terms under the Michigan No-Fault Insurance Act and relevant case law,
that he (1) did not sustain “accidental bodily injury”; (2) did not receive “products, services, or
accommodations” from any medical, service, or transportation provider; (3) did not receive any
“products, services, or accommodations” that were reasonable and customary in cost, or reasonably
necessary to his care, recovery, or rehabilitation; (4) did not incur any lost wages; (5) will not incur
any future lost wages; (6) did not receive any “replacement services”; and (7) did not incur any
charges for “allowable expenses.” The plaintiff further requested that Burton-Scott admit that (1)
he has not provided the plaintiff with “reasonable proof of the amount and of the fact of loss
sustained”; (2) he is not entitled to Personal Injury Protection (PIP) benefits of any sort as a result
of the accident; (3) he cannot meet his burden of proof as to any claim for PIP benefits raised in his
counter-claim; and (4) the plaintiff has not unreasonably denied or delayed payment to him for any
PIP benefits relating to the accident.

-3-

The plaintiff contends that Burton-Scott never answered these requests for admissions, and
because he has filed no response or any other papers in this matter that would demonstrate
otherwise, the Court must accept that contention. Under Federal Rule of Civil Procedure 36, “[a]
matter is admitted unless, within 30 days after being served, the party to whom the request is
directed serves on the requesting party a written answer or objection addressed to the matter and
signed by the party or its attorney, Fed. R. Civ. P. 36(a)(3), and “[a] matter admitted under this rule
is conclusively established unless the court, on motion, permits the admission to be withdrawn or
amended,” Fed. R. Civ. P. 36(b). The plaintiff asserts that it served the requests for admissions on
April 3, 2014, and the defendant therefore had until May 6, 2014 to serve his responses. Fed. R.
Civ. P. 36(a)(3); Fed. R. Civ. P. 6(d). Because he failed to do so, he is deemed to have admitted
each of the facts specified by the plaintiff in its requests. Fed. R. Civ. P. 36(b).
In a supplemental brief, the plaintiff represents that, on May 12, 2014, it received purported
responses to the requests for admissions, which it attached as Exhibit A. However, the “responses”
were not signed either by Mr. Burton-Scott or by his attorney, and the plaintiff contends that they
were delivered in an envelope with the name “Renia Scott,” in the return address, and without any
other papers or writings that would suggest that the responses were produced by the defendant. The
Court finds that there is nothing in the record to suggest that the purported responses exhibited in
the plaintiff’s supplemental brief either were written or were signed by defendant Edward BurtonScott, and the Court therefore will not consider them. Fed. R. Civ. P. 36(a)(3).

-4-

II.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
As the Sixth Circuit has explained:
Both claimants and parties defending against a claim may move for summary
judgment “with or without supporting affidavits.” Fed. R. Civ. P. 56(a), (b). Such
a motion presumes the absence of a genuine issue of material fact for trial. The court
must view the evidence and draw all reasonable inferences in favor of the
non-moving party, and determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986).
Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009).
“The party bringing the summary judgment motion has the initial burden of informing the
district court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.” 576 F.3d at 558. (citing Mt. Lebanon Personal
Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs,
the party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in
order to defeat the motion.” Id. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989)). However, where an unresponsive party admits by default facts that are dispositive of
the claims raised in the complaint, summary judgment is appropriate. Lovejoy v. Owens, 86 F.3d
1156 (6th Cir. 1996).
“[T]he party opposing the summary judgment motion must do more than simply show that
there is some ‘metaphysical doubt as to the material facts.’” Highland Capital, Inc. v. Franklin
Nat’l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
-5-

Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted). A party opposing a motion
for summary judgment must designate specific facts in affidavits, depositions, or other factual
material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to
meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). “Thus, the mere existence of a scintilla of evidence in support of the
[opposing party]’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].” 350 F.3d at 546 (quoting 477 U.S. at 252) (quotations
omitted).
Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.
Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if
its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d
574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.
Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could
return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994) (quoting 477 U.S. at 248).
Under Michigan’s “no-fault automobile insurance act, MCL 500.3101 et seq., insurance
companies are required to provide first-party insurance benefits, referred to as personal protection
insurance (PIP) benefits, for certain expenses and losses.” Johnson v. Recca, 492 Mich. 169, 173,
821 N.W.2d 520, 523 (2012). “Under personal protection insurance an insurer is liable to pay
benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of
a motor vehicle as a motor vehicle.” Mich. Comp. Laws § 500.3105(1). “PIP benefits are payable

-6-

for four general categories of expenses and losses: survivor’s loss, allowable expenses, work loss,
and replacement services.” Johnson, 492 Mich. at 173, 821 N.W.2d at 523. “‘Survivor’s loss’ is
defined in MCL 500.3108(1), and ‘allowable expenses,’ ‘work loss,’ and replacement services are
defined . . . in MCL 500.3107(1).” Ibid. In this case, Burton-Scott did not submit any claim for
“survivor’s loss,” but he does seek payment of the other three types of enumerated benefits. In all
cases, the burden is on the claimant to prove his eligibility for benefits, and “[w]here a plaintiff is
unable to show that a particular, reasonable expense has been incurred for a reasonably necessary
product and service, there can be no finding of a breach of the insurer’s duty to pay that expense,
and thus no finding of liability with regard to that expense.” Nasser v. Auto Club Ins. Ass’n, 435
Mich. 33, 50, 457 N.W.2d 637, 645 (1990).
“[P]ersonal protection insurance benefits are payable for . . . [a]llowable expenses consisting
of all reasonable charges incurred for reasonably necessary products, services and accommodations
for an injured person’s care, recovery, or rehabilitation.” Mich. Comp. Laws § 500.3107(1)(a). “To
be reimbursed for an ‘allowable expense’ under M.C.L. § 500.3107(1)(a), a plaintiff bears the
burden of proving that (1) the charge for the service was reasonable, (2) the expense was reasonably
necessary and (3) the expense was incurred.” Williams v. AAA Michigan, 250 Mich. App. 249, 258,
646 N.W.2d 476, 480 (2002).
PIP benefits also are available for any “[w]ork loss consisting of loss of income from work
an injured person would have performed during the first 3 years after the date of the accident if he
or she had not been injured.” Mich. Comp. Laws § 500.3107(1)(b). In order to qualify for work loss
benefits, the plaintiff must prove that “but for the automobile accident [he] would not have lost

-7-

income from work.” Williams v. Detroit Auto. Inter-Ins. Exch., 169 Mich. App. 301, 305, 425
N.W.2d 534, 536 (1988).
The claimant also may submit a claim for “replacement expenses,” consisting of those
“[e]xpenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary
services in lieu of those that, if he or she had not been injured, an injured person would have
performed during the first 3 years after the date of the accident, not for income but for the benefit
of himself or herself or of his or her dependent.” Mich. Comp. Laws § 500.3107(1)(c).
With regard to the automobile accident that allegedly occurred on July 8, 2012, the Court
finds that the following undisputed facts are conclusively established by the record before it: (1)
defendant Edward Burton-Scott did not sustain any accidental bodily injury; (2) he did not receive
any products, services, or accommodations from any medical, service, or transportation provider in
connection with the accident; (3) he did not receive any products, services, or accommodations that
were reasonable and customary in cost, or reasonably necessary to his care, recovery, or
rehabilitation; (4) he did not incur any lost wages, and will not incur any future lost wages; (5) he
did not receive any replacement services; and (6) he did not incur any charges for allowable
expenses relating to any injury from the accident.
Based on these undisputed facts, the plaintiff is entitled to judgment as a matter of law on
all of its claims against defendant Burton-Scott and on the defendant’s counter-claim, because Mr.
Burton-Scott cannot establish that he is entitled to any of the types of benefits that he seeks under
the No-Fault Act. As to his claims for “allowable expenses” for medical treatment, the defendant
admitted that he received no treatment, that he did not receive any services that were reasonable and
necessary for his care, and that in fact he did not suffer any injury as a result of the accident. The

-8-

defendant therefore has not established that he incurred any “allowable expenses,” and the plaintiff
is not obligated pay any such benefits to him or on his behalf. Mich. Comp. Laws § 500.3107(1)(a);
Williams v. AAA Michigan, 250 Mich. App. 249, 258, 646 N.W.2d 476, 480 (2002). As to his claims
for lost wages, the defendant admitted that he has not incurred any lost wages and will not incur any
lost wages in the future, and because he admitted that he was not injured as a result of the accident,
he cannot show that he suffered a disability that caused any alleged loss of income. He therefore
is not entitled to recover any benefits for any lost wages. Mich. Comp. Laws § 500.3107(1)(b);
Williams v. Detroit Auto. Inter-Ins. Exch., 169 Mich. App. 301, 305, 425 N.W.2d 534, 536 (1988).
As to his claims for “replacement services,” the defendant admitted that did not receive any
products, services, or accommodations from any medical, service, or transportation provider in
connection with the accident, and that he did not receive any products, services, or accommodations
that were reasonable and customary in cost, or reasonably necessary to his care, recovery, or
rehabilitation. He therefore is not entitled to recover any benefits for “replacement expenses.”
Mich. Comp. Laws § 500.3107(1)(c). Moreover, Burton-Scott admitted that he did not comply with
the obligations imposed on him under the policy, because did not provide the plaintiff with
reasonable proof of the amount of or the fact of the losses that he sustained. Because the defendant
is not entitled to Personal Injury Protection (PIP) benefits of any sort as a result of the accident, the
defendant necessarily cannot prevail on his counter-claim alleging that the plaintiff unreasonably
denied or delayed payment to him for any PIP benefits relating to the accident.
The Court previously denied in part the plaintiff’s motions for default judgment against
defendants Affiliated Diagnostic, LLC and Auto RX, LLC with respect to charges based on services
rendered to Mr. Burton-Scott, because the Court found that although the amended complaint alleged

-9-

that there was an “actual controversy” between the parties as to whether the charges incurred by Mr.
Burton-Scott were “reasonably necessary,” the well pleaded allegations in the amended complaint
do not suffice to resolve that controversy. However, the Court now finds, on the basis of the record
before it, that it is conclusively established that the plaintiff has no obligation to pay any charges
relating to any treatment provided to Mr. Burton-Scott in connection with the July 8, 2012 accident
by any medical provider, including defendants Affiliated and Auto RX. The Court therefore will
enter a declaration to that effect.
III.
Defendant Edward Burton-Scott has admitted by default ample facts to establish that the
plaintiff is entitled to judgment as a matter of law in its favor on the claims raised in the complaint
and in his counter-claim. The Court therefore will grant the plaintiff’s motion.
The Court finds that the plaintiff has not shown “that there is no just reason for delay” in
entering judgment, and the Court therefore will enter a final judgment when the claims against the
last remaining party have been resolved. Fed. R. Civ. P. 54(b).
Accordingly, it is ORDERED that the plaintiff’s motion for summary judgment [dkt. #156]
is GRANTED.
It is further DECLARED that in connection with the automobile accident that occurred on
July 8, 2012, defendant Edward Burton-Scott did not sustain any accidental bodily injury; did not
receive any products, services, or accommodations from any medical, service, or transportation
provider in connection with the accident; did not receive any products, services, or accommodations
that were reasonable and customary in cost, or reasonably necessary to his care, recovery, or

-10-

rehabilitation; did not incur any lost wages; will not incur any future lost wages; did not receive any
replacement services; and did not incur any charges for allowable expenses.
It is further DECLARED that defendant Edward Burton-Scott did not provide the plaintiff
with reasonable proof of the amount of or the fact of any losses sustained.
It is further DECLARED that defendant Edward Burton-Scott is not entitled to Personal
Injury Protection (PIP) benefits of any sort as a result of the accident, and the plaintiff did not
unreasonably deny or delay payment to him for any PIP benefits relating to the accident.
It is further DECLARED that the plaintiff is not obligated to pay any amounts for any claims
submitted by defendant Edward Burton-Scott under Policy No. PA967363300 relating to the July
8, 2012 automobile accident.
It is further DECLARED that the plaintiff has no duty to pay any charges submitted to the
plaintiff by defendants Affiliated Diagnostic, LLC and Auto RX, LLC relating to any treatment or
services rendered to defendant Edward Burton-Scott as a result of the July 8, 2012 accident.
It is further ORDERED that defendant Edward Burton-Scott’s counter-claim against the
plaintiff is DISMISSED WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: June 10, 2014
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 10, 2014.
s/Shawntel Jackson
SHAWNTEL JACKSON

-11-