Green v. Southfield et al

Filing 220

OPINION AND ORDER Denying 170 MOTION for Summary Judgment filed by Dawn Green. (Final Pretrial Conference set for 4/24/2018 at 09:30 AM, IN ROOM 425, before District Judge Sean F. Cox) Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dawn Green,
Plaintiff,
v.

Case No. 15-13479

City of Southfield, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
_________________________/
OPINION & ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AS TO DEFENDANT GEICO
On October 4, 2012, Plaintiff Dawn Green was involved in an automobile accident in
Southfield, Michigan. She later filed this action, under 42 U.S.C. §§ 1983, 1985(3), and 1986,
asserting that officers of the Southfield Police Department violated her constitutional rights, and
conspired to do so, in the manner in which they investigated the accident.
When Plaintiff filed the amended complaint that is now the operative complaint, she also
added a breach of contract claim against her automobile insurer, Defendant Geico Indemnity
Insurance Corporation (“Geico”).
In a prior Opinion & Order, this Court granted a summary judgment motion filed by the
Southfield Defendants and dismissed all claims against the Southfield Defendants. The matter is
currently before the Court on a Motion for Summary Judgment filed by Plaintiff as to Defendant
Geico. This motion was fully briefed by the parties, including supplemental briefs, and the
Court heard oral argument as well. For the reasons set forth below, the Court shall DENY
Plaintiff’s Motion for Summary Judgment as to Geico. As such, Plaintiff’s breach of contract
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claim against Defendant Geico shall proceed to a jury trial.
BACKGROUND
Acting through counsel, D. Rick Martin, Plaintiff Dawn Green filed this action on
October 3, 2015.
Plaintiff’s Second1 Amended Complaint (D.E. No. 48) is the operative complaint. Count
IV, asserted against Defendant Geico, is the only remaining count.
Count IV is titled “Breach of Contract Claim,” and it is asserted against Defendant Geico

alone.2 This Count alleges that on October 4, 2012 and November 14, 2012, Plaintiff was
involved in automobile accidents while insured by Geico. (Id. at Pg ID 886). Plaintiff alleges
that she sustained injuries in both accidents and that Geico paid requested wage loss and certain
other benefits until it wrongfully terminated those benefits on January 14, 2013. Plaintiff alleges
that Geico’s “termination of benefits was based solely upon a defense medical examination
performed by a Dr. Paul Drouillard, an orthopedic surgeon.” (Id. at 887).
This count then includes a description of two different cases between Plaintiff and Geico
in Wayne County Circuit Court, and facts pertaining to case evaluations. Towards the end of the
Count, Plaintiff alleges:
53.

That Defendant has unreasonably delayed making payment of No-Fault
benefits to Plaintiff, in direct violation of the terms of said policy of
insurance and MCL 500.3114(2) and continues to do so.

1

As explained in this Court’s March 8, 2017 Order, despite its title, this was actually the
sixth complaint filed by Plaintiff in this action. (See D.E. No. 138 at Pg ID 3051).
2

Although this count was inserted at page 19 of the Second Amended Complaint,
Plaintiff’s counsel began numbering the paragraphs pertaining to Geico as paragraph 1, so there
are two paragraphs 1, two paragraphs 2, etc.
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54.

That an actual controversy exists as to the responsibilities of Defendant,
Geico to pay No-Fault PIP benefits to Plaintiff, as a result of physical and
neurological injuries the case evaluation panel found were either caused or
aggravate by automobile accidents that occurred on October 4, 2012 and
November 14, 2012, respectively.

(Id. at Pg ID 893).
Geico asserted numerous affirmative defenses in response to Plaintiff’s breach of contract
claim against it, including that “Plaintiff’s alleged injuries and treatment are not causally related
to the automobile accident,” “Plaintiff has submitted claims that were not reasonably incurred,
actually incurred and/or not necessary,” “Plaintiff has failed to provide adequate documentation
or support for the benefits claimed,” “Plaintiff is not entitled to an award for attorney fees,
interest, or costs for the reason that the Defendant has not unreasonably refused to pay the
Plaintiff’s claim or unreasonably delayed in making proper payment of substantiated and proper
claims” and that “Defendant is entitled to reasonably rely upon the findings and opinions of
physicians who have or will examine and/or evaluate Plaintiff.” (See D.E. No. 56).

ANALYSIS
On May 19, 2017, Plaintiff filed a Motion for Summary Judgment Against Geico. (D.E.
No. 170). Although titled “Motion for Summary Judgment,” in this motion, Plaintiff’s Counsel
is actually seeking entry of partial summary judgment, as to liability only, against Geico. (Id. at
Pg ID 4557). Plaintiff’s motion then believes that the amount of damages would be “determined
by the Court.” (Id.). But the docket reflects that both Plaintiff and Geico have demanded a jury
trial. Thus, even if Plaintiff could establish liability as a matter of law, there would be a jury trial
as to damages.

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As Counsel for Geico notes, Plaintiff’s motion is convoluted and difficult to follow. As
summarized by Geico, “What is currently being disputed between Plaintiff and Defendant is the
nature and extent of the injuries Plaintiffs may have sustained in the automobile accidents, and
whether or not the pending claims are reasonable and necessary, pursuant to the No Fault Act,
MCL 500.3107, MCL 500.3142. Pursuant to MCL 500.3107, the Plaintiff bears the burden of
proving that the injury arose out of the subject accident, and that the expenses incurred were
reasonably necessary for her care, recovery, and/or rehabilitation. See also Nelson v. DAIEE,
137 Mich App 226 (1984).” (Def. Geico’s Resp. at 3).
In addition, as Geico asserts in its supplemental brief, there also appear to be disputes
regarding disability certificates provided by Plaintiff’s treater, disputed issues of fact regarding
whether Plaintiff’s injuries are related to or arose out of the motor vehicle accidents, and issues
concerning whether Plaintiff failed to appear for independent medical examinations.
The Court agrees with Geico that there are genuine issues of fact that must proceed to the
trier of fact and, therefore, the Court shall deny this motion.
CONCLUSION & ORDER
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment as to Defendant Geico
is DENIED.
It is FURTHER ORDERED that Plaintiff and Defendant Geico shall appear for a Final
Pretrial Conference in this matter on April 24, 2018 at 9:30 a.m., in room 425. Counsel are
ORDERED to carefully review this Court’s Scheduling Order in order to properly prepare for,

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and attend, that conference.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 21, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 21, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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