Estate of Frederick R. Rode v. Blue Cross Blue Shield of Michigan et al

Filing 39

OPINION and ORDER Granting in Part and Denying in Part re 24 MOTION for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Estate of Frederick Rode,
Plaintiff,
v.

Case No. 17-10615

Citizens Insurance Company,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This is a suit seeking no-fault benefits from the defendant insurance company for injuries
sustained by Plaintiff’s decedent in a 2013 automobile accident. Discovery has concluded and
Plaintiff has moved for summary judgment. For the reasons below, the Court shall grant the
motion in part and deny it in part. The Court shall grant the motion as to Plaintiff’s medical
payments claim because Defendant does not object to the requested payment of $43,891.61 in
medical benefits. But the Court shall deny Plaintiff’s motion in all other respects because
genuine issues of material fact exist for trial.
BACKGROUND
On September 9, 2013, Frederick Rode was involved in an automobile accident. Pl.
Stmt. of Material Facts, ¶ 1. Rode, who maintained an automobile insurance policy with
Defendant Citizens Insurance Company, notified Defendant the next day of a claim for firstparty no-fault benefits and underinsured motorist benefits. Id. at ¶ 12, 18-19. But aside from
paying for Rode’s initial hospitalization, Defendant denied Rode’s request for benefits, attesting

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that the injuries he sustained did not result from the accident. Id. at ¶ 13.
What were those injuries? Per Rode, immediately after the accident he began
experiencing burning in his torso, an electric-shock-like sensation in his lower extremities, and
cervical spine pain. Id. at ¶ 2. Two months later, he visited an orthopaedic surgeon, Dr. Sidhu,
complaining of pain in his neck, mid-back, and lower back, which also radiated to his
extremities. Id. at ¶ 3. A January 2014 MRI revealed that Rode had disc bulges at the C5-6 and
C6-7 levels of his cervical spine. Pl. Ex. 5. Two months later, because an MRI showed a large
herniated disc, Dr. Sidhu proposed that Rode undergo a cervical discectomy surgery and Rode
did so the next month. Pl. Stmt., ¶ 7-8, 10. Defendant’s own evaluating doctor would later
opine that the accident had caused Rode to develop the C6-7 herniated disc that prompted the
surgery. Def. Ex. 3, p. 9.
A couple years later, in a September 2016 deposition, Rode discussed the effect that his
injuries had allegedly had on his quality of life. Three months prior, Rode had started going to
physical therapy due to pain in his neck that radiated throughout his body. Pl. Dep., p. 88.
During those next few months, Rode also had difficulty controlling his hand; for instance, he
would drop his cellphone while trying to carry it. Id. at 88, 96. Rode also needed help with
chores around the house as he had difficulty lifting large loads of laundry, putting dishes away
on upper shelves, cutting grass, shoveling snow, and raking leaves. Id. at 90-92. Basic hygiene
was also an issue; Rode had difficulty getting dressed, going to the bathroom, and showering.
Id. at 107-08. Unsurprisingly, many of his leisure activities had also been limited, such as
boating, skiing, and driving his sport’s car. Id. at 109-114.
Yet the September 2013 accident was not the beginning of Rode’s troubles. Before the

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accident, in early 2013, he had applied for Social Security Disability Benefits. Def. Ex. 7. In his
application, he reported a litany of issues relating to pain in his back, including: lifting,
squatting, bending, standing, walking, sitting, kneeling, climbing stairs, and completing
household chores. Id. at 4. Rode also noted that he had numbness and weakness in both hands,
leading to difficulty grasping and holding items. Id. These physical problems led to issues in
Rode’s daily life; he noted that he had difficulty standing and completing tasks. Id. at 1. And
along with these problems, Rode’s application also detailed numerous social limitations. He
reported engaging in few daily activities, having difficulties with memory and concentration, and
having a reluctance to go out in public. Id. at 4.
These problems persisted. Medical records from February 2013 show that Rode had
been attending physical therapy for lower back, left shoulder, and hip pain. Def. Ex. 12, p. 1. At
that time, he also reported pain in his cervical spine that radiated down his back and decreased
range of motion and pain in his left shoulder. Id. at 1-2. For this, his treating physician
recommended that Rode continue with physical therapy. Id. at 2.
The next month, Rode underwent a psychological assessment for his disability
application. Def. Ex. 8, p. 1. Rode reported to the examiner that on most days he did not get out
of bed and that he isolated himself from others, noting that he had no friends or people that he
socialized with. Id. at 1-2. He also mentioned that he had previously been hit by a car, leading
to trouble with his hips, neck, and back that caused him to refrain from much activity. Id. at 3.
The resulting diagnostic impression from the assessment was major depressive disorder,
generalized anxiety disorder, and panic disorder without agoraphobia. Id. at 4. Other medical
records from this time frame also indicate that Rode had not been driving due to his medical

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issues. Def. Ex. 11, p. 4.
In April 2013, the Social Security Administration determined that Rode was totally
disabled from working as of December 2, 2011 and that medical improvement was not expected.
Def. Ex. 9, p. 16. Rode then began receiving disability benefits. Id. at 17.
Five months later, the accident at issue here occurred. Rode sought medical care for his
resulting injuries and, from February 2014 through September 2014, he was billed $43,891.61
for various medical treatments relating to the accident. Id. at ¶ 22-31. Although Defendant had
denied coverage for certain no-fault benefits, it did issue checks to Rode for these treatments
under his policy’s medical payments coverage. But although Defendant issued Rode a check for
the billed amount of each treatment, those checks were never cashed. Id. The reason for this is
disputed; Plaintiff contends the checks were unable to be cashed, Defendant states Rode never
cashed them and allowed them to go stale. In any event, Defendant presently does not object to
the payment of $43,891.61 in medical benefits. Def. Counter-Statement of Material Facts, ¶ 31.
In October 2014, Defendant had Rode undergo an independent medical examination. Id.
at ¶ 14. At the time, Rode complained of neck pain and numbness in his limbs, hands, and face.
Def. Ex. 10, p. 2. The evaluating doctor, Dr. Nikpour, noted that these same complaints–such as
the neck and back pain–were present after Rode was in car accidents in 2004 and 2012. Id. at 4.
Dr. Nikpour noted, however, that the “abnormality that was positive in the recent accident” was
the spurring and disc complex at Rode’s C5-C6 and C6-C7 discs. Id. And he acknowledged that
the accident led to the C6-7 damage that required surgery. Id. at 9. But he was unsure whether
the September accident contributed to the continued numbness Rode was experiencing. Id.
Dr. Nikpour also painted a rosier picture of Rode’s physical capabilities. He stated: “I do

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not see at present any neurological problem or deficit with him or physical deficit with him that
he could not go back to work and perform his job at GM. He is physically capable of doing so.”
Id. He also felt similarly about Rode’s personal life: “It seems to me that he is a physically
strong young man that he can perform all his personal care and personal duty without any
difficulty.” Id.
The record contains scant information about the next two years. Eventually, in March
2016, Rode displayed some complications, leading to Dr. Sidhu giving him the option of a
revision surgery for pseudoarthrosis repair. Pl. Ex. 7. Yet this surgery never occurred and Rode
died in December 2016.1 Pl. Stmt., ¶ 11.
In January 2017, Plaintiff, Rode’s estate, filed suit for no-fault benefits against Defendant
and Blue Cross and Blue Shield of Michigan, which has since been voluntarily dismissed from
the case (Doc. # 5). Plaintiff has now moved for summary judgment (Doc. # 24) and Defendant
has responded (Doc. # 32). As agreed upon by the parties, the Court shall decide the motion on
the briefs, the issues having been adequately presented therein. LR 7.1(f)(2).
STANDARD OF DECISION
Summary judgment will be granted when no genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact
exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. The Court “must view the evidence, all facts, and any inferences that may be drawn
from the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High
Sch., 305 F.3d 520, 526 (6th Cir. 2002).
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The parties do not allege that his death was related to any injuries suffered in the
September 2013 accident.
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ANALYSIS
According to Plaintiff’s motion, it seeks summary judgment on two separate claims that
are based on the uninsured motorist coverage and the medical payments coverage in Rode’s
insurance policy. The Court shall address each in turn.
I. Underinsured Motorist Coverage
Plaintiff’s first claim is based on Rode’s underinsured motorist coverage. Both parties
agree that this is a claim for noneconomic loss. Under M.C.L. § 500.3135(1), liability for
noneconomic loss lies only if the injured person “suffered death, serious impairment of body
function, or permanent serious disfigurement.” At issue here is whether Rode suffered a serious
impairment of body function, that is, “an objectively manifested impairment of an important
body function that affects the person’s general ability to lead his or her normal life.” M.C.L.
§ 500.3135(5).
What does this entail? First, there must be an objectively manifested impairment–an
impairment that is “observable or perceivable from actual symptoms or conditions.” McCormick.
v. Carrier, 795 N.W.2d 517, 527 (Mich. 2010). Next, the impairment must be of an important
body function–one that has great value, significance, or consequence. Id. at 528. Finally, the
impairment must affect the person’s general ability to lead his normal life. Id. at 529. Whether
these prongs are satisfied should be determined by the Court as a matter of law unless there is a
“material factual dispute regarding the nature and extent of the person’s injuries[.]” Id. at 526.
Objectively Manifested Impairment. Plaintiff argues that the cervical injuries at Rode’s
C5-C6 and C6-C7 discs satisfy this prong. There is no question of fact that at least some of
Rode’s cervical damage–the C6-C7 injury in particular–was caused by the accident and required

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surgery. Indeed, this was confirmed by Defendant’s own reviewing physician. See Def. Ex. 10,
p. 9. And this injury was accompanied by actual symptoms; Rode consistently reported
suffering from pain and numbness after the accident. These reported symptoms, coupled with
the medical records showing a physical basis for those symptoms, establish that Rode suffered
from an objectively manifested impairment. See Patrick v. Turkelson, __ N.W.2d __; 2018 WL
442417, p. 4 (Mich. Ct. App. 2018) (“Although mere subjective complaints of pain and suffering
are insufficient to show impairment, evidence of a physical basis for that pain and suffering may
be introduced to show that the impairment is objectively manifested.”).
Important Body Function. Rode’s impairment also affected an important body function.
The undisputed facts show that he suffered a spinal injury that required surgical intervention.
There can be “no serious dispute that the spine is an extremely important part of every person’s
body.” Chouman v. Home Owners Ins. Co., 810 N.W.2d 88, 94 (Mich. Ct. App. 2011).
Affecting Rode’s Ability to Lead His Normal Life. But did this impairment of an
important body function affect Rode’s ability to lead a normal life? True, there is record
evidence to support this conclusion. Rode complained of neck and back pain that limited his
ability to care for himself and participate in basic household activities. The pain also caused him
to need assistance for many of his prior leisure activities (if he continued to engage in them at
all). All of this evidence lends credence to Plaintiff’s assertion that Rode’s “normal manner of
living” had been affected. See McCormick, 795 N.W.2d at 530.
Yet Plaintiff must show that the particular impairment–the cervical injury–had a tangible
effect on Rode’s ability to lead a normal life. See Benefiel v. Auto-Owners Ins. Co., 759 NW.2d
814 (Mich. 2008); Lopez-Garcia v. United States, 207 F.Supp.3d 753, 760 (E.D. Mich. 2016)

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(“[A] plaintiff must show that an accident-related injury had ‘an influence on some of the
person’s capacity to live in his or her normal manner of living.’”), quoting McCormick, 795
N.W.2d at 530 (emphasis added). And, viewing the facts in Defendant’s favor, there is evidence
in the record that suggests that Rode’s difficulties may not be attributable to the accident-related
injury here.
Even before the accident, Rode was beset with many of the medical issues and lifestyle
limitations that he attributed to the accident in his deposition. Back pain? About nine months
before the accident, Rode reported in his disability application that back pain limited his ability
to complete even the most basic household tasks. Difficulty holding things? This was an
ongoing problem before the accident. Inability to drive? Medical records show that Rode had
not been driving due to his medical issues since at least six months before the accident. Lack of
social activities? Rode’s disability application and psychological assessment paint a very
different picture of his alleged hobbies, depicting an individual who participated in few daily
activities and isolated himself socially from others. All of this creates a material question of fact
on whether Rode’s cervical injury actually affected his ability to lead a normal life.
Pointing in a different direction (but still not in Plaintiff’s favor) is the report of Dr.
Nikpour, who offered a very different account of the difficulties, or lack thereof, that Rode faced
after his injury. Dr. Nikpour opined that Rode was physically capable of returning to his job at
GM and of performing all of his personal care without any difficulty. Thus, this report also helps
create a genuine question of fact. See Chouman, 810 N.W.2d at 94-95 (holding a genuine
question of fact existed when the defendant’s examining physician testified that she was unable
to find an objective basis for the plaintiff to be restricted in any way by her spinal injury).

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It may be the case that Rode’s injury did indeed affect his ability to live a normal life,
whether by creating new limitations or exacerbating old ones. But, as it stands, Defendant has
presented evidence showing a genuine issue of material fact on this issue, which precludes the
Court from deciding the serious impairment question as a matter of law. Thus, the Court shall
deny Plaintiff’s Motion for Summary Judgment on this claim.
II. Medical Payments Coverage
Next, Plaintiff seeks summary judgment on its medical payments coverage claim, arguing
that Defendant should have paid Rode’s $43,891.61 in medical expenses. Defendant does not
respond to this claim its brief, thereby failing to identify any genuine issue of material fact.
Indeed, Defendant appears to concede liability in its counter-statement of facts, stating:
“Defendant does not object to the payment of $43,891.61 in medical benefits[.]” Def. Br., p. 7-8.
Thus, the Court shall grant Plaintiff’s Motion for Summary Judgment on this claim for the
$43,891.61 in medical expenses.
Along with the medical expenses amount, however, Plaintiff also seeks penalty interest
and attorney fees for Defendant’s alleged failure to pay its claims in a timely fashion. But,
Plaintiff has not yet shown that it is entitled to either as a matter of law.
First, Plaintiff seeks penalty interest under M.C.L. § 500.2006(4), which requires an
insurer to pay interest to an entity directly entitled to benefits if policy benefits were not paid in a
timely manner. Griswold Properties, LLC v. Lexington Ins. Co., 741 N.W.2d 549, 557 (Mich.
Ct. App. 2007). But according to Defendant, it promptly issued checks for Rode’s medical
expenses; Rode simply did not cash them. True, Plaintiff disputes this, arguing that the checks
were not capable of being negotiated. But Plaintiff has not met its burden to show that no

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genuine issue of material fact exists on this issue, failing to put forth any evidence showing that
Rode could not cash the checks or that the checks were not issued on a timely basis. Simply put,
Plaintiff has given the Court no reason to disregard Defendant’s version of the facts. So, the
Court shall decline to award penalty interest at this time.
Second, Plaintiff seeks attorney’s fees under M.C.L. § 500.3148(1), which are awarded
“if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed
in making proper payment.” But Plaintiff’s argument goes no further than summarily stating that
Defendant unreasonably refused to pay Plaintiff’s claim. The Court will not award attorney fees
based on this perfunctory analysis. See McPherson v. Kelsey, 125 F.3d 995-96 (6th Cir. 1997)
(“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving
the court to . . . put flesh on its bones.”).
In sum, the Court shall award Plaintiff summary judgment on its medical benefits claim.
But, because Plaintiff has not yet shown entitlement to penalty interest or attorney’s fees, the
Court declines to award them at this time.
III. Attendant Care Benefits
Finally, for the first time in its reply brief, Plaintiff claims entitlement to attendant care
benefits (a type of personal protection insurance benefits) under M.C.L. § 500.3107(1)(a).
Plaintiff could have raised this argument in its Motion for Summary Judgment but did not. It is
improper for Plaintiff to do so now and the Court will not consider this argument. See Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008).
CONCLUSION
For the reasons above, IT IS ORDERED that Plaintiff’s Motion for Summary Judgment

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is GRANTED IN PART AND DENIED IN PART. The Court GRANTS summary judgment in
Plaintiff’s favor on Plaintiff’s medical expenses claim for $43,891.61. But the Court DENIES
Plaintiff’s Motion Summary Judgment in all other respects because genuine issues of material
fact exist for trial.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 15, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 15, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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