Motion Response and Brief Opposing an MCR 2.116(C)(10) Motion

Motion Response and Brief Opposing an MCR 2.116(C)(10) Motion

[Insert caption.]

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

Plaintiffs answer Defendant’s motion as follows:

1. Admitted that on or about January 15, 2002, John Smith was killed in an automobile accident.

2. Admitted that, at the date of death, John Smith was 18 years old.

3. Admitted that Plaintiffs have filed a lawsuit against Defendant seeking survivors’ loss benefits.

4. Defendant presents a legal conclusion, to which no response is required. However, Plaintiffs note that

a. Plaintiffs are dependents under the no-fault act; and

b. there is evidence that Plaintiffs have suffered damages recoverable under the act. As of yet, that evidence stands unrefuted.

Any suggestion to the contrary is denied. Plaintiffs state further:

5. Pursuant to MCR 2.116(G)(4),

A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.

For the purpose of this motion, Plaintiffs rely on all pleadings filed with this court, Defendant’s motion for summary disposition, Defendant’s brief in support of that motion and all attached exhibits, the present motion response and brief, and all exhibits attached to Plaintiffs’ brief in response to the present motion.

Facts Not in Dispute

6. Defendant alleges that the following facts are not in dispute:

a. The decedent was 18 years old at the time of his death (Defendant’s motion, ¶1).

b. Plaintiffs have filed the present lawsuit (Defendant’s motion, ¶2).

c. The present lawsuit is for survivors’ loss benefits (Defendant’s motion, ¶4).

7. Plaintiffs do not dispute those allegations that are obviously insufficient to merit summary disposition.

Facts in Dispute

8. Defendant argues that

a. neither Plaintiff is a dependent under the no-fault act; and

b. there is no proof that expenses have been incurred entitling Plaintiffs to survivors’ benefits

(Defendant’s motion, ¶4).

9. These particular conclusions remain very much in dispute:

a. Defendant concedes that there is testimony supporting the fact that Plaintiffs suffered damages (brief in support of Defendant’s motion, at 6).

b. Defendant argues that “it is difficult to conclude” that John Smith was “head of the household” and that it is “Defendant’s position” that neither Plaintiff could be designated as factual dependents (brief in support of Defendant’s motion, at 8).

c. Defendant’s arguments require that this court weigh and make a determination based on contested facts.

10. Plaintiffs have presented testimonial evidence that

a. John contributed monetarily to the household (see deposition of Susan Smith, at 10–13, 21; deposition of Ashley Smith at 4–5; this testimony is acknowledged in brief in support of Defendant’s motion, at 7);

b. John was primarily responsible for maintaining the home (see deposition of Susan Smith, at 21–22; deposition of Ashley Smith, at 4–5; this testimony is acknowledged in brief in support of Defendant’s motion, at 7);

c. John played a significant role in performing household chores, including cooking and cleaning (see deposition of Susan Smith, at 21–22; deposition of Ashley Smith, at 4–5; this testimony is acknowledged in brief in support of Defendant’s motion, at 9);

d. costs for replacement services were incurred within the meaning of the statute, Plaintiffs having performed and having contracted to provide reimbursement for replacement services, necessitated by John’s death (see deposition of Susan Smith, at 25; this testimony is acknowledged in brief in support of Defendant’s motion, at 9–10);

e. Plaintiff Susan Smith was unable to work after John’s death for a period of three months (see deposition of Susan Smith, at 17; this testimony is acknowledged in brief in support of Defendant’s motion, at 6–7); and

f. decedent provided materially for Plaintiff Ashley Smith (see deposition of Susan Smith, at 21–22; deposition of Ashley Smith, at 4–5).

11. Defendant argues in its brief that Plaintiff Susan Smith “testified that she was unable to work for three months but upon her return to work, her dependency ceased” (brief in support of Defendant’s motion, at 7) (emphasis added).

12. It follows implicitly that, if Defendant argues that at a certain point in time Plaintiff Susan Smith’s dependency ceased, before that time the facts reasonably establish that Plaintiff Susan Smith was dependent.

13. The facts amply establish that Plaintiffs are entitled to recover survivors’ benefits from Defendant.

Plaintiffs request that the court deny Defendant’s motion and allow this case to proceed to trial.

Dated: ______/ [Firm name]
By: /s/______
[Typed name of attorney] (P______)
Attorney for Plaintiffs
[Address, telephone]
STATE OF MICHIGAN
______COUNTY CIRCUIT COURT
______,
Plaintiffs,
v
______,
Defendant. / Case No. ______
Judge ______
______(P ______)
Attorney for Plaintiffs
[Address, telephone]
______(P ______)
Attorney for Defendant
[Address, telephone]
______/

PLAINTIFFS’ BRIEF IN SUPPORT OF RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

FACTS

This action was filed by Plaintiffs, Susan Smith and Ashley Smith, for survivor benefits arising from the death of John Smith in an automobile accident. Susan Smith is John’s mother, and Ashley Smith is his younger sister. Plaintiffs are far from wealthy, and at the time of John’s death, Plaintiff Susan Smith was making approximately $190–$210 per week (deposition of Susan Smith, at 10). John had a job and would contribute between $75 and $150 per week to the household (id.). He also helped provide for Ashley Smith (see deposition of Susan Smith, at 21–22; deposition of Ashley Smith, at 4–5). John played a significant role in performing household chores, including cooking and cleaning (id., at 21–22; deposition of Ashley Smith, at 4–5). Susan Smith was unable to work for three months following John’s death, and replacement services were necessitated by John’s absence from the household (see deposition of Susan Smith, at 17, 25).

STANDARD OF REVIEW—MCR 2.116(C)(10)

In presenting a motion for summary disposition pursuant to MCR 2.116(C)(10), the moving party must specifically identify in its motion the issues regarding which the moving party believes there is no genuine issue of material fact. Summary disposition is appropriate only when the court is satisfied that “it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.” Rizzo v Kretschmer, 389 Mich 363, 372, 207 NW2d 316 (1973) (emphasis added); accord Horton v Verhelle, 231 Mich App 667, 672, 588 NW2d 144 (1998).

ARGUMENT
>A. THE FACTS PRESENTED BY PLAINTIFFS ARE SUFFICIENT TO ESTABLISH DEPENDENCY UNDER THE NO-FAULT ACT

Defendant presents the text of MCL 500.3110, noting that when Plaintiffs are not conclusive dependents,

(2) In all other cases, questions of dependency and the extent of dependency shall be determined in accordance with the facts as they exist at the time of death. Defendant first points out that Plaintiffs are not conclusive dependents under MCL 500.3110. However, Defendant presents no legal argument that Plaintiffs are not dependents under MCL 500.3110(2). Instead, Defendant argues from the testimony that Plaintiffs are claiming:

• Susan Smith made only $6.95 per hour at the time of John’s death.

• Ashley Smith was a middle school student at the time of John’s death.

• John Smith was employed and had income.

• Susan Smith testified that John contributed between $190 and $210 per week to the household. (This is actually an overstatement of the contribution; see deposition of Susan Smith, at 10).

• John was essentially “head of the household,” and Plaintiffs relied on his financial support.

• Plaintiffs required replacement services as a result of John’s death. These facts weigh heavily in favor of a finding of dependency.

B. PLAINTIFFS ARE FACTUAL DEPENDENTS

Defendant opens this argument by stating that “assuming that this Court were to conclude that Susan Smith was a factual dependent, that dependency continued only so long as Susan Smith was physically or mentally incapacitated from earning pursuant to MCL 500.3110(3).” It is implicit within this statement that the facts support a finding of dependency by the court. As Defendant states, “She testified that she was unable to work for three months but upon her return to work, her dependency status ceased.” Obviously, for that status to cease, it had to have existed. Additionally, although Plaintiff Susan Smith did attempt to return to work, the attempt was not successful, and she remains unable to work.

With regard to Plaintiff Ashley Smith, Defendant concedes, “[A]ssuming that the Court finds she is a factual dependent, [her dependency] would last until she reached the age of 18.” Again, there is an implicit concession of sufficient proof for this court to make such a finding.

The Michigan Supreme Court has noted,

The term dependent is nowhere specifically defined in the act. However, MCL 500.3108, which defines a survivor’s loss, indicates that a dependent is a person who was receiving support and services from the deceased injured person prior to his death. Belcher v Aetna Cas & Sur Co, 409 Mich 231, 244, 293 NW2d 594 (1980) .

C. PLAINTIFFS HAVE PRESENTED PROOF OF THEIR DEPENDENCY

Defendant attempts to put its description of John’s role in the household into the mouth of Plaintiff Susan Smith. Plaintiff Susan Smith did not use the term head of the household, which was coined by Defendant at page 7 of its brief. (“Susan Smith claims, essentially, that John was the ‘head of the household” . . . ”). However, Defendant is correct that Plaintiffs testified that John contributed financially to the household and that Plaintiffs relied on his contribution to supplement the meager household income.

Defendant tacitly admits that it has no evidence to challenge the testimony of Plaintiffs, instead speculating on who might be designated as a “dependent” on various tax returns. Neither the legislature nor Michigan’s courts have imposed upon survivors’ benefit cases the definition of dependent as used by the Internal Revenue Service (IRS). Further, Defendant’s statements are conclusory—Defendant presents no evidence, testimony, or legal authority to dispute Plaintiffs’ dependency even under the IRS definition of dependent.

Under the statute, as clarified by Belcher, it is apparent that Plaintiffs were dependent on John. Plaintiff Ashley Smith was a young child at the time of John’s death. Plaintiff Susan Smith had and continues to have a job that barely pays above minimum wage. John contributed substantially to the household, financially and through his work around the house. Again, Defendant concludes its argument by suggesting that it is possible that this court can reasonably come “to the conclusion that factual dependency has been established,” arguing that if this court makes that reasonable finding the survivors’ benefits should be limited by the terms of MCL 500.3110(3). Plaintiffs have made no claim for anything more than that to which they are entitled under the statute.

D. EXPENSES FOR REPLACEMENT SERVICES WERE INCURRED

Defendant argues that, although Plaintiffs obtained replacement services and contracted to reimburse the provider of those services, no expense has been “incurred” because Plaintiffs have not yet paid for the services. Thus, Defendant contends that Plaintiffs are not entitled to compensation. The language of MCL 500.3110(4) reads, “Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred.” That use of the word incurred appears consistent throughout the no-fault act, as reflected by MCL 500.3107(1)(a):

Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.Defendant does not point to any authority or definition that would suggest that the legislature had different concepts of the word incurred in mind when it drafted those two provisions.

The court of appeals has made very clear that an expense can be incurred before the exchange of payment:

In this case, defendant argued and the trial court agreed that the value of the care provided to plaintiff was not an allowable expense because plaintiff was not charged by her parents for those services. . . . According to defendant’s argument, no charges for the service provided by plaintiff’s parents have been “incurred.” Although this Court has not addressed this precise argument in any published opinion that we have located, accepting such an argument would be inconsistent with the holdings in Visconti, Van Marter, Reed and Botsford. In each of those cases, this Court implicitly held that “charges” or “expenses” had been “incurred” without requiring that the insured was actually billed by the family. We decline to create such a requirement in this case. As in Botsford, supra at 143, whether the plaintiff was entitled to collect the value of the services and the determination of the value are matters properly left for the jury to decide. Booth v Auto-Owners Ins Co, 224 Mich App 724, 729–730, 569 NW2d 903 (1997) (emphasis added; footnote omitted). Accordingly, the fact that Plaintiff Susan Smith has agreed to make payment for replacement services is sufficient to carry the matter to the jury. Under Booth, those expenses have been incurred.

Defendant inappropriately attempts to use a case involving a directed verdict to support its motion.

Moreover, a motion for summary disposition cannot be equated with a motion for a directed verdict. A motion for a directed verdict is brought after discovery has been conducted, after a jury has been impaneled, and after the plaintiff has presented proofs. Also, a court grants a motion for a directed verdict under a different standard from that of a summary disposition motion. A directed verdict arises under MCR 2.516, while summary disposition occurs under MCR 2.116. In essence, a directed verdict for the defendant technically orders the jury to find no cause of action. A court grants a directed verdict when the evidence does not establish a prima facie case and reasonable persons would agree that there is an essential failure of proof. Zander v Ogihara Corp, 213 Mich App 438, 441, 540 NW2d 702 (1995) . Although the standards are similar, a motion for summary disposition is typically made before trial and decided on documentary evidence, while a directed verdict motion is made at trial on the admitted evidence. Auto Club Ins Ass’n v GMC, 217 Mich App 594, 601–602, 552 NW2d 523 (1996) (emphasis added). Despite the similarity in standards of review, the analogy does not hold.