Flesher v. Progressive Marathon Ins. Co.
| Decision Date | 19 May 2022 |
| Docket Number | 357382 |
| Parties | KENNETH FLESHER, Plaintiff, v. PROGRESSIVE MARATHON INSURANCE COMPANY, Defendant-Appellant, and JOHN DOE, NICHOLAS FETZER, AUTO CLUB INSURANCE ASSOCIATION, and MEMBERSELECT INSURANCE COMPANY, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Genesee Circuit Court LC No. 17-109372-NI
Before: Letica, P.J., and Markey and O'Brien, JJ.
Defendant Progressive Marathon Insurance Company (Progressive), appeals by right the trial court's order granting summary disposition in favor of defendants, Nicholas Fetzer, Auto Club Insurance Association, and MemberSelect Insurance Company, under MCR 2.116(C)(10).[1] The issue in this appeal is whether the trial court erred by determining that there was no genuine issue of material fact that Fetzer's GMC Yukon was not involved in an accident in which plaintiff, Kenneth Flesher, was struck by a hit-and-run vehicle while operating his motorcycle. Progressive was plaintiff's no-fault insurer, and AC-MS insured Fetzer's Yukon. We reverse and remand for further proceedings.
On July 4, 2016, at approximately 11:30 p.m. in the city of Flint, plaintiff was operating his motorcycle in a northbound lane of traffic when a motor vehicle traveling southbound crossed the centerline in an apparent attempt to make a left turn in front of the motorcycle, resulting in a collision.[2] The traffic crash report indicated that the motor vehicle then "fled the scene" and that plaintiff "was transported to the hospital for his injuries." The crash report revealed that the motorcycle sustained disabling damage caused by the hit-and-run accident. The responding police officer also noted in the crash report that the motor vehicle was described as a white Ford pickup truck, that the truck sustained functional damage, and that the "[c]rash [t]ype" was "[h]ead on." A 911 event chronology based on call comments provided that the white pickup truck had a topper and that the truck "should have d[a]rk blue or purple paint from the motorcycle / right front end & right pass[enger] side damage."[3]
In the deposition of Officer Sean Coe, who was employed by the Flint Police Department at the time of the accident and prepared the traffic crash report, he could not recall where or from whom he obtained the information that the hit-and-run vehicle was a white Ford pickup truck. Officer Coe had no independent recollection of the accident and had to rely on his crash report while being deposed. He could not provide any testimony outside the four corners of the crash report regarding the nature of the impact between the motor vehicle and the motorcycle and the extent of the damages.
An EMS ambulance report set forth a narrative concerning the dispatch and response to the accident scene. The report stated that the motorcycle had extensive front-end damage, that plaintiff was alert and oriented, and that bystanders indicated that plaintiff had at first lost consciousness. Plaintiff informed EMS personnel that he had been traveling down the road at about 30 to 40 mph when a vehicle turned in front of him and that plaintiff then struck the front of the vehicle, causing him to hit the curb with his motorcycle and flip over the cycle's handlebars. On July 5, 2016, a police reporter for MLive published an article in the Flint Journal regarding the accident. This was part of a police effort to identify the hit-and-run driver. The article indicated that "[t]he motorcyclist hit a white pickup truck with a white topper that was traveling southbound . . . ." The article further provided that the "[p]reliminary investigation reveal[ed] [that] the truck made a left hand turn in front of the motorcycle and proceeded eastbound[.]"
Danielle Flesher is plaintiff's sister; she became an integral part of the case. In her deposition, Danielle testified that she spoke to her brother in the hospital and that he indicated "that it was a truck" that struck him, but he did not know who was driving the truck. Danielle stated that she was on Facebook after seeing plaintiff in the hospital and discovered that the local police department had a "blotter" that referenced the accident. Danielle testified that three individuals, two women and a man, posted comments in relation to the accident mentioned on the Facebook police blotter and that she privately messaged those persons about the accident over the next day or so. They informed Danielle that they were in the neighborhood where the accident occurred and had witnessed the accident or the immediate aftermath of the crash. Although they could not identify the driver of the hit-and-run motor vehicle, they described the vehicle as being either a white truck with a topper or a white SUV-type of vehicle. Danielle believed that all three individuals had spoken to the police at the accident scene. Danielle claimed that they were of the opinion that the front driver's side of the motor vehicle had struck the motorcycle.[4] None of the individuals indicated to Danielle that the rear window of the vehicle was smashed, broken, or missing.[5]
On July 5, 2016, Danielle headed to plaintiff's house to let his dog out. As she neared the home, Danielle passed a street which was close to the accident scene and noticed a white vehicle parked on the side of the street that she thought might perhaps be the hit-and-run vehicle. There is no dispute that the vehicle, a white 2004 GMC Yukon Denali XL, was owned by Fetzer at the time of the accident. Danielle testified that she circled back, drove down the street, and parked away from the Yukon. She then walked up to the Yukon and examined it, taking photographs of the vehicle. Danielle claimed that the Yukon "had blue paint and damage to the front and to the side and the rear[.]" She testified that her brother's motorcycle was blue. Danielle asserted that there was "intense damage . . . with blue paint." When asked what she meant by "intense damage," Danielle explained that the Yukon had "[p]retty big dents and scrapes to the side" and that "[y]ou could tell that it had hit something."[6] She also testified that there were "different marks going from the front end of the vehicle" and that the rear window of the Yukon was either damaged or missing.[7] Upon her discovery and observations, Danielle called 911.
According to Danielle, she returned to her parked car, but before she left the area, she saw Fetzer, whom she did not know at the time, walk up to and enter the Yukon. Danielle then pulled up next to the Yukon, such that the vehicles were side-by-side, and lowered her passenger-side window, catching Fetzer's attention. With both persons remaining in their vehicles, they carried on a short conversation. Danielle testified that she asked Fetzer whether he had been in an accident the previous night, and he denied any involvement in an accident. Danielle asserted that Fetzer at first stated that he had attended a fireworks show in Frankenmuth on the Fourth of July, but he then claimed that it was a fireworks show in Bay City, which is about one hour away.[8] Danielle testified that she asked Fetzer about the cause of the damage to his vehicle and that he responded that it was none of her business. When she told him that she had contacted the police, Fetzer put the Yukon in reverse and backed all the way down the street and fled, inferentially suggesting that he was trying to prevent Danielle from seeing his license plate number.
Danielle noticed that three individuals came out of the home where Fetzer had been before he walked to his parked Yukon. On Danielle's inquiry, the individuals, who were on the porch of the house, denied knowing Fetzer. She once again parked down the street from where the Yukon had been sitting, waiting for the police to arrive while the three individuals stared at her from a distance, which made her uncomfortable. After about 15 to 20 minutes, Danielle again called 911, informing the operator that Fetzer had driven away. The 911 operator recommended that she leave the area because the police would not respond to the location now that Fetzer was gone. The operator suggested that Danielle contact the detective assigned to the accident investigation. Danielle testified that later that day, July 5th, she sent the photographs of the Yukon to the assigned detective by e-mail, and he indicated that he would investigate the matter and that it was likely that Fetzer was already taking steps to repair or hide the damage. Danielle's testimony seemed to indicate that the detective was not pleased that she had approached Fetzer because Fetzer now knew he would eventually be questioned, thereby giving him the opportunity to cover up the damage in the meantime.
Plaintiff, who was hospitalized for over a month, testified at his deposition that the hit-and-run vehicle initially veered into his lane of travel, appearing as if it was going to make a turn, which caused plaintiff to take evasive action. Plaintiff explained that the motor vehicle then returned to its own lane and that plaintiff responded by straightening his path of travel. But, according to plaintiff, the motor vehicle then once again veered into his lane of travel and the collision occurred.[9] Plaintiff testified that the vehicle struck the back end of his motorcycle. He described his motorcycle as being painted blue. Plaintiff additionally testified as follows:
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