# Estate of Briana C Hendrix v. Keith E Singleton

> Michigan Court of Appeals · December 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11221437

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** December 12, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF BRIANNA C. HENDRIX, AMC and UNPUBLISHED
AMH, Minors, by Next Friend ANASTASIA December 12, 2025
CARTER, and ADH, Minor, by Next Friend 10:50 AM
ROBERT MONTGOMERY,

Plaintiffs-Appellants,

v No. 369566
Oakland Circuit Court
KEITH E. SINGLETON, CRYSTAL N. PARKER- LC No. 2021-185474-NF
SINGLETON, also known as CRYSTAL N.
PARKER, and FARMERS INSURANCE
EXCHANGE,

Defendants-Appellees,
and

ASPIRE GENERAL INSURANCE SERVICE,
ASPIRE SHIELD AND DRIVEN SOLUTIONS,
MICHIGAN ASSIGNED CLAIMS PLAN, and USA
UNDERWRITERS,

Defendants.

Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.

PER CURIAM.

In this action to recover personal injury protection (“PIP”) benefits under the no-fault act,
MCL 500.3101 et seq., plaintiffs, Estate of Brianna C. Hendrix (“plaintiff estate”); AMC and
AMH, by next friend Anastasia Carter; and ADH, by next friend Robert Montgomery, appeal by

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right the order granting summary disposition in favor of defendant, Farmers Insurance Exchange
(“Farmers”). Finding no errors warranting reversal, we affirm.1

I. BASIC FACTS AND PROCEDURAL HISTORY

This case presents a complicated procedural history and arises from the death of the
decedent, Brianna C. Hendrix, and the subsequent attempt to recover no-fault benefits by plaintiff
estate and the decedent’s surviving minor children, AMC, AMH, and ADH (collectively,
“surviving children” or “plaintiff children”). On December 23, 2019, the decedent applied for
automobile insurance through defendant USA Underwriters (“USA”). The application required
the decedent to disclose whether she “ever had [her] driver’s license suspended or revoked,” to
which she responded no. However, driving records reveal that the decedent’s driver’s license was
suspended on six separate occasions prior to her application. Nonetheless, USA issued an
insurance policy to the decedent based on the information contained in her application.

On January 4, 2020, the decedent was a passenger in the back seat of a vehicle driven by
defendant Keith E. Singleton. Singleton was driving while intoxicated, and eventually lost control
and crashed the vehicle. The decedent ultimately died as a result of the injuries she sustained in
the accident. Singleton was uninsured, and the vehicle he drove was owned by his mother,
defendant Crystal N. Parker-Singleton.

In January 2021, plaintiff estate initiated this lawsuit, alleging claims of negligence and
wrongful death against Singleton, and a claim of negligence against Parker-Singleton. Plaintiff
estate also brought a claim against the Michigan Assigned Claims Plan (“MACP”) for failure to
pay no-fault benefits. In February 2021, plaintiff estate amended its complaint to add USA as a
defendant, again asserting a claim for failure to pay no-fault benefits. Plaintiff estate later added
a claim for breach of contract against USA by way of a second-amended complaint.

In October 2021, USA moved for summary disposition under MCR 2.116(C)(10), seeking
to rescind the decedent’s insurance policy based on material misrepresentations in her application
for insurance. On November 4, 2021, following a hearing, the trial court granted USA’s motion
in a written opinion and order. It rejected plaintiff estate’s argument that the “innocent third-party
rule” required it to balance the equities as to the surviving children because “while the children
may be the underlying beneficiaries, they are not the underlying claimant.” The trial court declared
the USA-issued policy void and determined that the MACP was the highest-priority insurer.

Shortly thereafter, the MACP assigned plaintiff estate’s claim for benefits to Farmers, and
in December 2021, the trial court entered a stipulated order substituting Farmers in place of the
MACP, dismissing the MACP without prejudice, and granting leave for plaintiff estate to file an
amended complaint. Plaintiff estate then filed a third-amended complaint against Farmers,
alleging a claim for failure to pay no-fault benefits.

1
This appeal primarily involves claims by plaintiff estate and plaintiff children against Farmers.
Although defendants Keith E. Singleton and Crystal N. Parker-Singleton are designated as
appellees in this matter, they have not filed briefs on appeal.

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In April 2023, pursuant to leave granted by the trial court, Farmers moved for summary
disposition pursuant to MCR 2.116(C)(10). Farmers argued that plaintiff estate’s claim should be
dismissed because the allowable expenses that plaintiff estate was entitled to under MCL 500.3107
were already paid, and plaintiff estate was not entitled to survivor’s benefits under MCL 500.3108.
Instead, survivor’s benefits were payable to the surviving children, who were not parties to the
lawsuit. Plaintiff estate opposed the motion, and separately moved in the trial court for leave to
substitute plaintiff estate for the surviving children or allow the surviving children and their
guardians to intervene and pursue survivor’s benefits.

On May 31, 2023, the trial court issued an opinion and order determining that the surviving
children were the real parties in interest with respect to plaintiff estate’s claim for survivor’s
benefits under MCL 500.3108. The court declined to dismiss plaintiff estate entirely, reasoning
that its claims under MCL 500.3107 remained unresolved. Therefore, the trial court granted in
part and denied in part Farmers’ motion, and granted plaintiff estate’s motion to amend the
complaint to include the surviving children as parties to the lawsuit. A fourth-amended complaint
was filed in June 2023, adding plaintiff children. In a separate order, Anastasia Carter was
appointed next friend of AMC and AMH, and Robert Montgomery was appointed next friend of
ADH.

In July 2023, plaintiff children moved to reinstate the rescinded USA policy, arguing that
they were innocent third parties who had no active role in the decedent’s misrepresentation on her
application for insurance. Because plaintiff children were now parties to the lawsuit, reinstatement
of the USA policy was warranted. Plaintiff children also sought leave in a separate motion to
amend their complaint to substitute Farmers for USA. The trial court denied plaintiff children’s
motions in an August 22, 2023 opinion and order, reasoning that there was no policy to warrant
adding USA as a defendant. The trial court also denied plaintiff children’s request to amend the
complaint based on undue delay, undue prejudice, and the repeated failure to cure deficiencies
throughout the course of the previously-allowed amendments.

In October 2023, plaintiff estate moved to dismiss its claim against Farmers, asserting that
its only remaining claim was for medical expenses and that Farmers paid an outstanding Medicaid
lien. The next day, Farmers moved for leave to file an amended answer to assert a counterclaim
against plaintiff estate. Farmers argued that before plaintiff children were added as parties to the
lawsuit, it paid survivor’s benefits to plaintiff estate for the benefit of plaintiff children. However,
after plaintiff children were added as parties, they disclosed their receipt of social security benefits,
which were required to be set off from the amount paid. As a result, Farmers claimed it was
entitled to a refund based on the setoff. Despite these payments, plaintiff children contended that
they never received the survivor’s benefits, which were paid to plaintiff estate and used for attorney
fees and other administrative costs.

While Farmers agreed that plaintiff estate’s claims should be dismissed with prejudice, it
requested the court to allow Farmers to amend its answer to bring a counterclaim against plaintiff
estate for its good-faith payment of survivor’s benefits. In November 2023, the trial court issued
a written opinion and order granting plaintiff estate’s motion to dismiss. While the court
acknowledged that Farmers’ argument for a counterclaim had merit, it nonetheless denied
Farmers’ motion for leave to file a counterclaim given that trial was scheduled in less than two

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weeks. It noted, however, that Farmers “may file a separate lawsuit against the Estate seeking
redress for the claims outlined in its Motion.”

The parties proceeded towards trial, each submitting their respective trial briefs. In
November 2023, based on review of the parties’ trial briefs, the trial court adjourned the trial and
ordered Farmers to file a motion for summary disposition under MCR 2.116 “outlining the legal
issues presented in its trial brief.” It also directed plaintiff children to file a response in accordance
with MCR 2.116(G)(1)(a)(ii). In December 2023, Farmers filed its motion for summary
disposition pursuant to MCR 2.116(C)(10). It argued that its prior payment for survivor’s loss
benefits to plaintiff estate fulfilled its obligation to pay benefits, and that plaintiff children’s claim
for additional survivor’s loss benefits lacked factual and legal support. Farmers further maintained
that it was entitled to a setoff of $32,024 based on social security benefits received by plaintiff
children. Plaintiff children filed a response to Farmers’ motion, but it was untimely.

On January 12, 2024, the trial court issued a written opinion and order granting Farmers’
motion for summary disposition. The trial court declined to consider plaintiff children’s untimely
response to the motion, treating Farmers’ motion as unopposed. The court determined that plaintiff
children admitted to receiving $32,024 in social security survivor’s benefits, which were required
to be set off from Farmers’ $17,057.35 award of survivor’s loss benefits. The trial court also
declined to consider additional claims for damages asserted by plaintiff children, which were
“raised for the first time over 18 months after the initiation of this lawsuit” in the parties’
September 7, 2023 joint final pretrial order. The trial court then dismissed plaintiff children’s
remaining claims with prejudice. This appeal ensued.

II. STANDARDS OF REVIEW

Whether this Court has jurisdiction to hear an appeal is an issue of law that this Court
reviews de novo. Natural Resources Defense Council v Dep’t of Environmental Quality, 300 Mich
App 79, 84; 832 NW2d 288 (2013). “Issues involving mootness are questions of law that are
reviewed de novo.” Adams v Parole Bd, 340 Mich App 251, 259; 985 NW2d 881 (2022).

We also review a trial court’s decision on a motion for summary disposition de novo.
Chisholm v State Police, 347 Mich App 646, 651-652; 16 NW3d 563 (2023). “A motion for
summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the claim and is
properly granted when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Id. at 652. “A genuine issue of material fact exists when the
record leaves open an issue on which reasonable minds might disagree.” Id. On review, this Court
“consider[s] the documentary evidence in the light most favorable to the nonmovant.” Id.

“Finally, the application of an equitable doctrine such as rescission is also reviewed de
novo.” Wilmore-Moody v Zakir, 511 Mich 76, 83; 999 NW2d 1 (2023). “[B]ecause rescission is
an equitable remedy, it should be granted only in the sound discretion of the court.” Id. at 85
(quotation marks and citations omitted). “An abuse of discretion occurs when the decision falls
outside the range of reasonable and principled outcomes,” and “[a]n abuse of discretion necessarily
occurs when the trial court makes an error of law.” Pioneer State Mut Ins Co v Wright, 331 Mich
App 396, 405; 952 NW2d 586 (2020).

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III. ANALYSIS

A. JURISDICTION AND MOOTNESS

Farmers argues that this Court lacks jurisdiction with respect to plaintiff estate’s appeal of
the trial court orders involving Farmers because plaintiff estate is not an aggrieved party and its
voluntary dismissal of its claim rendered its appeal moot. We disagree.

On appeal, plaintiff estate challenges the trial court’s November 14, 2021 order granting
summary disposition in favor of USA and the May 31, 2023 order granting partial summary
disposition in favor of Farmers. In its brief on appeal, Farmers initially argued that this Court
lacked jurisdiction with respect to plaintiff estate’s entire portion of the appeal. However, during
oral argument in this Court, Farmers conceded that plaintiff estate was an aggrieved party with
respect to the trial court’s grant of summary disposition in favor of USA. Therefore, we must
determine whether this Court has jurisdiction to consider plaintiff estate’s appeal of the trial court’s
May 31, 2023 order granting partial summary disposition in favor of Farmers.

Farmers maintains that because plaintiff estate voluntarily moved to dismiss its remaining
claims against Farmers without reserving its appellate rights, it is not an aggrieved party under
MCR 7.203(A). Under MCR 7.203(A)(1), this Court has jurisdiction of an appeal by right “filed
by an aggrieved party” from “[a] final judgment or final order of the circuit court.” Our Supreme
Court has articulated several principles to consider in determining whether a party is aggrieved:

To be aggrieved, one must have some interest of a pecuniary nature in the outcome
of the case, and not a mere possibility arising from some unknown and future
contingency. An aggrieved party is not one who is merely disappointed over a
certain result. Rather, to have standing on appeal, a litigant must have suffered a
concrete and particularized injury, as would a party plaintiff initially invoking the
court’s power. The only difference is a litigant on appeal must demonstrate an
injury arising from either the actions of the trial court or the appellate court
judgment rather than an injury arising from the underlying facts of the case.
[Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291-292; 715 NW2d
846 (2006) (quotation marks and citations omitted).]

We conclude that plaintiff estate was aggrieved by the May 31, 2023 order granting partial
summary disposition in favor of Farmers, which determined that plaintiff estate was not the proper
party to pursue survivor’s benefits. Plaintiff estate had a pecuniary interest in whether it was
entitled to receive benefits under MCL 500.3108, and plaintiff estate suffered “a concrete and
particularized injury” from the trial court’s grant of partial summary disposition on the issue.
Federated Ins Co, 475 Mich at 291.

Farmers, however, maintains that plaintiff estate is not an aggrieved party by virtue of its
October 24, 2023 motion to dismiss its remaining claims against Farmers. “Although parties
typically may appeal a final order by right, the general rule is that parties who consent to a final
order cannot appeal its merits.” Jaber v P & P Hospitality, LLC, ___ Mich App ___, ___; ___
NW3d ___ (2024) (Docket No. 363572); slip op at 4. Farmers presents some argument regarding
the applicability of Jaber, which held that “an appellant may raise issues arising out of an earlier

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order relating to one party, even if the appellant has failed to reserve the right to appeal in a
subsequent, stipulated order of dismissal as to another party.” Id. at ___; slip op at 2. However,
Jaber involved a stipulated order of dismissal, and this Court analyzed agreements such as
“consent judgments, agreements regarding settlements, and stipulated orders . . . in accordance
with general contract law.” Id. at ___; slip op at 9. Here, there was no such agreement between
the parties. Indeed, plaintiff estate moved to dismiss its remaining claims because Farmers refused
to stipulate to its dismissal.

To the extent that plaintiff estate’s October 24, 2023 motion to dismiss its remaining claims
can be construed as a stipulated order of dismissal, plaintiff estate is not asserting error arising
from the trial court’s grant of its own motion. Instead, it challenges the May 31, 2023 order
granting partial summary disposition based on plaintiff estate’s entitlement to benefits under MCR
500.3108. Jaber does not preclude the exercise of jurisdiction under these circumstances. See
Jaber, ___ Mich App at ___; slip op at 11 (“[W]e acknowledge the long-established rule that a
party cannot stipulate to a matter and then complain on appeal about the stipulated matter. But
plaintiff is not asserting error in the stipulated order; rather, plaintiff contends that the error was
inherent in the earlier order granting summary disposition to P & P”) (citation omitted).

Farmers also asserts that plaintiff estate’s claim is moot, citing People v Richmond, 486
Mich 29, 34; 782 NW2d 187 (2010), which held that a prosecutor’s voluntary dismissal of criminal
charges against a defendant rendered its subsequent appeal moot. “Whether a case is moot is a
threshold issue that a court addresses before it reaches the substantive issues of the case itself.” Id.
at 35. “[A] case is moot when it presents nothing but abstract questions of law which do not rest
upon existing facts or rights.” Id. (quotation marks and citation omitted). “It is well established
that a court will not decide moot issues. This is because it is the principal duty of this Court . . . to
decide actual cases and controversies.” Id. at 34 (quotation marks and citations omitted).

This case does not present a situation where plaintiff estate “denied itself appellate review
by obtaining dismissal of its own case . . . .” Id. at 37. Notably, the trial court’s May 31, 2023
partial grant of summary disposition related to plaintiff estate’s pursuit of survivor’s benefits under
MCL 500.3108. In that same order, the trial court denied Farmers’ motion with respect to plaintiff
estate’s claim to benefits under MCL 500.3107, reasoning that “the Estate’s claims under MCL
500.3107 have not been resolved.” Following several more months of litigation, plaintiff estate
moved to dismiss its remaining claim against Farmers, reasoning that “the only remaining claim
the Estate had against Farmers was for medical expenses” under MCL 500.3107. While the trial
court granted plaintiff estate’s motion with respect to its remaining MCL 500.3107 claims, there
is still an existing controversy for this Court to consider regarding the trial court’s dismissal of
plaintiff estate’s claim under MCL 500.3108. This case does not merely present “abstract
questions of law which do not rest upon existing facts or rights.” Richmond, 486 Mich at 35
(quotation marks and citation omitted). Accordingly, plaintiff estate’s October 24, 2023 motion
to dismiss its remaining claims does not render moot its challenge to the trial court’s May 31, 2023
partial grant of summary disposition.

B. RESCISSION

Plaintiff estate and plaintiff children challenge the trial court’s November 4, 2021 order
granting summary disposition in favor of USA and its August 22, 2023 order denying plaintiff

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children’s motion to reinstate the USA policy, arguing that the trial court was required to apply
the Pioneer balancing test before deciding whether to rescind the decedent’s auto-insurance policy.
We disagree.

“[A]utomobile insurance contracts are governed by a combination of statutory provisions
and the common law of contracts,” and “[i]nsurance policies are contracts subject to the same
contract construction principles that apply to any other species of contract.” Bazzi v Sentinel Ins
Co, 502 Mich 390, 399; 919 NW2d 20 (2018) (quotation marks and citations omitted). “[B]ecause
insurance policies are contracts, common-law defenses may be invoked to avoid enforcement of
an insurance policy, unless those defenses are prohibited by statute.” Titan Ins Co v Hyten, 491
Mich 547, 554; 817 NW2d 562 (2012). One such common-law defense is fraud, which “include[s]
actionable fraud, also known as fraudulent misrepresentation; innocent misrepresentation; and
silent fraud, also known as fraudulent concealment.” Id. at 555. To establish actionable fraud, a
party must prove:

(1) That defendant made a material representation; (2) that it was false; (3) that
when he made it he knew that it was false, or made it recklessly, without any
knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance
upon it; and (6) that he thereby suffered injury. Each of these facts must be proved
with a reasonable degree of certainty, and all of them must be found to exist; the
absence of any one of them is fatal to a recovery. [Id. (quotation marks and citations
omitted).]

Regarding innocent misrepresentation, “the party alleging innocent misrepresentation is not
required to prove that the party making the misrepresentation intended to deceive or that the other
party knew the representation was false.” M&D, Inc v WB McConkey, 231 Mich App 22, 28; 585
NW2d 33 (1998). “[A] fact or representation in an application is material where communication
of it would have had the effect of substantially increasing the chances of loss insured against so as
to bring about a rejection of the risk or the charging of an increased premium.” Oade v Jackson
Nat’l Life Ins Co of Mich, 465 Mich 244, 253-254; 632 NW2d 126 (2001) (quotation marks and
citation omitted).

Where fraud is established, a party may seek “grounds to retroactively avoid contractual
obligations through traditional legal and equitable remedies such as cancellation, rescission, or
reformation . . . .” Titan, 491 Mich at 558. “Generally, [f]raud in the inducement to enter a
contract renders the contract voidable at the option of the defrauded party . . . . For that reason, an
insurance policy procured by fraud may be declared void ab initio at the option of the insurer.”
Bazzi, 502 Mich at 408 (quotation marks and citations omitted; alteration in original).

In this case, there is no genuine issue of material fact that the decedent made a material
misrepresentation on her application for insurance with USA. The decedent falsely represented
on her application that she never had her driver’s license suspended or revoked, when in fact, it
was suspended on six separate occasions prior to her application for insurance, with the last
suspension being as recent as December 2017. USA submitted an affidavit by Takara Thompkins,
an underwriting specialist for USA, stating that USA issued the decedent a policy based on the
information contained in her application and that USA would not have issued the decedent a policy

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if her license was suspended or revoked in the three years prior to her application. Had the
decedent disclosed her prior license suspensions, it would have revealed that her license was
suspended in December 2017, which was within the three years prior to her December 2019
application for insurance. This would have made the decedent’s application “not acceptable for
the program of insurance.” Under these circumstances, it was permissible for USA to void the
policy ab initio based on the fraudulent manner in which it was acquired.

Notably, rescission “does not function by automatic operation of the law. Instead, because
rescission is an equitable remedy, it should be granted only in the sound discretion of the court.”
Wilmore-Moody, 511 Mich at 85 (quotation marks and citations omitted). Plaintiffs argue that the
trial court erred by failing to balance the equities between plaintiff children and USA before
determining whether rescission was proper.

Our Supreme Court has stated that between two innocent parties, “rescission does not
function by automatic operation of the law,” and “[j]ust as the intervening interest of an innocent
third party does not altogether bar rescission as an equitable remedy, neither does fraud in the
application for insurance imbue an insurer with an absolute right to rescission of the policy with
respect to third parties.” Bazzi, 502 Mich at 411. Instead, “when two equally innocent parties are
affected, the court is required, in the exercise of [its] equitable powers, to determine which
blameless party should assume the loss.” Id. at 410-411 (quotation marks and citation omitted;
alteration in original). This Court has adopted five factors for trial courts to evaluate when
balancing the equities between an insurer and innocent third party:

(1) the extent to which the insurer could have uncovered the subject matter of the
fraud before the innocent third party was injured; (2) the relationship between the
fraudulent insured and the innocent third party to determine if the third party had
some knowledge of the fraud; (3) the nature of the innocent third party’s conduct,
whether reckless or negligent, in the injury-causing event; (4) the availability of an
alternate avenue for recovery if the insurance policy is not enforced; and (5) a
determination of whether policy enforcement only serves to relieve the fraudulent
insured of what would otherwise be the fraudulent insured’s personal liability to
the innocent third party. [Pioneer, 331 Mich App at 411.]

On appeal, plaintiff estate and plaintiff children argue that the trial court was required to
evaluate the foregoing factors before determining whether to rescind USA’s policy. However,
their argument ignores the principle that “[s]urvivor benefits are strictly derivative,” and “the right
of the survivor to recover under the no-fault act is completely dependent upon the entitlement of
the injured person had he lived.” DeSot v Auto Club Ins Ass’n, 174 Mich App 251, 256; 435 NW2d
442 (1988). See also Belcher v Aetna Cas & Surety Co, 409 Mich 231, 255; 293 NW2d 594 (1980)
(“[A] survivor’s entitlement to benefits may be said to be derivative of or dependent upon the
deceased injured person’s entitlement to benefits had he survived.”). Because the decedent would
not be entitled to benefits from USA had she survived, plaintiff children are not eligible for
survivor’s benefits under the USA policy. Plaintiff children are not an innocent third party under
Bazzi and Pioneer, and the trial court did not err by granting USA’s motion for summary
disposition and denying plaintiff children’s motion to reinstate the USA policy.

C. REAL PARTY IN INTEREST

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Plaintiff estate challenges the trial court’s May 31, 2023 grant of partial summary
disposition in favor of Farmers, arguing that plaintiff estate was the real party in interest and
entitled to pursue survivor’s benefits under MCL 500.3108. We disagree.

MCR 2.201(B) provides that “[a]n action must be prosecuted in the name of the real party
in interest.” Further,

A personal representative, guardian, conservator, trustee of an express trust,
a party with whom or in whose name a contract has been made for the benefit of
another, or a person authorized by statute may sue in his or her own name without
joining the party for whose benefit the action is brought. [MCR 2.201(B)(1)
(emphasis added).]

“Personal protection insurance benefits are payable to or for the benefit of an injured person or, in
case of his or her death, to or for the benefit of his or her dependents.” MCL 500.3112. “The [no-
fault act] operates to compensate only a limited class of persons for economic losses sustained as
a result of motor vehicle accidents. Under personal protection insurance, benefits are made
payable only to injured persons or surviving dependents of the injured person.” Belcher, 409 Mich
at 243-244 (emphasis added). “Personal protection insurance benefits are payable to two separate
recipient categories: an[] ‘injured person’ or ‘his dependents.’ An injured person is eligible to
receive benefits payable under [MCL 500.3107]. Surviving dependents are eligible to receive
benefits payable under [MCL 500.3108].” Id. at 247 (some citations omitted).

In this case, the personal representative of the decedent’s estate is court-appointed attorney
Darren Findling. As Farmers points out, Findling did not pursue this no-fault action in his own
name. Therefore, under MCR 2.201(B)(1), “the party for whose benefit the action is brought” was
required to be joined in the lawsuit. While an injured person may receive benefits under MCL
500.3107, survivor’s benefits under MCL 500.3108 are payable to surviving dependents, which is
a “separate recipient categor[y].” Belcher, 409 Mich at 247. Based on these principles, the trial
court did not err when it determined that plaintiff children—and not plaintiff estate—were the
proper party to pursue survivor’s benefits under MCL 500.3108.

Plaintiff estate argues that the trial court’s determination that it was not the proper party to
pursue survivor’s benefits is precluded by the court’s November 4, 2021 order granting summary
disposition in favor of USA. In that order, the trial court stated, “The Court finds that while the
children may be the underlying beneficiaries, they are not the underlying claimant. [The
decedent’s] Estate is the underlying claimant.” In support of this assertion, plaintiff estate relies
on the doctrine of res judicata, which is a legal doctrine that prevents relitigation of an issue or
claim. C-Spine Orthopedics, PLLC v Progressive Mich Ins Co, 346 Mich App 197, 203; 12 NW3d
20 (2023). Res judicata “bars a subsequent action when (1) the prior action was decided on the
merits, (2) both actions involve the same parties or their privies, and (3) the claims in the second
case were, or could have been, resolved in the first case.” Id. The doctrine of res judicata is clearly
inapplicable here because the trial court orders at issue were entered during the same proceeding.
Further, the trial court’s November 4, 2021 grant of summary disposition involved the application
of the innocent-third party rule. The parties did not address, nor did the trial court decide, whether
plaintiff estate was the proper party to pursue survivor’s benefits under MCL 500.3108. Plaintiff
estate’s contention that the trial court was bound by its prior decision is therefore meritless.

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D. SURVIVOR’S BENEFITS

Plaintiff children lastly challenge the trial court’s January 12, 2024 grant of summary
disposition in favor of Farmers, arguing that Farmers was not entitled to a setoff from plaintiff
children and that plaintiff children presented factual support for their claim of additional survivor’s
benefits. We disagree as to each contention.

We first note that plaintiff children’s response to Farmers’ motion for summary disposition
was untimely. After reviewing the parties’ respective trial briefs, the trial court directed Farmers
to file a motion for summary disposition and ordered plaintiff children to file a response in
accordance with MCR 2.116(G)(1)(a)(ii) (providing that any response to a motion for summary
disposition “must be filed and served at least 7 days before the hearing”). Farmers filed its motion
on December 12, 2023, noticing the hearing for January 10, 2024. Plaintiff children did not
respond until January 8, 2024, only two days before the hearing. Based on plaintiff children’s
untimely motion, the trial court treated Farmers’ motion as unopposed. The trial court did not
abuse its discretion by enforcing its scheduling order and declining to consider plaintiff children’s
untimely filing. See Prussing v Gen Motors Corp, 403 Mich 366, 370; 269 NW2d 181 (1978)
(“Prussing’s belated attempt to file an affidavit in opposition was in such form and manner that
the judge’s failure to treat it as a timely opposing affidavit was not an abuse of discretion.”);
Kemerko Clawson LLC v RXIV Inc, 269 Mich App 347, 352; 711 NW2d 801 (2005) (“Because
defendants’ motion came several weeks after the deadline established by the scheduling order and
only a few weeks before the trial was to begin, we cannot conclude that the trial court’s decision
not to entertain the motion was an abuse of discretion.”). Notwithstanding, the trial court also
properly granted Farmers’ motion for summary disposition on the merits.

Plaintiff children first contend that the trial court erred when it determined that Farmers
was entitled to a setoff based on their receipt of social security survivor’s benefits. “Benefits
provided or required to be provided under the laws of any state or the federal government shall be
subtracted from the personal protection insurance benefits otherwise payable for the injury under
this chapter.” MCL 500.3109(1). Social security benefits are benefits provided under the laws of
the federal government “and shall be subtracted from the no-fault personal protection insurance
benefits otherwise payable for an automobile injury.” Mich Ed Employees Mut Ins Co v Morris,
460 Mich 180, 194; 596 NW2d 142 (1999). This applies equally in the context of survivor’s
benefits. Id. at 192.

Farmers presented documentary evidence that it paid plaintiff estate $17,057.35 in
survivor’s loss benefits. In the parties’ joint settlement conference statement filed on September
25, 2023, the parties acknowledged as an “uncontested fact[],” that “[e]ach of [the decedent’s]
daughters received a lump sum payment of $10574 from SSA,” and that “Robert Montgomery
received a total lump sum payment of $1856 from SSA,” making the total amount of social security
benefits received by plaintiff children $32,024. Given that plaintiff children acknowledged their
receipt of social security benefits, which are required to be set off from payable survivor’s benefits
under the no-fault act, the trial court did not err in determining that Farmers was entitled to a setoff
in the amount of $32,024.

Plaintiff children contend that because they never received the benefits paid to plaintiff
estate, Farmers should not be credited for their payment of survivor’s loss benefits. Plaintiff

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children asserted that they did not receive this payment because plaintiff estate applied it towards
administrative fees. However, under MCL 500.3112, an insurer’s payment “in good faith of
personal protection insurance benefits, to or for the benefit of a person who it believes is entitled
to the benefits, discharges the insurer’s liability to the extent of the payments unless the insurer
has been notified in writing of the claim of some other person.” Farmers paid survivor’s benefits
to plaintiff estate in December 2021, and March 2022. At the time, plaintiff estate was the only
party in the lawsuit and it was asserting claims for both allowable expenses under MCL 500.3107
and survivor’s benefits under MCL 500.3108. Indeed, plaintiff estate’s amended complaint against
Farmers explicitly alleged that “the minor children are entitled to . . . survivor’s benefits.”
Therefore, Farmers’ good-faith payment of survivor’s benefits to plaintiff estate for the benefit of
plaintiff children discharged its liability to pay survivor’s benefits.

On appeal, plaintiff children argue that the trial court erred by failing to consider equity
when determining that Farmers was entitled to a setoff for the social security benefits paid to
plaintiff children. In addition to filing a late response to Farmers’ motion for summary disposition,
plaintiff children did not preserve this argument for appeal by raising it in the trial court.
Therefore, we decline to address it. See Tolas Oil & Gas Exploration Co v Bach Servs & Mfg,
LLC, 347 Mich App 280, 289; 14 NW3d 472 (2023) (“If a litigant does not raise an issue in the
trial court, this Court has no obligation to consider the issue.”).

Plaintiff children lastly contend that the trial court erred by determining that they failed to
present a genuine issue of material fact regarding their claim for additional survivor’s benefits.
“In all cases, claimants bear the burden of proving the amount they would have earned had they
not been injured in the automobile accident.” Anton v State Farm Mut Auto Ins Co, 238 Mich App
673, 684; 607 NW2d 123 (1999). Further, under the burden-shifting framework of MCR
2.116(C)(10),

[T]he moving party has the initial burden of supporting its position by affidavits,
depositions, admissions, or other documentary evidence. The burden then shifts to
the opposing party to establish that a genuine issue of disputed fact exists . . . . If
the opposing party fails to present documentary evidence establishing the existence
of a material factual dispute, the motion is properly granted. [Quinto v Cross &
Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996) (citations omitted).]

It is well-settled that “parties opposing a motion for summary disposition must present more than
conjecture and speculation to meet their burden of providing evidentiary proof establishing a
genuine issue of material fact.” Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App
482, 486; 502 NW2d 742 (1993).

Farmers’ motion for summary disposition argued that plaintiff children were not entitled
to claim (1) the cash value of tax credits, (2) reimbursement for hair care as a tangible thing of
economic value, and (3) survivor’s benefits based on the loss of self-employment income. Plaintiff
children conceded in their response that they were no longer pursuing their claim for tax credits.
Plaintiff children also did not address whether hair care qualified as a tangible thing of economic
value. Instead, plaintiff children maintained that there was a genuine issue of material fact that
they were entitled to (1) $32,040 for loss of self-employment income and (2) additional wage-loss
benefits because the decedent was going to be working full-time at a rate of $15 per hour.

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In support of the claim that they were entitled to benefits for loss of self-employment
income, plaintiff children attached a 2018 tax return to their response, which listed the decedent’s
“[n]et business income” as $10,680. Based on this evidence, plaintiff children multiplied the
$10,680 figure by three, claiming that they were entitled to $32,040 for the self-employment
earnings the decedent would have earned in the three years following her death. However, as
Farmers points out, plaintiff children did not include the relevant tax documents for 2019, the year
immediately prior to the decedent’s death. Nor was there documentary evidence presented
regarding the circumstances of the decedent’s self-employment, such as what the decedent’s self-
employment consisted of.

To support their claim that they were entitled to additional wage-loss benefits for the
decedent’s anticipated full-time work and an increase in her hourly wage, plaintiff children
attached a records affidavit and accompanying wage sheet showing a gradual increase in wages
from $11.90 in August 2021, to $15 in August 2022. However, as Farmers points out, there is no
documentary evidence to support that the decedent was increasing her work schedule from part-
time to full-time.

Plaintiff children make several assertions on appeal about evidence they planned to
produce at trial, such as testimony that the decedent “intended to keep working in her business,”
“testimony of the Keeper of Records for [the decedent’s] former employer,” and “testimony from
various witnesses regarding [the decedent’s] intent to start working full-time.” However, “[a]
litigant’s mere pledge to establish an issue of fact at trial cannot survive summary disposition under
MCR 2.116(C)(10).” Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). Ultimately,
plaintiff children failed to support their claims for additional survivor’s loss benefits with
documentary evidence to create a genuine issue of material fact. The trial court did not err by
granting Farmers’ motion for summary disposition.

IV. CONCLUSION

We conclude that the trial court committed no reversible error and affirm the court’s (1)
November 4, 2021 order granting summary disposition to USA, (2) May 31, 2023 order granting
partial summary disposition in favor of Farmers, (3) August 22, 2023 order denying plaintiff
children’s motion to reinstate the USA policy, and (4) January 12, 2024 order granting summary
disposition in favor of Farmers.

Affirmed. Having prevailed on appeal, Farmers may tax costs. MCR 7.219(A).

/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Thomas C. Cameron

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11221437. Public record. Not legal advice.