Versan Lewis Saddler v. Evan Alan Chevela

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

VERSAN LEWIS SADDLER, UNPUBLISHED

November 21, 2023

Plaintiff-Appellant,

v No. 363198

Oakland Circuit Court

EVAN ALAN CHEVELA, CITY OF FERNDALE, LC No. 2021-191177-NI

and PROGRESSIVE MARATHON INSURANCE

COMPANY,

Defendants-Appellees.

Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.

PER CURIAM.

Plaintiff appeals as of right an order dismissing his complaint alleging first- and third-party

claims under the No-Fault Act that was entered after plaintiff failed to post a $25,000 security

bond as ordered by the trial court under MCR 2.109(A). We affirm.

I. BACKGROUND FACTS

On November 26, 2020, plaintiff had been driving his vehicle and was stopped at an

intersection to yield the right-of-way to a fire truck which was being operated by defendant Evan

Chevela for defendant City of Ferndale. During the course of making a left turn in front of

plaintiff’s vehicle, the fire truck made contact with the front fender on the driver’s side of

plaintiff’s vehicle. The accident was investigated by the police, for which dash camera video and

audio exists, and photographs were taken of plaintiff’s vehicle at the scene of the accident. Plaintiff

denied being injured and drove his vehicle home.

On November 17, 2021, plaintiff filed this lawsuit. Plaintiff’s complaint was amended on

February 9, 2022, and alleged negligence and gross negligence claims against Chevela and the

City of Ferndale for injuries he purportedly sustained in the accident. Plaintiff also alleged a claim

against defendant Progressive Marathon Insurance Company (Progressive), seeking personal

injury protection (PIP) benefits which purportedly were wrongly delayed or denied.

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On June 22, 2022, defendants Chevela and the City of Ferndale filed a motion for security

costs pursuant to MCR 2.109(A)—and Progressive filed a concurrence with that motion—arguing

that plaintiff should be required to file a security bond to continue litigating this lawsuit because

his claims were baseless. Defendants argued that the fire truck merely scraped plaintiff’s vehicle

during the left turn so that a small amount of paint was transferred between the vehicles. As the

Michigan State Police Trooper, Stephen James, indicated both in his report and in his deposition,

the incident resulted in “extremely minor damage” and probably did not even qualify for a crash

report because it was so minimal. And plaintiff indicated to Trooper James, on camera, at the

scene after this incident that he was not injured and did not need medical attention. Despite the

on-scene investigation which included photographs, plaintiff testified in his deposition that his

vehicle was pinned underneath the fire truck, i.e., the mid-section of the fire truck was on top of

his vehicle, trapping his vehicle underneath the fire truck. And he claimed that he had a flat tire,

a large dent behind the driver’s side headlight, and a broken axle—although the photographs taken

immediately after the incident do not depict this damage and plaintiff admitted that he drove his

vehicle home. Plaintiff also claimed to be severely injured in the accident although he denied

injury when asked by Trooper James and did not seek medical treatment for over a month after the

incident and the doctor who eventually evaluated plaintiff noted that he had a “low suspicion for

injuries.” Subsequently, plaintiff underwent two insurance medical examinations, one in February

2022 and one in March 2022, and both concluded that plaintiff’s symptoms were subjective and

there was no evidence that he sustained any traumatic injuries in the accident.

Defendants argued that MCR 2.109(A) allows for a party to request that another party post

a security bond when there is a substantial reason for doing so and such reason exists when the

case is based on a tenuous legal theory of liability or when the allegations are groundless and

unwarranted such as to be unlikely to succeed. Defendants argued that a security bond was proper

here because it was unlikely that plaintiff could show a threshold injury let alone that any purported

injury was caused by a minor scape with the fire truck, and it was clear that his claims about the

incident were incredible, i.e., not believable, considering the evidence. Moreover, plaintiff could

not establish that defendant Chevela was grossly negligent merely because he scraped the front

fender of plaintiff’s car while turning a corner with a fire truck. Therefore, plaintiff’s allegations

were groundless and unwarranted and the posting of a security bond was proper considering the

evidence and the enormous expense of litigating this matter, including, for example, by retaining

experts, deposing medical and other experts, ordering medical records, filing necessary motions,

and other expenses. Defendants Chevela and City of Ferndale attached numerous exhibits to their

motion, including excerpts of plaintiff’s deposition testimony, the police report, dash camera

footage, excerpts of Trooper James’ deposition testimony, photographs of the fire truck and

plaintiff’s vehicle, and medical reports and records related to plaintiff.

Plaintiff responded to defendants’ motion for security of costs, arguing that plaintiff

testified that when the fire truck “was turning it felt as though his entire car was pinned down and

trapped under the fire truck and that it broke his axle.” And later in the day, his tire went flat.

Plaintiff argued that he did not seek medical treatment immediately because the state was under a

mandatory lockdown due to the COVID-19 pandemic, but once the mandate was lifted, he sought

medical treatment. At that time, it was confirmed that plaintiff had sustained severe injuries in the

accident, including injuries to his head, neck, back, and hip. Plaintiff has since undergone two

surgeries: first, a cervical discectomy decompression at C5-6 and, second, a left L5-S1 discectomy.

He also has been diagnosed with a closed head traumatic brain injury. Plaintiff argued that

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defendants had been bullying him and engaging in “gotcha” moments from the beginning of this

lawsuit, and even paid “hired guns” to opine that nothing is wrong with him despite his medical

treatment and records detailing his injuries. And this motion, plaintiff argued, had the same

purpose. However, plaintiff argued, he is destitute and has no money to post security to litigate

his claims—which plead valid theories of liability. That is, there was no substantial reason for the

trial court to require him to post security because his claims were firmly grounded in MCL

500.3135 (permitting third-party no-fault claims) and MCL 500.3101 (permitting first-party no-

fault claims). Moreover, contrary to defendants’ argument, plaintiff’s claims were not groundless

and unwarranted considering the evidence and his documented injuries. Plaintiff argued that

defendants’ motion should be denied because, as held in Farleigh v Amalgamated Transit Union,

Local 1251, 199 Mich App 631, 634; 502 NW2d 371 (1993), “security should not be required

unless there is a substantial reason for doing so,” and no such reason existed in this case. Plaintiff

attached numerous exhibits to his responsive brief, including the entirety of his deposition

testimony, the police report, excerpts of his vehicle insurance policy, an article about the

government lockdown, and medical records.

Defendants filed a reply to plaintiff’s response to their motion for security of costs, arguing

that plaintiff failed to file an affidavit to support his claim of indigency as required by the court

rules, and thus, he should be required to post bond. Regardless, plaintiff’s claims were groundless,

unwarranted, and unlikely to succeed so even if he filed an affidavit, he should be required to post

bond. Plaintiff’s claims of bullying, surprise, and trickery were completely baseless, defendants

argued, and were designed merely to detract from his blatant dishonesty and exaggerations

regarding this incident and his alleged “injuries.” In fact, review of plaintiff’s medical records

reveal that no physician has claimed that this minor incident actually caused any of his purported

injuries, which are all based on purely subjective complaints. Clearly, defendants argued, no jury

was going to believe plaintiff’s “extensive exaggerated injuries resulted from a low-speed scrape

with the firetruck.” Thus, plaintiff should be ordered to post security to continue this litigation.

Defendants filed exhibits in support of their reply, which included a report of plaintiff’s

neuropsychological examination.

Thereafter, on June 28, 2022, plaintiff filed an affidavit stating that he had been

unemployed since the date of the collision and was unable to pay a security bond because he was

destitute.

On June 29, 2022, the trial court held oral arguments on defendants’ motion for security of

costs and the parties argued consistently with their briefs. We note that the trial court questioned

plaintiff’s counsel about whether she recalled that her client, plaintiff, testified that the fire truck

was on top of his car and that he was pinned in the vehicle and counsel responded in the affirmative.

The court then asked counsel: “Do you think that if a fire truck was on top of your car, your car

would have some significant damage?” Counsel replied: “I would think so but I’m not an expert

and our experts have said that it’s possible.” The court then asked counsel if the pictures showing

the damage to plaintiff’s car (mere paint transfers) was consistent with a full-sized fire truck being

on top of a car the size of plaintiff’s car—such that plaintiff claimed to be pinned inside that car—

and plaintiff’s counsel replied, “I think so.” The court then stated that it would take the matter

under advisement and issue a written opinion.

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On July 8, 2022, the trial court issued its opinion and order granting defendants’ motion

for security of costs and ordering plaintiff to post bond within 21 days of the date of the order or

his complaint would be dismissed. After reciting the underlying facts and evidence, the court

noted that: plaintiff’s vehicle sustained minimal damage; plaintiff’s testimony that the fire truck

was on top of his vehicle, pinning him in his vehicle, was inconsistent with the evidence; plaintiff’s

testimony about his alleged injuries was inconsistent and contradicted by the evidence; and that

plaintiff’s “medical records strongly indicate a likeliness of subjective rather than objective

injury.” The trial court concluded that plaintiff’s “testimony blatantly reveals serious issues with

his legal theory and credibility.” The court further held, “the inconsistencies in Plaintiff’s

deposition testimony, as well as the photographs of his car—both the on-scene photographs and

the mechanic’s shop photograph—call into question his credibility as well as his ability to

successfully prosecute his claims. The Court finds that it will be very difficult for Plaintiff to

demonstrate that this accident caused his alleged injuries. . . . Moreover, Defendant Chevela may

be entitled to governmental immunity.” The court rejected plaintiff’s claim that he was being

bullied by defendants, noting that defendants were entitled to challenge plaintiff’s testimony that

was wholly inconsistent with the evidence. Moreover, the court noted, plaintiff failed to provide

an affidavit in support of his claim of indigency as required by MCR 2.109(B)(1). Therefore, the

trial court granted defendants’ motion, requiring plaintiff to post a security bond in the amount of

$25,000.

Plaintiff filed a motion for reconsideration arguing that, contrary to the trial court’s holding,

plaintiff did file an affidavit on the day before the motion hearing attesting to the fact that he is

indigent.

On August 24, 2022, the trial court issued its opinion and order denying plaintiff’s motion

for reconsideration, noting that plaintiff’s affidavit was not attached to his response to defendants’

motion but instead was filed on the afternoon before the hearing and was not brought to the court’s

attention during oral argument; thus, the court was unaware of it. In any case, the court held, even

if it had been aware of the affidavit, its ruling would not have been changed. The affidavit merely

contained conclusory statements that plaintiff is unemployed and indigent, and he failed to state a

legitimate claim as required under MCR 2.109(B)(1). Therefore, plaintiff was ordered to post the

security bond or his complaint would be dismissed.

Plaintiff then filed an emergency motion for clarification of the court’s opinion and order

entered August 24, 2022. Plaintiff requested the court to clarify whether both the first-party and

third-party claims set forth in his complaint were dismissed. Plaintiff argued that his PIP claim

should not be dismissed because it was based on a valid insurance policy that was in force at the

time of this incident. And he submitted medical documentation substantiating his claim of injuries

arising from the accident; thus, he stated a cause of action for first-party no-fault benefits.

Defendant Progressive filed a response to plaintiff’s emergency motion, arguing that

plaintiff would be unable to establish that this minor traffic incident caused him any injury, and

further, any medical problems he claimed to have were merely subjective—and not objective—in

nature. Defendant further stated: “[G]iven the subjective nature of Plaintiff’s injuries as supported

by multiple independent medical examiners, Plaintiff’s dishonest deposition testimony, dash

camera footage of Plaintiff joking at the accident scene, evidence of malingering throughout

testing by [the neuropsychologist], Plaintiff will not be able to convince a jury that his exaggerated

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injuries resulted from a low-speed bump by a firetruck.” Accordingly, the trial court properly

ordered plaintiff to post a security bond in this case.

On September 13, 2022, the trial court entered an order denying plaintiff’s motion, holding

that no clarification was necessary because the court’s opinions regarding security of costs relate

to plaintiff’s entire complaint since his claims arise from the same accident and are grounded in

tenuous theories of liability. (Quotation marks and citation omitted.)

On September 15, 2022, the trial court entered an order dismissing plaintiff’s complaint

and closing the case because plaintiff failed to post a $25,000 security bond with the court within

the time ordered.

This appeal by plaintiff followed. Plaintiff argues that the trial court erred by dismissing

his first-party and third-party no-fault claims because they were not based on tenuous legal

theories. We disagree.

II. ANALYSIS

A. STANDARD OF REVIEW

A trial court’s decision whether to require a security bond is reviewed for an abuse of

discretion. In re Surety Bond for Costs, 226 Mich App 321, 331; 573 NW2d 300 (1997). A

decision constitutes an abuse of discretion when it falls outside the range of reasonable and

principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

The trial court’s factual assessments of the legitimacy of the claims and a party’s financial ability

to post bond are reviewed for clear error. In re Surety Bond, 226 Mich App at 333. Clear error is

shown when the reviewing court is left with a definite and firm conviction that a mistake was

made, even if there was evidence to support the finding. In re Bennett Estate, 255 Mich App 545,

549; 662 NW2d 772 (2003). The interpretation and application of a court rule is reviewed de novo.

Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 133; 624 NW2d 197 (2000).

B. APPLICABLE LAW

Under the Michigan Court Rules, a motion may be brought by a defendant in a civil action

requesting that the trial court require a plaintiff to post a security bond to cover future costs and

expenses. MCR 2.109 provides:

(A) Motion. On motion of a party against whom a claim has been asserted in a civil

action, if it appears reasonable and proper, the court may order the opposing party

to file with the court clerk a bond with surety as required by the court in an amount

sufficient to cover all costs and other recoverable expenses that may be awarded by

the trial court, or, if the claiming party appeals, by the trial and appellate courts.

The court shall determine the amount in its discretion. . . .

(B) Exceptions. Subrule (A) does not apply in the following circumstances:

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(1) The court may allow a party to proceed without furnishing security for costs if

the party’s pleading states a legitimate claim and the party shows by affidavit that

he or she is financially unable to furnish a security bond.

MCR 2.109(A)’s phrase “if it appears reasonable and proper,” has long been interpreted to require

the moving party to show a “substantial reason” warranting the posting of security by the opposing

party. Wells v Fruehauf Corp, 170 Mich App 326, 335; 428 NW2d 1 (1988), citing Gaffier v St

Johns Hosp, 68 Mich App 474, 478; 243 NW2d 20 (1976). This Court, in Wells, further explained:

The plaintiff’s poverty alone is not substantial reason to grant a motion for security.

Assertion of a tenuous legal theory of liability can provide substantial reason to

grant such a motion. An order to post security for costs can also be appropriate

where there is good reason to believe that a party’s allegations, although they

cannot be summarily dismissed under MCR 2.116, are nonetheless groundless and

unwarranted. [Wells, 170 Mich App at 335 (internal citations omitted).]

In other words, in “determining the legitimacy of a claim, a trial court is not strictly limited to

considering the plaintiff’s legal theory, but may also consider the likelihood of success on that

theory.” In re Surety Bond, 226 Mich App at 333. A court may look to the “demonstrated

weakness” of a case, Farleigh v Amalgamated Transit Union, Local 1251, 199 Mich App 631,

636; 502 NW2d 371 (1993), and a party’s failure to offer evidence in support of his allegations, In

re Surety Bond, 226 Mich App at 333. In other words, a party may be required to post a security

bond when substantial doubt is cast on the merits of their claim, but the proceedings have not yet

advanced to a stage where summary dismissal is appropriate. Hall v Harmony Hills Recreation,

Inc, 186 Mich App 265, 270; 463 NW2d 254 (1990) (citation omitted). MCR 2.109(B) provides

an exception to the posting of a security bond and “attempts to balance the right of a poor plaintiff

to seek justice with the need of a defendant to have an opportunity for security.” Hall, 186 Mich

App at 271, quoting Gaffier, 68 Mich App at 478. However, if the exception does not apply and

the court orders a security bond, a party’s claims may be dismissed if the security bond is not filed

as ordered. In re Surety Bond, 226 Mich App at 332.

C. APPLICATION

The trial court did not abuse its discretion in ordering plaintiff to post a security bond.

Considering the evidence submitted by the parties, there was good reason to believe that plaintiff

would be unable to establish entitlement to recovery of either first-party PIP benefits or

noneconomic damages on his third-party claim because his purported injuries and credibility were

seriously questionable and causation was doubtful.

Plaintiff alleged a first-party PIP claim under MCL 500.3105(1), which provides that “an

insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation,

maintenance or use of a motor vehicle . . . .” “Accordingly, a no-fault insurer is liable to pay

benefits only to the extent that the claimed benefits are causally connected to the accidental bodily

injury arising out of an automobile accident.” Griffith v State Farm Mut Auto Ins Co, 472 Mich

521, 531; 697 NW2d 895 (2005). “It is not any bodily injury that triggers an insurer’s liability

under the no-fault act. Rather, it is only those injuries that are caused by the insured’s use of a

motor vehicle.” Id.

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Plaintiff also alleged a third-party claim for noneconomic damages under MCL

500.3135(1) which provides for such tort liability “only if the injured person has suffered death,

serious impairment of body function, or permanent serious disfigurement.” A serious impairment

of body function is an objectively manifested impairment of an important body function that

affects the person’s general ability to lead his normal life. MCL 500.3135(5); McCormick v

Carrier, 487 Mich 180, 190; 795 NW2d 517 (2010). The purpose of the injury threshold is to bar

recovery for noneconomic loss unless the injury sustained in the accident is serious. Byer v Smith,

419 Mich 541, 545; 357 NW2d 644 (1984).

Plaintiff did assert claims under recognizable legal theories of liability, i.e., no-fault claims

arising from the accident, but the trial court’s assessment of those claims as tenuous is not clearly

erroneous. In other words, the record evidence demonstrates that plaintiff was involved in a low-

impact incident with a fire truck that resulted merely in scuff marks and paint transfers which does

not tend to give rise to any bodily injuries, let alone bodily injuries of a serious nature as required

to assert first- and third-party no-fault claims. More specifically, Michigan State Trooper Stephen

James authored a traffic report which indicated that there were no injuries, plaintiff’s airbag had

not deployed, and that there was “extremely minor damage” to the vehicles. Trooper James

testified in his deposition that no injuries were reported to him and he likely would not have even

written a traffic report because of the minor damage involved (primarily paint transfers and scuff

marks) except that a report was requested by a party to the incident. The photographs taken of

plaintiff’s vehicle at the scene of the accident by Trooper James confirm that plaintiff’s vehicle

sustained almost no damage. Nevertheless, in his deposition plaintiff testified that the fire truck

was actually on top of his vehicle and pinned his vehicle under the fire truck, trapping it, as the

fire truck made the turn at the intersection. Plaintiff testified that his vehicle was not really

drivable, and had both a broken axle and a flat tire, and was leaking fluid, but he drove it home.

Although plaintiff initially testified that he told Trooper James he was injured, particularly that his

head and neck hurt, plaintiff later testified that he could not remember if he did—after defense

counsel advised plaintiff that there was dash cam video of his interaction with the police officer.

And plaintiff initially testified that there was a large dent on his fender by the headlight from his

car being pinned under the fire truck—although that dent was not in the photographs taken

immediately after the accident. Plaintiff later claimed that the dent “could have happened trying

to get [the car] home” after the accident, although plaintiff could not explain how that would have

happened. The large dent was evident on plaintiff’s car in photographs that were taken at some

later time and when he took the vehicle to the collision shop allegedly for repair. Eventually

plaintiff testified that he did not know how the dent occurred.

And with regard to bodily injuries, Trooper James testified that none of the parties involved

in the accident were injured. At his deposition, plaintiff eventually admitted that he did not recall

advising the officer that he was injured. And plaintiff did not seek medical treatment for any

purported injuries for over a month after the incident—a fact which contradicts a claim of any

bodily injuries, let alone serious bodily injuries arising from the incident. In fact, the emergency

department physician who eventually evaluated plaintiff on December 31, 2020, performed

imaging studies (CT scans) which were negative, concluded that there was a “low suspicion for

injuries,” and discharged plaintiff to home. While plaintiff argued that he had MRIs done later

that same day which showed “both a herniated disc as well as a disc bulge at C4-C5 as well as a

bulging disc at T6-T7,” there is no evidence to correlate these purported findings with the low-

impact accident that occurred over a month before this testing. In other words, to the extent these

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findings can be related to some kind of accident, plaintiff has failed to demonstrate that they arose

from this specific accident that occurred over a month before the testing. Any number of accidents,

falls, and traumatic events could have occurred between the time of the low-impact accident with

the fire truck and the date in which plaintiff first sought medical attention. While plaintiff argued

that his medical providers all referenced the accident on November 26, 2020, that is because it is

the only historical information provided to them by plaintiff. Plaintiff provided no physician

affidavit or other evidence stating that his purported bodily injuries are serious and arose

specifically from the low-impact accident with the fire truck.

In summary, the trial court’s conclusion that plaintiff’s complaint was based on tenuous

theories of liability is not clearly erroneous. A no-fault insurer is only liable to pay PIP benefits

to the extent that the claimed benefits are causally connected to an accidental bodily injury arising

out of an automobile accident. And noneconomic damages are only permitted if that bodily injury

is serious in nature. In this case, plaintiff has failed to present evidence tending to establish his

right to recovery under either theory of liability. As the trial court noted, plaintiff’s vehicle

sustained almost no damage. It was a low-impact accident that did not cause his airbag to deploy.

Plaintiff denied injury at the scene and did not seek any medical attention for over a month.

Plaintiff’s fantastical deposition testimony aside, there is no evidence that the fire truck was on top

of plaintiff’s small passenger vehicle so that it pinned him inside the vehicle, causing him to sustain

the type of serious injuries that he asserted—over a month later—occurred to him.

Further, plaintiff’s affidavit in support of his claim of indigency was insufficient to permit

the trial court to make reasoned findings about his financial inability to pay the requested security

bond. Plaintiff’s affidavit provided conclusory statements attesting to his purported

unemployment and inability to pay the bond, but failed to recite any financial information such as

his assets, income, expenses, financial statements, and the like.1 See Wells, 170 Mich App at 338.

Thus, plaintiff did not meet his burden of establishing that he could not afford the bond. See

Quinto v Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996) (indicating that a

conclusory affidavit is insufficient to establish an issue of fact).

Accordingly, in light of the record, the trial court properly exercised its discretion by

balancing plaintiff’s right to bring his tenuous claims with defendants’ rights to security, and

determined that requiring plaintiff to post bond was reasonable and proper. See MCR 2.109(A).

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Attached to plaintiff’s emergency motion was a second, newly-filed affidavit in support of his

claim of indigency. The trial court had no obligation to consider this untimely offer of proof, nor

does it appear that the trial court did so. We therefore also decline to consider it on appeal.

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The trial court did not abuse its discretion. Therefore, when plaintiff failed to file the security

bond as ordered, the trial court properly dismissed plaintiff’s action.

Affirmed.

/s/ Michael J. Riordan

/s/ Mark J. Cavanagh

/s/ Kristina Robinson Garrett

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