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Wayne County judge erred by not watching surveillance video

December 28, 2017 by Steven M. Gursten

Judge fails to consider Auto-Owners’ surveillance video before dismissing a Detroit car accident victim’s No Fault benefits claim

Judge failed to watch surveillance video before dismissing No Fault lawsuit.

After the notorious Bahri v. IDS Property Casualty Insurance Company case and many other examples of clear judicial abuse involving so-called surveillance video of car accident victims, I have to admit I’m not a fan of judges using surveillance evidence to decide motions for summary judgment.

Michigan car accident attorneys like myself have watched as judges use video that, far too often, doesn’t come close to showing what the insurance company claims it shows as a docket clearing mechanism to remove legitimate car accident injury lawsuits from their judicial dockets. (Bahri is, again, a great example of this.)

But a new case makes it clear that trial court judges will now have to view surveillance video. The case found judicial error when a Wayne County judge dismissed a Detroit No Fault first-party lawsuit without having first watched a surveillance video that both Auto-Owners and the car accident victim’s attorney were relying on to support their arguments.

In Yelda v. Auto-Owners Insurance Company, where the insurance company presented evidence of a surveillance video purporting to debunk a car crash injury victim’s claimed need for No Fault benefits, the Michigan Court of Appeals ruled as follows about the judge’s failure to watch the video before dismissing the lawsuit:

  • Under MCR 2.116(G)(5), “if a party refers to and relies on an affidavit, pleading, deposition, admission, or other documentary evidence, and that evidence is then filed in the action or submitted by the parties, the trial court must consider it.”
  • Because the trial court “did not consider the surveillance videos presented by Auto-Owners,” the “court did not consider all the evidence as required by MCR 2.116(G)(5) before rendering its decision on Auto-Owners’ [dismissal] motion.”
  • As a result, we “vacate the summary disposition order and remand for further consideration with review of all the evidence, specifically the surveillance video footage presented by Auto-Owners.”

Significantly, the Court of Appeals also pointed out that, by neglecting to watch the surveillance video prior to granting Auto-Owners’ motion to dismiss, the judge failed to:

“[D]id not resolve a factual issue raised by” the car accident victim, i.e., that “she was not the individual depicted in several of the still photos taken from the surveillance footage and that any acts attributable to her did not render her PIP claims fraudulent.”

This is a very important ruling for auto accident victims and, especially, for the car accident lawyers like myself who are hired to protect them.

In this insane post-Bahri era we find ourselves in today, insurers can now allege fraud over the most ridiculous and meaningless mistakes and, then, ask a judge to dismiss a case in its entirety. Surveillance video is now routine and expected.

And why not?

Insurance company adjusters can ignore claims for any reason or for no reason at all, and, then, for a couple thousand dollars hire an investigator to do surveillance video of a claimant to come up with an excuse to allege fraud and ask a court to dismiss the entire case.

This case is important from the aspect of both clarifying the meaning of the court rule and clarifying what trial judges must do in order to comply with the court rule’s mandate.

But, from a practical litigation standpoint, the case drives home how important surveillance video evidence can be.

Ironically, the power of video cuts both ways.

I’ve been insisting for years that Michigan car accident lawyers be more aggressive in bringing motions to protect clients from so called “independent” medical examinations. I’ve also argued on the pages of this auto law blog that our auto law should be changed to allow car accident lawyers to videotape the so-called “independent” medical exams (IMEs) as a matter of right. These exams are rife with abuse. Claims adjusters force people to go to them so that notorious, hired-gun insurance-company doctors can cut-off desperately needed No Fault insurance benefits and protections.  Without a video, these doctors can say the victim told them all sorts of things, and, often, this turns out to be very different from what these people actually said.

Why was the surveillance video so important to Auto-Owners?

Auto-Owners hired a private investigator to conduct surveillance of car accident victim Nada Yelda and try to gather video and photographic evidence that might undermine and/or disprove her claims that:

She required and was entitled to “recompense” for “eight hours of daily attendant care and one hour of replacement services provided by her 21-year-old son …”

Why was the surveillance video so important to the car accident victim?

The car crash victim in Yelda insisted that, if the trial judge has watched the surveillance video, the judge would have seen that:

“[S]he was not the woman depicted in parts of the video and that any actions she did take were not incompatible with her testimony.”

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