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STATE OF MICHIGAN COURT OF APPEALS

JENNIFER ALBRECHT, Plaintiff-Appellant, v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

UNPUBLISHED June 26, 2012

No. 302226 Kent Circuit Court LC No. 08-000076-NI

Before: M. J. KELLY, P.J., and WILDER and SHAPIRO, JJ. PER CURIAM. In this case involving recovery of no-fault insurance benefits, plaintiff appeals as of right the order granting defendant's motion for summary disposition. This is the second appeal in this case. Previously, the trial court granted defendant's motion for summary disposition and plaintiff appealed. This Court reversed and remanded. Albrecht v State Farm Mut Auto Ins Co, unpublished opinion per curiam of the Court of Appeals, entered June 22, 2010 (Docket No. 289042). We again reverse and remand. The previous opinion of this Court summarized the facts of the case: This case stems from an incident where plaintiff was attempting to load pigs into a trailer that was connected to a 2005 Dodge pickup truck. At some point during this process, the trailer's loading ramp fell on plaintiff and broke her back and arm. Plaintiff and her husband, Justin, have homeowners, automobile no-fault and hospitalization insurance through defendant State Farm Mutual Automobile Insurance Company (State Farm). Assurant Health, whose policies were sold and serviced through captive State Farm agents, provided the hospitalization insurance. Kimberly Hughes was State Farm's agent (Gregg Dep, 3-4). Gregg Hughes, Kimberly's husband, was Kimberly's office manager and employee, but was also a licensed State Farm agent. Plaintiff's husband telephoned Gregg Hughes and told him about the accident. Gregg Hughes then sent plaintiff a claim form, but only for the hospitalization insurance. After submitting the claim to State Farm/Assurant, plaintiff collected the maximum benefit allowed under the policy, which was $1,000. On January 3, 2008, more than 13 months after her injury, plaintiff filed her complaint against -1-

defendant alleging that she should also have been covered under her automobile no-fault insurance policy. Defendant filed a motion for summary disposition, arguing that the case should be dismissed pursuant to MCR 2.116(C)(7) because the action was time barred under MCL 500.3145(1). The trial court granted defendant's motion for summary disposition. *** According to plaintiff, her husband called agent Gregg Hughes to report the accident. Justin testified that he told Gregg that "my wife had been backing up my pickup truck and my trailer into the barn to load up the hogs. She had parked the pickup truck, walked around it, and was trying to open the door and slipped and fell . . . the trailer door had fallen on her." Gregg stated that he was only told that a trailer door fell on Jennifer, but that he was never told that the trailer was attached to a motor vehicle insured by State Farm. He stated that he assumed that the trailer was either detached from the vehicle, or attached to a different vehicle that was not insured by State Farm. As a result, he only submitted the claim as a health insurance claim, and never submitted the claim as a no-fault auto insurance claim. He told plaintiff that he phoned Assurant, and that they would be sending her the claims forms. [Albrecht, unpub op at 1-2.] On the previous appeal, this Court determined: We find that there is an issue of fact regarding Gregg's negligence in this matter. While he certainly never intentionally misled plaintiff and her husband, the matter of whether his actions served to negligently misinform plaintiff requires more factual development. *** Therefore, the trial court erred in granting defendant's motion for summary disposition. Plaintiff's noncompliance with the one-year statute of limitations may have been affected by defendant's negligence, and if it were, then defendant should indeed be estopped from asserting the statute of limitations. Further factual development of this issue is necessary. [Albrecht, unpub op at 3.] On remand, both parties moved for summary disposition, although there was limited further factual development. The trial court again granted summary disposition in favor of defendant, citing this Court's previous opinion requiring further factual development as well as plaintiff's acknowledgement that there was little more factual development and that it simply never occurred to Gregg that there may be a no-fault claim. A trial court's decision to grant or deny a motion for summary disposition is reviewed de novo. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008) (citation omitted). When this Court reviews a motion for summary disposition brought pursuant to MCR 2.116(C)(7), we review pleadings as well as any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d 529 (2008) (citation omitted). The complaint is -2-

accepted as true unless contradicted by evidence. Id. This Court considers the evidence in a light most favorable to the nonmoving party. Id. If there is no factual dispute, then whether plaintiff's claim is barred by a statute of limitations is a question of law for this Court to decide. Id. However, if there is a factual dispute, then summary disposition is not proper. Id. A motion for summary disposition brought pursuant to MCR 2.116(C)(10) is reviewed "by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham, 480 Mich at 111 (citation omitted). Summary disposition pursuant to MCR 2.116(C)(10) is proper "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The applicability of equitable doctrines is reviewed de novo. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004) (citation omitted). Whether the law of the case doctrine applies is also reviewed de novo. Manske v Dep't of Treasury, 282 Mich App 464, 467; 766 NW2d 300 (2009). Because this Court previously issued an opinion in this case, the law of the case doctrine applies, as described in Kasben v Hoffman, 278 Mich App 466, 470; 751 NW2d 520 (2008): [A] lower court may not take action on remand that is inconsistent with the judgment of the appellate court. Rather, the trial court is bound to strictly comply with the law of the case, as established by the appellate court, according to its true intent and meaning. However, the law-of-the-case doctrine only applies to issues actually decided

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