Opinion
No. 351553
01-21-2021
JOHNSON LAW, PLC, Plaintiff-Appellee, v. JEFF A. SIMPSON, Defendant-Appellant, and METROPOLITAN LIFE INSURANCE COMPANY, also known as METLIFE, Defendant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-004567-CK Before: JANSEN, P.J., and SERVITTO and RIORDAN, JJ. PER CURIAM.
In this action alleging breach of a contingent-fee representation agreement, defendant Jeff Simpson appeals as of right the trial court's order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff also named Metropolitan Life Insurance Company as a defendant, but MetLife is not a party to this appeal. The term "defendant" refers only to defendant Jeff Simpson.
I. BACKGROUND & PROCEDURAL HISTORY
Defendant was employed by General Motors (GM) as a test driver. As a GM employee, he participated in the General Motors Life and Disability Benefit Program and was insured under a Metropolitan Life Insurance Company (MetLife) certificate of insurance. He also purchased personal accident insurance (PAI) coverage under the plan in the amount of $1,000,000.
On August 31, 2007, defendant was injured on the job while testing braking performance on a GM vehicle. He suffered extreme whiplash which caused a blood clot that induced a stroke which in turn caused complete loss of use of his left arm and left leg, loss of vision in his left eye, and loss of speech quality due to paralysis of facial muscles.
In January 2011, defendant submitted a MetLife claim form for "Voluntary Accidental Dismemberment Benefits," which included "Loss of Limb (Amputation), Vision, Speech, Hearing or Paralysis." In a letter accompanying this claim, defendant requested "full personal accident insurance compensation" for the disabilities he incurred. In March 2011, MetLife denied defendant's claim because his left arm and leg were not severed, he did not suffer complete loss of sight, and he did not suffer complete loss of speech. Defendant appealed this decision, but MetLife upheld the denial of his claim in April 2011.
Defendant took no further action regarding this claim until December 5, 2017, when he met with attorney Paul Doherty of plaintiff law firm, Johnson Law, PLC. Doherty reviewed documents supplied by defendant regarding the denial of his dismemberment claim and agreed to represent defendant. Defendant agreed to these terms and signed a "Contract for Legal Representation" form provided by plaintiff. The first line of the contract form includes a blank line filled in with a handwritten notation describing the purpose of the firm's representation of defendant as follows: "The Firm is retained by the Client(s) for legal representation in connection with a claim for MET LIFE CLAIM." Handwritten changes provide for a contingent fee of 40% of defendant's recovery. The contract further provides that it "refers only to the matter to which reference is made in paragraph 1 and does not cover any other matter," and that if representation is required for any other matter, "a new and separate contract will be required."
In a December 22, 2017 letter to MetLife referencing the GM employee benefits plan and the claim number assigned to defendant's 2011 claim for dismemberment benefits, Doherty informed MetLife that his office represented defendant "relative to the referenced plan," requested all documents and records related to defendant's claim, stated that defendant "is totally and permanently disabled," and concluded: "Therefore, we claim benefits on his behalf pursuant to the Plan; see, e.g. Section 2, Coverage."
MetLife responded to Doherty on January 23, 2018, stating that defendant's claim for accidental dismemberment benefits had been denied in 2011, and that "[f]or information about filing a claim for other kinds of benefits, your client should speak to the General Motors benefit center for salaried employees."
On February 6, 2018, Doherty spoke with defendant regarding MetLife's response. In an e-mail message memorializing their telephone conversation, Doherty noted: "As to my request that the[y] provide benefits for your total and permanent disability, they directed that claim be submitted to the GM Salaried Benefits Office." He then explained:
We discussed your making such a claim but copying me in on that request. As I told you, the time to contest the prior denial has long passed. It's a long shot to make a new claim, but you have nothing to lose at this point. My plan is when MetLife denies the new claim, that will "reset" the clock and give us a shot in court. Again, be sure to copy me in on whatever you give to GM. Let me know if you
have any questions.Defendant replied on February 7, 2018: "Hi Paul, I faxed and emailed new request to start paying on my PAI policy."
That same day, defendant also e-mailed a MetLife representative, requesting a contact at MetLife and explaining: "Last claim was wrongly filed as I only lost ½ my brain in GM accident!" The MetLife representative forwarded this message to a unit leader, who explained that MetLife would correspond directly with defendant's attorney and instructed her to inform defendant to contact his attorney.
One month later, defendant again e-mailed the MetLife representative, complaining that his claim had not yet been evaluated and asking to be put in contact with a claims manager. The representative once again forwarded the e-mail to the unit leader, requesting that "someone in leadership call [defendant] personally to explain that all correspondence needs to be done through his attorney." That same day, defendant e-mailed Doherty, stating: "Hi Paul, seems MetLife is content to ignore me! What could we do to get ball rolling?" Doherty replied the next day, explaining that he had received a call from MetLife "questioning why [the] claim has come back to life." Doherty then informed defendant: "I advised [MetLife that the] claim was not properly processed because it should have been a total disability and not a dismemberment. The rep advised [that] your claim would be forwarded to the total disability group and that he would further research and get back to me. I'll keep you posted." Defendant also telephoned the MetLife representative on March 7, 2018, and told her that "his attorney said he has to file a new claim and that is what he is trying to do."
On March 22, 2018, MetLife mailed defendant a 12-page Group Life Insurance Statement of Review to complete and return to determine his eligibility for permanent disability benefits. The next day, defendant e-mailed Doherty, stating: "MetLife called and said they will determine on Monday if I qualify for my claim! Claim number 218O3009785." Doherty replied that day: "Ok, keep me posted."
Defendant's wife completed the claim forms, which were faxed to MetLife on April 11, 2018, with a cover letter stating that defendant would be the "sole contact" for information, documents, and any additional data needed to approve his claim. After defendant sent the completed forms to MetLife, he repeatedly contacted MetLife independently regarding the status of his claim. On April 18, 2018, he e-mailed the MetLife representative regarding the status of his claim. The representative replied that defendant must have his attorney contact the claims office in order to receive any status updates. The next day, he sent another e-mail, stating: "I need a response from your claims department before my attorney gets involved! Please have them contact me on status? Approved or denied and reason?" The next day, the MetLife representative forwarded defendant's e-mail to her unit leader, who replied that she was uncertain whether defendant's attorney needed to contact them, because she was not certain that his "older claim is the one that had his attorney involved." Defendant e-mailed the MetLife representative twice on April 20, 2018, regarding his claim.
Shortly thereafter, MetLife approved defendant's claim and issued a payment of $40,000 on May 4, 2018, representing the first two monthly installments. On May 21, 2018, defendant e- mailed MetLife again, asking for a contact to discuss full payment for his claim. In a letter to defendant, dated May 22, 2018, MetLife explained that as of June 1, 2018, he would receive "a check for $20,000 until the full amount of Voluntary Accidental has been paid." Neither defendant nor MetLife contacted Doherty regarding approval of defendant's claim.
Unaware that MetLife had approved the disability claim, on May 31, 2018, plaintiff filed a complaint on behalf of defendant against MetLife in the United States District Court for the Eastern District of Michigan. The complaint alleged that MetLife was aware that defendant was disabled, aware that defendant "met the definition of 'total and permanent disability' as defined by the Plan," and aware that defendant had not suffered an amputation, yet "inexplicably" sent defendant forms to claim accidental dismemberment benefits. The complaint sought payment of past due and future disability benefits under the plan. In a letter dated June 21, 2018, Doherty informed defendant that the complaint had been filed and stated that he had attempted to contact a MetLife representative to determine the status of defendant's claim, but his attempt had been unsuccessful.
On July 2, 2018, defendant contacted plaintiff's office and stated that he no longer desired their representation. The next day, Doherty received a phone call from MetLife's counsel, who informed him that MetLife had been sending monthly payments to defendant since May and had paid more than $80,000 at that point. In a letter dated July 3, 2018, Doherty notified MetLife's counsel that all payments to defendant should be made through plaintiff's office and include plaintiff as a payee. Two days later, MetLife's counsel e-mailed Doherty, denying his request and stating that MetLife would continue to pay defendant directly, explaining that defendant had contacted MetLife on his own, completed the application for benefits without assistance, and that "the only document in the file from your law firm is dated December 22, 2017."
On July 11, 2018, plaintiff filed a motion in the federal court action, seeking to secure payment pursuant to the contingent-fee agreement and requesting an order providing that plaintiff is entitled to 40% of all funds paid or to be paid by MetLife to defendant and that plaintiff shall be included as payee on all funds paid to defendant in the future. MetLife opposed this motion, asserting that plaintiff was not involved in pursuing defendant's disability claim, "but was only considering an appeal from the denial of the Dismemberment claim" and that defendant had pursued the disability claim with no assistance from plaintiff. MetLife also filed a motion for summary judgment, asserting that the complaint seeking payment on the dismemberment claim was barred by the statute of limitations and that MetLife had granted defendant's claim for disability benefits on the PAI policy before the complaint was filed.
In March 2019, the federal district court denied plaintiff's motion for an award of attorney fees, holding that the fees sought by plaintiff did not arise from a proceeding before that court and that plaintiff sought to employ the federal ERISA action to raise state-law breach of contract and tortious interference claims. The court also granted MetLife's request for summary judgment, holding that the claim was barred by the statute of limitations.
The Employee Retirement Income Security Act, 29 USC 1001 et seq.
On March 29, 2019, plaintiff filed the instant action against defendant and MetLife. In Count I, plaintiff alleged that defendant breached the contract for legal services by refusing to pay the contingent fee stipulated in the agreement. In Count II, plaintiff alleged that defendant had been unjustly enriched by receiving the 40% of the MetLife benefits to which plaintiff was entitled. In Count III, plaintiff alleged that defendant's acts constituted conversion of plaintiff's funds, entitling plaintiff to treble damages under MCL 600.2919, as well as exemplary damages, costs, and attorney fees. In Count IV, plaintiff alleged that MetLife had interfered with the contractual relationship between plaintiff and defendant. Plaintiff sought a declaratory judgment that it is entitled to 40% of all past and future payments by MetLife to defendant, and that all payments must be remitted to plaintiff, with plaintiff as a payee.
Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(10), contending that there was no question of material fact that defendant breached the fee agreement and that plaintiff is entitled to the agreed fee and cost reimbursement. Plaintiff also sought summary disposition on its conversion, unjust enrichment, and tortious interference claims. Plaintiff asserted that the contingent-fee agreement was unambiguous and "broadly states the scope of the engagement: the 'METLIFE CLAIM' " and did not limit the scope of representation to defendant's 2011 claim. Plaintiff argued that defendant had received no payment on his earlier claim and that "[p]ursuant to [p]laintiff's strategy and efforts, and only through those efforts, [defendant]'s claim for total and permanent disability was approved in full." Plaintiff attached numerous documents as exhibits, including copies of mail and e-mail correspondence with defendant and MetLife, and the affidavit of Doherty.
Defendant maintained that he had retained plaintiff to represent him for an appeal of his dismemberment claim and that plaintiff had not assisted or advised him regarding his disability claim. Defendant argued that the use of the terms "a" and "Met Life Claim" in the first paragraph of the contract "clearly limit the representation to a single claim." Defendant contended that plaintiff took no action on the PAI claim, did not represent him on that claim, and there was no fee agreement on that claim. Defendant submitted documentary evidence in support of his arguments, including e-mail and other correspondence, as well as an affidavit from his wife.
The trial court granted plaintiff's motion for summary disposition only with respect to its breach of contract claim because, it reasoned, the agreement "does not specify a dismemberment claim, but clearly states that [plaintiff] is retained for legal representation in connection with a MetLife claim, i.e., a disability claim." The court noted that the agreement was entered into more than five years after the dismemberment claim had been denied and the limitations period had run, and it found that plaintiff actively pursued a disability claim on defendant's behalf, stating that plaintiff "expressly advised MetLife that it represented [defendant] in accordance with the Plan, and that the law firm was claiming benefits on [defendant's] behalf due to his total and permanent disability," before observing that defendant had been unable to obtain any benefits until after he retained plaintiff and plaintiff had interceded on his behalf.
The court declined to address plaintiff's declaratory relief or conversion claims, and denied summary disposition on plaintiff's unjust enrichment and tortious interference claims. --------
Defendant filed a motion for reconsideration, asserting that the trial court had ignored evidence that plaintiff was retained to represent defendant in the dismemberment claim only, and failed to recognize that the payments made to defendant were made under a "different Plan." The trial court denied defendant's motion for reconsideration and subsequently entered a judgment for plaintiff. This appeal followed.
II. ANALYSIS
Defendant argues that the trial court committed error requiring reversal when it concluded that plaintiff's legal representation of defendant extended to his disability claim against MetLife, thereby making any recovery for that claim subject to the contingent-fee agreement. We disagree.
A trial court's decision regarding a motion for summary disposition is reviewed de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim; the trial court may grant the motion when there is no genuine issue of material fact, after considering "all evidence submitted by the parties in the light most favorable to the party opposing the motion." Id. at 160. "There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). Questions involving the interpretation or effect of contractual language are also reviewed de novo, McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008), as is the interpretation and application of court rules, Colista v Thomas, 241 Mich App 529, 535; 616 NW2d 249 (2000).
"The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties." Shay v Aldrich, 487 Mich 648, 660; 790 NW2d 629 (2010), quoting McIntosh v Groomes, 227 Mich 215, 218; 198 NW 954 (1924). As a general rule, where the language of a contract is unambiguous, a contract is to be construed according to its plain meaning; however, where the language is ambiguous, courts may consider extrinsic evidence to determine the intent of the parties. Shay, 487 Mich at 660. A contract is ambiguous if its provisions may reasonably be understood in different ways. Island Lake Arbors Condo Ass'n v Meisner & Assoc, PC, 301 Mich App 384, 393; 837 NW2d 439, 444 (2013).
The first paragraph of the agreement states: "The Firm is retained by the Client(s) for legal representation in connection with a claim for MET LIFE CLAIM." "A" is an indefinite article which may indicate singularity and plurality. See Robinson v City of Lansing, 486 Mich 1, 26-27; 782 NW2d 171 (2010) (YOUNG, J., concurring) (noting that a definite article may refer to an earlier noun modified by an indefinite article). Because there was more than one claim for MetLife benefits, it is unclear whether the contract was for representation on a single, discrete claim or for representation on any other claim for MetLife benefits. The contract is reasonably susceptible to more than one meaning, and therefore, it is ambiguous. Accordingly, the trial court properly considered extrinsic evidence to discern the parties' intent.
Moreover, the trial court properly concluded that the evidence did not support defendant's contention that he retained plaintiff only to appeal his failed dismemberment claim. As the trial court noted, plaintiff informed MetLife that it was seeking benefits for defendant's total and permanent disability in accordance with the GM benefits plan, and the agreement was entered more than five years after defendant's earlier claim had been denied and that the limitations period had run for any appeal of that claim. Additionally, Doherty's February 6, 2018 e-mail to defendant indicates that his strategy included the filing of a second claim and pursuing other options in the event that the second-filed claim was denied. Defendant's reply to that email indicates his acquiescence with that strategy. On March 7, 2018, defendant e-mailed Doherty to complain that MetLife was ignoring him and asking for advice "to get ball rolling." The next day, Doherty replied that he had received a call from MetLife and had advised MetLife that the 2011 claim was "not properly processed because it should have been a total disability and not a dismemberment." The MetLife representative advised Doherty that the claim would be forwarded to the disability group; Doherty stated that he would keep defendant posted. Two weeks later, MetLife sent defendant a form to complete to determine his eligibility for disability benefits under his PAI policy. The next day, defendant e-mailed Doherty to inform him that MetLife had called and provided a new claim number, which he gave to Doherty, to which Doherty replied, "Ok, keep me posted."
Thus, the evidence indicates that plaintiff's involvement was integral to the process by which defendant was ultimately awarded disability benefits. Defendant disavowed Doherty's involvement and informed MetLife in a letter dated April 11, 2018, that he would be "the sole contact" for the matter only after he had received the form from MetLife to receive disability benefits. Even so, only one week later defendant prodded MetLife for a response before his "attorney gets involved."
Defendant contends that plaintiff's actions "were solely focused on Claim No. 2260," which "demonstrates the only possible scope of the contract is the singular claim of dismemberment—Claim No. 2260." This contention is not supported by the record. Although plaintiff's initial letter to MetLife referred to Claim 2260 in the subject line, the letter does not mention dismemberment and clearly sought benefits on the ground that defendant "is totally and permanently disabled." Moreover, the complaint filed in federal court did not allege that MetLife should have paid benefits for dismemberment; rather, the premise of that lawsuit was that MetLife was aware that defendant was totally and permanently disabled and had not suffered a dismemberment, but nevertheless sent him forms for dismemberment benefits and arbitrarily and capriciously denied him disability benefits.
Defendant also contends that plaintiff cannot explain why it continued the federal lawsuit for nine months after MetLife granted his claim for disability benefits, suggesting that if plaintiff represented defendant on claim 9785, it would have dismissed that case after benefits were granted on the PAI disability claim. However, plaintiff's continuation of that federal court action makes sense, with the possibility that defendant might be awarded benefits under both claims.
In sum, the record shows that plaintiff was retained to represent defendant on a claim for benefits from MetLife and that defendant agreed to pay a contingent fee of 40% of benefits received. The record further shows that after plaintiff interceded on defendant's behalf, that MetLife approved defendant's claim for benefits under his PAI policy, and that plaintiff has refused to pay 40% of the benefits received.
If the party opposing a motion under MCR 2.116(C)(10) "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, 362-63; 547 NW2d 314 (1996). Defendant contends that he "provided an affidavit indicating the singular claim contemplated (as demonstrated by the acts of Johnson Law) was the dismemberment claim." However, the only affidavit provided was an affidavit of defendant's wife, who was not a party to the contract and does not explain defendant's understanding of the agreement, merely stating that the words used "clearly limit the representation to a single claim." Defendant presented no further evidence to support his contention that the agreement only contemplated an appeal of the dismemberment claim. Thus, the trial court properly granted summary disposition in favor of plaintiff.
We also reject defendant's argument that summary disposition was inappropriate because discovery had not been completed. "A motion under MCR 2.116(C)(10) is generally premature if discovery has not been completed unless there is no fair likelihood that further discovery will yield support for the nonmoving party's position." Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-34; 772 NW2d 801 (2009). A party opposing a motion for summary disposition on the ground that discovery is incomplete "must at least assert that a dispute does indeed exist and support that allegation by some independent evidence." Bellows v Delaware McDonald's Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994).
Although defendant asserts that there is a genuine issue of material fact, defendant fails to support that assertion with independent evidence. Defendant notes that he served plaintiff with requests for production of documents, which had not been answered. However, the requests for production seek all communications and recordings between plaintiff and defendant, an accounting of all hours and costs expended in this matter, and plaintiff's entire file in this matter. The communications requested have already been provided and the request for production is unlikely to uncover any relevant evidence not already presented to the trial court or in defendant's possession. Moreover, the accounting of hours and costs expended is not relevant to the issue whether the parties intended to limit the scope of plaintiff's representation to the dismemberment claim. Thus, defendant has not demonstrated a fair likelihood that further discovery will yield support for his position that the agreement only contemplated a dismemberment claim.
III. CONCLUSION
The trial court did not err by granting plaintiff's motion for summary disposition with respect to plaintiff's breach of contract claim. Accordingly, we affirm.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael J. Riordan