Uninsured (UM) or underinsured (UIM) benefits; Whether there was a genuine issue of material fact as to whether the other driver’s vehicle was uninsured; Hearsay; Speculation; Effect of incomplete discovery; MCR 2.116(C)(H) affidavits; Coblentz v City of Novi

Holding that there was no genuine issue of material fact as to “whether the other vehicle was uninsured or underinsured,” the court affirmed summary disposition for defendant-insurer. The case arose from a motor vehicle crash between plaintiff’s vehicle and a vehicle operated by a nonparty (A). Plaintiff previously sued defendant, her no-fault insurer, for payment of personal protection insurance benefits. Shortly before that case was dismissed by stipulation, she filed a claim against A. “That case ultimately resulted in the entry of a default judgment against” A. While that case was pending, plaintiff filed this suit against defendant, seeking UM or UIM benefits pursuant to her policy. In arguing on appeal that a genuine issue of material fact existed, she relied on an affidavit she submitted in response to defendant’s summary disposition motion. In the affidavit, she stated that A “‘told [her] at the accident scene that he did not have insurance on the car.’ [A’s] purported statement, however, is inadmissible hearsay because it is an out of court statement that” plaintiff was offering “to prove ‘the truth of the matter asserted in the statement,’ i.e., that [A] did not have insurance on the vehicle.” Thus, it could not be used to avoid summary disposition. The court also found that her argument based on the default judgment she obtained against A was “nothing more than speculation[.]” Finally, as to her claim that summary disposition was premature because discovery was incomplete, she failed to “submit the affidavits of probable testimony that are required by MCR 2.116(H). As a result, the trial court did not err” in granting defendant’s summary disposition motion before the close of discovery.