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Johnson v. Villa Elizabeth--Butterworth9/24/2002
orandum of the agreement, contract, or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise:
(g) An agreement, promise, contract, or warranty of cure relating to medical care or treatment. This subdivision does not affect the right to sue for malpractice or negligence. [MCL 566.132.]
Assuming, without deciding, that plaintiff correctly asserts the admission agreement was a contract for the medical care of White, MCL 566.132 would apply to plaintiff's claim. Under the language of subsection (1)(g) of the statute, "the party to be charged with the agreement" is defendant. However, it is undisputed that defendant's representatives did not sign the admission agreement at issue. Accordingly, the agreement is void, and plaintiff's breach of contract claim is barred. MCL 566.132.
Plaintiff next asserts that the trial court erred by granting defendant's motion regarding her fraudulent misrepresentation claim. We disagree. In order to prove fraudulent misrepresentation, plaintiff must show that
(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage. [M&D; Inc v McConkey, 231 Mich App 22, 27-28; 585 NW2d 33 (1998).]
The representation upon which a claim for fraudulent misrepresentation is based must concern a past or existing fact, Forge v Smith, 458 Mich 198, 212 n 41; 580 NW2d 876 (1998); citing Kamalnath v Mercy Hospital, 194 Mich App 543, 554; 487 NW2d 499 (1992). We agree with the trial court that the misrepresentations alleged by plaintiff concern future conduct; specifically, the future care White was to receive once she was admitted. Therefore, plaintiff's claim fails.
Plaintiff also argues that the trial court improperly granted summary disposition on her innocent misrepresentation claim. Without analyzing the elements of the claim, the trial court dismissed this count of plaintiff's amended complaint because, like her breach of contract action, it had concluded that plaintiff's claim was actually for medical malpractice. Innocent misrepresentation is a "species" of fraudulent misrepresentation, but requires proof that the misrepresentations were made in connection with making a contract and that the plaintiff and the defendant were in privity of contract. M&D; supra at 27-28.
Here, plaintiff's innocent misrepresentation claim is based on the admission agreement, which, as we previously stated, is void because it does not satisfy the statute of frauds. MCL 566.132. Because the agreement is void, it cannot support plaintiff's innocent misrepresentation claim. See Cassidy v Kraft-Phenix Cheese Corp, 285 Mich 426, 435-437; 280 NW 814 (1938).
Plaintiff finally asserts that the trial court erred in granting defendant summary disposition on plaintiff's exemplary damages claim. We disagree. Exemplary damages fall within the larger category of actual damages, Ray v City of Detroit, Dep't of Street Railways, 67 Mich App 702, 704; 242 NW2d 494 (1976), and are not a separate cause of action. Because plaintiff's substantive claims fail, she cannot recover any damages.
Affirmed.
Kurtis T. Wilder
Richard A. Bandstra
Joel P. Hoekstra
Page 1 2 Michigan Personal Injury Attorneys
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