 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Allstate Insurance Co. v. Maroki9/24/2002
preme Court addressed the identical issue that is presented in the present case. The Supreme Court has never overruled Campbell. Accordingly, the trial court properly followed Campbell and instructed the jury that defendant had to prove its defense of fraud and false swearing by a preponderance of the evidence. [Id.] See also Hawkeye Casualty Co v Holcomb, 302 Mich 591, 604; 5 NW2d 477 (1942) ("The burden was upon plaintiff, who claimed fraud on the part of defendants in obtaining the issuance of such policy, to prove such fraud by a preponderance of the evidence.")
Defendants rely on Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330; 247 NW2d 813 (1976), and Foodland Distributors v Al-Naimi, 220 Mich App 453, 459; 559 NW2d 379 (1996), to support their argument that plaintiff must prove its claim by clear and convincing evidence. As defendants point out, in Hi-Way, supra at 336, the Court stated that "fraud will not be presumed but must be proven by clear, satisfactory and convincing evidence." Similarly, in Foodland, supra, this Court stated that " t is generally held that fraud must be proved by 'clear and convincing' evidence, rather than by the preponderance of the evidence." However, these cases are distinguishable from Campbell and Mina. In both Campbell and Mina, the insurer asserted the defense of fraud and false swearing to bar the insured from recovery under the insurance policy, but Hi-Way Motor Co and Foodland were tort actions. The present case is a declaratory action where plaintiff-insurer asserted fraud to preclude the insured from recovery under the policy, and although this is an original action, rather than a defense, it remains more similar to Campbell and Mina. In other words, although procedurally different, Campbell, Mina, and the present case concern the preclusion of an insured's recovery from an insurance policy on the basis of fraud. The Mina Court explained:
Unfortunately, in the Hi-Way Motor opinion, the Supreme Court did not overrule its previous cases holding that fraud had to be proved by a preponderance of the evidence. In fact, the opinion made no mention of them.
* * * e are unable to say with any degree of certainty exactly what standard of proof courts should apply in fraud cases. The Supreme Court has alternately required fraud to be established by a preponderance of the evidence and by clear and convincing proof, with little consistency and no detailed analysis. While the most recent Supreme Court pronouncements regarding the question have stated that fraud must be proved by clear and convincing evidence, we think it unlikely that the Supreme Court would overrule a significant body of case law without at least mentioning that it was doing so. [Mina, supra at 684-685.]
Pursuant to MCR 7.215(I)(1), we are bound by Mina. Therefore, the trial court's instruction was not improper.
Affirmed.
Peter D. O'Connell
Richard Allen Griffin
Joel P. Hoekstra
|