Griffith v. Property and Casualty Ins. Co. of Hartford

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DESIREE DURGA and JUSTIN DURGA, UNPUBLISHED August 13, 2025 Plaintiffs-Appellees, 9:04 AM v No. 371891 Benzie Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 23-012025-CZ Defendant-Appellant. Before: O’BRIEN, P.J., and BOONSTRA and WALLACE, JJ. PER CURIAM. This action arises out of a motor vehicle accident that occurred in June 2023, when plaintiff Desiree Durga was driving a Chevrolet Silverado that was involved in a collision with another motor vehicle. This accident resulted in extensive damage to the Silverado, which was insured by defendant MemberSelect Insurance Company (MemberSelect). Plaintiffs alleged that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that Desiree Durga made a fraudulent misrepresentation in the application process. The trial court entered a July 2, 2024 amended order granting plaintiffs’ motion for summary disposition on their breach of contract claim pursuant to MCR 2.116(C)(10) and denying defendant’s cross-motion for summary disposition in which it had argued that it was entitled to rescind the policy. On July 9, 2024, the court entered an order of judgment in favor of plaintiffs in the amount of $82,476.04, and this appeal of right by defendant followed. We affirm. I. FACTS As a result of plaintiff Justin Durga having two or more substance abuse convictions in seven years, his Michigan operator’s license was mandatorily revoked from June 9, 2007 “until requirements have been met.” MCL 257.303(2)(c). -1-  In June 2012, plaintiff Justin Durga’s wife, Desiree, applied to obtain automobile insurance from defendant MemberSelect for a Jeep Grand Cherokee that she owned.1 According to plaintiff Desiree Durga, “[a]t that time I fully disclosed to AAA that my husband, Justin Durga, did not have a valid driver’s license.”2 Defendant’s insurance records reflect that plaintiffs have been “AAA Insured” since June 29, 2012. While defendant MemberSelect claims that Desiree Durga’s application for insurance contained a material misrepresentation, it has not produced a copy of her June 2012 application in this case. In response to a request for production of documents seeking to have defendant “[p]roduce the application for insurance that Plaintiff(s) filed with Defendants for the Policy,” defendant responded “This application for insurance no longer exists.” In the lower court, MemberSelect relied upon two documents, a “New Declaration Certificate” (certificate), and an “Automobile Application Addendum and Authorization” (addendum), the latter of which was only signed by AAA sales representative, Jeanine Michalski, at 9:53AM on February 25, 2013. Under a line item labeled “Driver Type,” the certificate states that Desiree Durga is “ASSIGNED”3 and Justin Durga is “NOT LICENSED”; and under another line item labeled “Years Licensed” it states “7” for Desiree Durga and “0” for Justin Durga. Contrarily, in the addendum, next to a line asking “Do all drivers have a valid driver’s license including drivers 16 years of age with a graduated license?” the box marked “Yes” is checked. Again, the addendum reflects a signature by Jeanine Michalski on the “Sales Representative” line, but the “Signature of Applicant” line above it is blank. In her affidavit, Desiree Durga’s avers that “I never stated that Justin Durga had a valid driver’s license, nor did I ever prepare or sign this Addendum.” The addendum indicates that the Durgas carried automobile insurance with Farmers Insurance Exchange through March 15, 2013, and consistent with the certificate, it appears MemberSelect first insured Desiree Durga’s Jeep for the February 25, 2013-August 25, 2013 policy term. This policy was renewed and continued for ten years through the February 25, 2023- August 25, 2023 term at issue in this litigation. Desiree Durga’s affidavit also avers that “every renewal from AAA or MemberSelect continued to state that Justin Durga was not licensed—as 1 The policy of insurance that was in effect on the date of the accident was issued by defendant MemberSelect. In various documents prepared by defendant in this matter, including documents sent to plaintiffs, it refers to itself as “MemberSelect Insurance Company,” “AAA In

No. 517 June 4, 2025 175 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Kevin J. LEE, Petitioner, v. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent. Department of Consumer and Business Services INS190008; A182238 Argued and submitted April 1, 2025. Kevin J. Lee argued the cause and filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. 176 Lee v. DCBS HELLMAN, J. Petitioner, appearing pro se, seeks judicial review of a final order of the Department of Consumer and Business Services (DCBS) that revoked his insurance licenses and assessed civil penalties. On judicial review, petitioner argues that the final order is not supported by substantial evidence. We affirm. “We review an agency’s order in a contested case for errors of law, ORS 183.482(8)(a), substantial evidence, ORS 183.482(8)(c), and substantial reason.” Dorn v. Teacher Standards and Practices Comm., 316 Or App 241, 243, 504 P3d 44 (2021). “Substantial evidence exists to support a find- ing of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482. “Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclu- sion that the agency draws from them.” Dorn, 316 Or App at 243 (internal quotation marks omitted). “Our review is restricted to the record.” Id. (citing ORS 183.482(7)); see also ORS 183.417(9) (defining “[t]he record in a contested case”). A detailed recitation of the facts would not benefit the bench, the bar, or the public. Petitioner held securities sales, insurance provider, and insurance consultant licenses in Oregon for several years. In 2017, the Federal Industry Regulatory Authority (FINRA) contacted petitioner to determine if he had violated any federal securities laws when he provided investment advice to his former neigh- bors. In 2018, petitioner filed a resident insurance license renewal application with the state and represented that he had not “been named or involved as a party in an adminis- trative proceeding, including FINRA sanction.” DCBS sub- sequently alleged that petitioner “act[ed] as a state invest- ment adviser in Oregon without a state investment license,” provided “misleading information” on his insurance license applications by not disclosing the FINRA investigation, and that he engaged in “fraudulent, coercive, or dishonest prac- tices.” At the contested hearing, the daughter of petitioner’s former neighbors, petitioner, and a DCBS financial enforce- ment officer testified, and the administrative law judge (ALJ) received into evidence numerous exhibits offered by Nonprecedential Memo Op: 341 Or App 175 (2025) 177 each party. The ALJ ruled in favor of DCBS and issued a proposed order. DCBS adopted the ALJ’s proposed order as the final order. We have reviewed each of petitioner’s 18 separate arguments concerning the final order and conclude that petitioner presents no basis to reverse. Many of petitioner’s arguments dispute DCBS’s interpretation of the facts, but we do not reweigh evidence on appeal. See Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017) (“When in a review role, a court does not review for the better evidence.”). Many of petitioner’s arguments also depend on his testimony— which DCBS found not credible—and we do not revisit cred- ibility on appeal. See id. (“A substantial evidence review does not entail or permit the reviewing tribunal to reweigh or to assess the credibility of the evidence that was presented to the fact-finding body.” (Internal quotation marks omitted.)) And petitioner’s arguments do not establish that DCBS committed any legal error in its analysis. In sum, substan- tial evidence supports DBCS’s findings of fact, and the order provides substantial reason for its conclusions. Petitioner has not demonstrated any legal error on DCBS’s part. Affirmed.

No. 706 August 6, 2025 399 IN THE COURT OF APPEALS OF THE STATE OF OREGON Antonio CORNELIO, as Personal Representative of the Estate of Vickie Marie Pobanz, Plaintiff-Respondent, v. PREMERE REHAB, LLC, an Oregon limited liability company, dba Infinity Rehab, Defendant-Appellant. Deschutes County Circuit Court 21CV48494; A180698 Michelle A. McIver, Judge. Argued and submitted January 29, 2025. Michael J. Estok argued the cause and filed the briefs for appellant. Also on the briefs was Lindsay Hart, LLP. Christopher J. Kuhlman argued the cause and filed the brief for respondent. Also on the brief was Kuhlman Law, LLC. Before Shorr, Presiding Judge, Powers, Judge, and Pagán, Judge. SHORR, P. J. Affirmed. 400 Cornelio v. Premere Rehab, LLC Cite as 342 Or App 399 (2025) 401 SHORR, P. J. Defendant Premere Rehab, LLC, dba Infinity Rehab appeals from an interlocutory order denying its motion to compel arbitration. ORS 36.730(1)(a). Plaintiff is the personal representative of the estate of Vickie Pobanz (decedent), who died following complications that arose during her residence at Bend Transitional Care (BTC). Defendant is a separate legal entity that provided therapy services to decedent at BTC. Defendant moved to compel arbitration of plaintiff’s wrongful death action against it based on an arbitration agreement that decedent had executed with BTC. The trial court denied that motion. Defendant appeals, raising two assignments of error, arguing that the trial court erred in deciding the issue of arbitrability and in denying arbitration on the merits. For the reasons that follow, we affirm. The relevant facts are undisputed. In March 2018, decedent was admitted as a resident at BTC to recover from an ankle fracture. Upon her admission, decedent signed an Admission Agreement and an Arbitration Agreement. There is no dispute that decedent had the mental capacity to sign those agreements. A representative of BTC countersigned the agreements for “the Facility.” Both agreements were between the Facility and the Resident and both had Bend Transitional Care’s name and address printed on the first page. Defendant is not named in either document. The Admission Agreement references a Resident Handbook, which states that the Facility provides various therapy services to its residents. The arbitration agreement provides, in relevant part: “The Resident and/or Legal Representative and/or Resident Representative, collectively known as the ‘Resident Group’ and the Facility, on behalf of themselves and all others claiming by, through or under them, agree that they shall submit to binding arbitration all disputes against each other and their respective Legal Representatives, affili- ates, governing bodies and employees, arising out of, or in any way connected with, the care provided at this Facility under the terms of the Admission Agreement. * * * “All such disputes shall be determined by binding arbitra- tion in the county in which the Facility is located, before one arbitrator. The arbitration shall be administered 402 Cornelio v. Premere Rehab, LLC by JAMS (a private arbitration service) pursuant to its Comprehensive Arbitration Rules and Procedures * * *.” As relevant to this appeal, JAMS Rule 11(b) (the delega- tion provision) delegates initial issues of arbitrability to the arbitrator: “Jurisdictional and arbitrability disputes, including dis- putes over the formation, existence, validity, interpreta- tion or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” The JAMS Rules do not appear to have been attached to the Arbitration Agreement or provided to decedent. While at BTC, decedent developed wounds on her hips, which became infected and led to her death in August 2019. In 2020, plaintiff filed a wrongful death and survival action against BTC and other affiliated entities and individ- uals allegedly involved in the operation, management, and/ or ownership of BTC. The defendants in the first lawsuit filed a motion to compel arbitration. The court granted the motion, and the parties accordingly submitted to arbitration. Plaintiff then filed the complaint commencing this case against defendant, who was not a party in the first lawsuit, alleging that defendant improperly sized decedent for a wheelchair, which led to her hip wounds. Defendant provides therapy and rehab services a

Court of Appeals Tenth Appellate District of Texas 10-25-00156-CV TDJ Corporation d/b/a Infinity Nails, Tiffany Thuy Do and Don Kim Do, Appellants v. CBL RM-Waco, LLC, Appellee On appeal from the 74th District Court of McLennan County, Texas Judge Gary R. Coley, presiding Trial Court Cause No. 2021-3652-3 JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION On June 11, 2025, the appellants, TDJ Corporation d/b/a Infinity Nails, Tiffany Thuy Do and Don Kim Do, filed a motion to dismiss this appeal because the parties have reached a settlement. The motion indicates that the appellants no longer desire to pursue the appeal due to the settlement which resolves all issues and disputes in the case.  The motion to dismiss the appeal is granted. Accordingly, pursuant to the written settlement agreement of the parties, this appeal is dismissed. See TEX. R. APP. P. 42.1(a). STEVE SMITH Justice OPINION DELIVERED and FILED: June 18, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Appeal dismissed CV06 TDJ Corporation v. CBL RM-Waco, LLC Page 2

NUMBER 13-25-00325-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN RE DAISY FUENTES AND MCCOY CORPORATION ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION Before Justices Silva, Peña, and Cron Memorandum Opinion by Justice Peña1 By petition for writ of mandamus, relators Daisy Fuentes and McCoy Corporation contend that the trial court abused its discretion by ordering them to produce “all primary and excess policies of insurance that may provide coverage in this case.” Relators have also filed a motion for emergency stay of the trial court’s order pending the resolution of this original proceeding. See TEX. R. APP. P. 52.10. 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).  A writ of mandamus is an extraordinary remedy available only when the trial court clearly abused its discretion and the party seeking relief lacks an adequate remedy on appeal. In re Ill. Nat’l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding). “The relator bears the burden of proving these two requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relators have not met their burden to obtain relief. See TEX. R. CIV. P. 192.3(f); 194.2(b)(7); In re Dana Corp., 138 S.W.3d 298, 304 (Tex. 2004) (orig. proceeding) (per curiam). Accordingly, we deny the petition for writ of mandamus and the motion for emergency stay. L. ARON PEÑA JR. Justice Delivered and filed on the 17th day of June, 2025. 2