Allstate Ins. Co. v. Goldwater, Docket No. 92258

• Decision Date: 24 November 1987
• Docket Number: Docket No. 92258
• Citation: 415 N.W.2d 2,163 Mich.App. 646
• Parties: ALLSTATE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Ronald GOLDWATER, Gary L. Goldwater, Florence M. Goldwater, Mary Buchte, and Robbie Buchte, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 2

415 N.W.2d 2

163 Mich.App. 646

ALLSTATE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Ronald GOLDWATER, Gary L. Goldwater, Florence M. Goldwater Mary Buchte, and Robbie Buchte, Defendants-Appellees.

Docket No. 92258.

Court of Appeals of Michigan.

Submitted May 11, 1987.

Decided Aug. 5, 1987.

Released for Publication Nov. 24, 1987.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James C. Rabaut and Rosalind Rochkind, Detroit, for plaintiff-appellant.

Felix S. Kubik, Plymouth, for defendants-appellees Goldwater.

Before WALSH, P.J., and SHEPHERD and DOCTOROFF, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting defendants' motion for summary disposition. We reverse and order summary disposition in favor of plaintiff.

On June 16, 1984, minors Ronald Goldwater and Robbie Buchte collided on their dirt bikes while riding in a farmer's field near the subdivision where they lived. The Buchtes sued Goldwater for negligent operation of the motor bike and sued his father on a negligent entrustment theory. Plaintiff, the Goldwaters' insurer, undertook their defense while reserving its rights under the policy.

Plaintiff filed this action seeking a declaratory judgment on its duty to defend and indemnify the Goldwaters. Both plaintiff and defendants filed motions for summary disposition. Plaintiff's motion, brought pursuant to MCR 2.116(C)(10), was initially granted by the judge, who ruled that the subject accident was not covered by the policy.

On rehearing, the judge reversed his decision, ruling that the exclusionary clause in the Goldwaters' insurance policy was confusing and should be construed against plaintiff.

Summary disposition under MCR 2.116(C)(10) should not be granted if a genuine issue exists as to any material fact. A trial court, when ruling on the motion, must determine whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. Rizzo v. Kretschmer, 389 Mich. 363, 371-373, 207 N.W.2d 316 (1973). To grant summary disposition, the court must be satisfied that it would be impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Tidwell v. Dasher, 152 Mich.App. 379, 383, 393 N.W.2d 644 (1986).

The Goldwaters' homeowner's insurance policy includes family liability protection, yet the portion relevant to this action, Paragraph 5, provides in pertinent part:

"We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:

"(a) a motorized land vehicle in dead storage or used exclusively on the residence premises;

"(b) any motorized land vehicle designed principally for recreational use off public roads, unless that vehicle is owned by an insured person and is being used away from the residence premises; ...." (Emphasis in original.)

If a contract, though inartfully worded or clumsily arranged, fairly admits of but one interpretation, it may not be said to be ambiguous or fatally unclear. Raska v. Farm Bureau Mutual Ins. Co. of Michigan, 412 Mich. 355, 362, 314 N.W.2d 440 (1982). If the terms of the policy are plain and unambiguous, their plain...