Anderson v. Kemper Ins. Co.

• Decision Date: 19 October 1983
• Docket Number: Docket No. 64744
• Citation: 128 Mich.App. 249,340 N.W.2d 87
• Parties: Raymond ANDERSON and Louise Anderson, Plaintiffs-Appellees, v. KEMPER INSURANCE COMPANY and Lumbermens Mutual Casualty Company, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 87

340 N.W.2d 87

128 Mich.App. 249

Raymond ANDERSON and Louise Anderson, Plaintiffs-Appellees, v. KEMPER INSURANCE COMPANY and Lumbermens Mutual Casualty

Company, Defendants-Appellants.

Docket No. 64744.

Court of Appeals of Michigan.

Submitted Feb. 15, 1983.

Decided Aug. 17, 1983.

Released for Publication Oct. 19, 1983.

James R. Shively, P.C. by Gary Edward Gardner, Detroit, for plaintiffs-appellees.

Barbier, Goulet & Petersmarck, P.C. by John L. Salter, Mount Clemens, for defendants-appellants.

Before J.H. GILLIS, P.J., and HOLBROOK and GRIBBS, JJ.

PER CURIAM.

Defendants appeal by leave granted from an order denying their motions for accelerated or summary judgment against plaintiffs.

The instant case arose out of an automobile accident which occurred on December 30, 1971, in the State of New York, involving a vehicle containing plaintiffs and a second vehicle, a 1963 Chrysler, driven by Alma Nunez. At the time, Nunez was insured by defendants as the owner of a different vehicle. It is disputed as to whether Nunez owned the automobile driven by her when the accident occurred. If she did, it would be excluded from the policy provisions. If owned by some other person, coverage would still extend to Nunez.

On April 8, 1974, defendant Lumbermens Mutual Casualty Company (hereinafter Lumbermens) denied coverage to Nunez. On December 24, 1974, plaintiffs filed an action against Nunez in New York. However, as of June 17, 1975, there had been no activity in that case. On June 10, 1974, plaintiffs commenced suit in United States District Court, Eastern District of Michigan. Nunez was served but was subsequently defaulted. Default judgment was entered in plaintiffs' favor on June 29, 1976. On December 3, 1976, plaintiffs filed a writ of garnishment against defendant Kemper Insurance Company, which denied it had any assets of the principal defendant Nunez. On January 29, 1981, plaintiffs filed this action for declaratory judgment seeking a determination that defendants are liable on the insurance contract with Nunez and therefore do have her assets in the form of insurance proceeds payable. Thereafter, defendants filed their motions for accelerated judgment or summary judgment. On April 2, 1982, the trial court entered an order denying defendants' motions.

First, defendants contend plaintiffs' claim is barred by the appropriate period of limitations. Our review of the record reveals that there are outstanding material factual questions concerning when, if at all, personal jurisdiction was obtained over Nunez. This factor is necessary in determining this issue. Accordingly, accelerated judgment on this issue would have been improper and the trial court should be affirmed on this point.

Second, defendants claim the trial court erred in denying their motion for summary judgment under GCR 1963, 117.2(1), and 117.2(3). We disagree. A motion under GCR 1963, 117.2(1) tests whether plaintiffs have pled a claim against defendants. The motion is to be decided with reference to the pleadings alone, accepting every well-pleaded fact as true. The facts are left to develop as they will within the pleadings. Summary judgment can be granted only if no factual development is possible which, along with justifiable inferences, could establish plaintiffs' claim. O'Toole v. Fortino, 97 Mich.App. 797, 295 N.W.2d 867 (1980). We find that the record does not reveal that plaintiffs' complaint was insufficient as a matter of law. Whether the 1963 Chrysler was owned by Nunez is a question of fact which is not resolved by the pleadings. It is unclear from the pleadings how this critical fact will be determined by a trier of fact. Accordingly, we hold the trial court to have been correct in finding that summary judgment under GCR 1963, 117.2(1) was inappropriate.

Defendants' motions also claimed there was no genuine dispute as to any material fact. GCR 1963, 117.2(3). Such a motion requires reference to any evidence in the case--depositions, affidavits, admissions, etc.--as well as the pleadings, to ascertain if there is any dispute as to any material fact. Hollowell v. Career Decisions, Inc., 100 Mich.App. 561, 566, 298 N.W.2d 915 (1980). The court should give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine material issue. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). The court must be satisfied that no factual development is possible which would support the nonmoving party's claim. Royal Globe Ins. Co. v. Great American Ins. Co., 118 Mich.App. 735, 325 N.W.2d 556 (1982).

There appears to us to be a factual dispute herein: whether Nunez owned the car. We find that evidence appears to be available to both sides. Defendants seem to believe this Court should settle the factual dispute now because plaintiffs' evidence is (in defendants' view) so weak. That would be inappropriate. We find no reversible error on this point.

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