Auto Club Grp. Ins. Ass'n v. Andrzejewski

• Decision Date: 17 May 2011
• Docket Number: Docket No. 297551.
• Citation: 808 N.W.2d 537,292 Mich.App. 565
• Parties: AUTO CLUB GROUP INSURANCE ASSOCIATION v. ANDRZEJEWSKI.
• Court: Court of Appeal of Michigan — District of US

292 Mich.App. 565

808 N.W.2d 537

AUTO CLUB GROUP INSURANCE ASSOCIATION

v.ANDRZEJEWSKI.

Docket No. 297551.

Court of Appeals of Michigan.

Submitted March 3, 2011, at Grand Rapids.Decided May 17, 2011, at 9:00 a.m.

Cunningham Dalman, P.C., Holland (by Kenneth B. Breese and Kenneth M. Horjus), and Gross & Nemeth, P.L.C., Detroit (by Mary T. Nemeth), for Auto Club Group Insurance Association.

Fisher & Dickinson P.C., Grand Rapids (by Todd R. Dickinson) for Darrell L., Kristen, and Nicolas J. Andrzejewski.

Before: GLEICHER, P.J., and WHITBECK and OWENS, JJ.

PER CURIAM.

In this case involving personal injury insurance coverage, defendants Nicolas Andrzejewski and his parents, Darrell L. Andrzejewski and Kristen Andrzejewski, appeal as of right the trial court's grant of summary disposition under MCR 2.116(C)(10) in favor of plaintiff, Auto Club Group Insurance Association. We affirm.

Nicolas Andrzejewski was 13 years old at the time of the incident in which defendant Matthew Volk, also 13 years old, was injured. The injury occurred on March 28, 2008, during the course of a basketball game on “Teen Night” at the Grandville YMCA.

Nick and Matt were on opposing teams in a half-court game where the number of players on each team varied from four to seven per team and there was no restriction on substitutions. Matt and Nick guarded each other throughout the game. Matt claimed that Nick was “playing dirty” and that Nick had grabbed his shirt eight or ten times during the game. Matt also said that Nick grabbed his arm four or five times to take the ball away, elbowed him four or five times, threw the basketball hard at his chest twice, and unsuccessfully tried to trip him three to five times. Matt did not recall how he was injured. Nick claims that Matt pushed him in the back as he bent over to pick up a ball. Nick testified that he “got mad” and put Matt in a headlock. As Matt struggled to get out, he fell forward and hit his head on the ground. Matt's friends stated that Nick threw a punch at Matt. Matt's friends also stated that Nick then put Matt in a headlock, picked Matt up, and threw Matt onto the gym floor. After Matt's head hit the floor, he began to have a seizure.

Matt was taken by ambulance to the emergency room. He suffered an acute head injury with associated seizures, two hematomas on his head, soft-tissue injuries, a bruised or fractured iliac crest of his hip bone, photophobia, and postconcussion syndrome.

As a result of this incident, the prosecutor filed a delinquency petition requesting the Kent Circuit Court, Family Division, to take temporary custody of Nick, as a juvenile who violated Michigan's aggravated- assault statute, MCL 750.81a(1). Jurisdiction was subsequently transferred to Ottawa County, where Nick and his family lived at the time. A plea of nolo contendere was entered for Nick and the referee entered a juvenile adjudication and disposition, ordering that Nick be made a temporary ward of the court, be placed in the Ottawa County Juvenile Detention Center for 10–14 days, and serve 56 hours of community service.

In 2009, Matt, by his next friend, Lori Volk, his mother, filed suit against Nick and his parents (hereafter defendants).¹ The complaint alleged that Nick was overly aggressive and acted intentionally, recklessly, carelessly, negligently, unlawfully, and maliciously toward Matt. Defendants were insured under a homeowner's insurance policy issued by plaintiff, which included liability insurance coverage.

Plaintiff is currently defending the underlying tort action brought by Matt and his mother against defendants under a reservation of rights set forth in a letter dated August 24, 2009. Plaintiff's reservation-of-rights letter set forth three separate grounds for denying coverage for the claims asserted against defendants: (1) there was no “occurrence” as defined in the policy; (2) the “intentional acts” exclusion set forth in ¶ 5 of the exclusions under part II, liability coverage was applicable; and (3) the “criminal acts” exclusion set forth in ¶ 10 of the exclusions under part II, liability coverage was applicable.

Plaintiff brought the present action seeking a declaratory judgment regarding its obligations under the policy and filed a motion for summary disposition. The circuit court granted the motion, finding that Nick's actions were criminal in nature and intentional, as those terms were used within the insurance policy. The circuit court subsequently entered a declaratory judgment. Defendants now appeal, arguing that the trial court erred and that Nick's actions were not criminal in nature or intentional. We disagree.

A trial court's decision on a motion for summary disposition is reviewed de novo on appeal. Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). This Court reviews the motion by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Id. Summary disposition is properly granted only if there is “no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. A genuine issue regarding a material fact exists “when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v. AEW Capital Mgt., LLP, 481 Mich. 419, 425, 751 N.W.2d 8 (2008).

The guidelines for enforcing exclusionary clauses are summarized in Century Surety Co. v. Charron, 230 Mich.App. 79, 83, 583 N.W.2d 486 (1998):

Exclusionary clauses in insurance policies are strictly construed in favor of the insured. Coverage under a policy is lost if any exclusion in the policy applies to an insured's particular claims. Clear and specific exclusions must be given effect because an insurance company cannot be liable for a risk it did not assume.

When reviewing an exclusionary clause, this Court must read the contract as a whole to effectuate the overall intent of the parties.

Pacific Employers Ins. Co. v. Mich. Mut. Ins. Co., 452 Mich. 218, 224, 549 N.W.2d 872 (1996). Where the language is clear and unambiguous, the insurance policy must be enforced as written. Century Surety Co., 230 Mich.App. at 82–83, 583 N.W.2d 486.

The policy states (bold in original):

We will pay damages for which an insured person is legally liable because of bodily injury ... caused by an occurrence covered by this Policy.

We will defend any suit with lawyers of our choice or settle any claim for these damages as we think appropriate. We will not defend or settle: any suit unless it arises from an occurrence covered by this Policy....

“Occurrence” is defined in the Auto Club policy as follows:

1. Occurrence means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.

2. Accident means a fortuitous event or chance happening that is neither reasonably anticipated nor reasonably foreseen from the standpoint of both any insured person and any person suffering injury or damages as a result.

The pertinent exclusions provided as follows:

BODILY INJURY AND PROPERTY DAMAGE NOT COVERED

Under Part II, we will not cover:

* * *

5. bodily injury or property damage resulting from an act or omission by an insured person which is intended or could reasonably be expected to cause bodily injury or property damage. This exclusion applies even if the bodily injury or property damage is different from, or greater than, that which is expected or intended.

* * *

10. bodily injury or property damage resulting from:

a. a criminal act or omission committed by anyone; or

b. an act or omission, criminal in nature, committed by an insured person even if the insured person lacked the mental capacity to:

(1)...