Bruner v. League General Ins. Co.

• Decision Date: 22 December 1987
• Docket Number: Docket No. 94304
• Citation: 164 Mich.App. 28,416 N.W.2d 318
• Parties: Thomas L. BRUNER and Lora Bruner, Plaintiffs-Appellants, v. LEAGUE GENERAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 318

416 N.W.2d 318

164 Mich.App. 28

Thomas L. BRUNER and Lora Bruner, Plaintiffs-Appellants, v.LEAGUE GENERAL INSURANCE COMPANY, Defendant-Appellee.

Docket No. 94304.

Court of Appeals of Michigan.

Submitted April 27, 1987.

Decided June 22, 1987.

Released for Publication Dec. 22, 1987.

Clark, Hardy, Lewis, Pollard & Page, P.C. by Richard E. Kroopnick, Birmingham, for plaintiffs-appellants.

Zweig & Lane, P.C. by Timothy R. Van Dusen and Donna A. Belletini, Southfield, for defendant-appellee.

Before WALSH, P.J., and WAHLS and GIDDINGS, ^* JJ.

PER CURIAM.

Plaintiffs, Thomas and Lora Bruner, appeal as of right from a July 16, 1986, order of the Oakland Circuit Court granting summary disposition in favor of defendant, League General Insurance Company.We affirm, concluding that the trial judge did not err in determining that there was no special relationship between the parties such that defendant had a duty to advise plaintiffs about the adequacy of their insurance coverage.

The facts, although not fully developed, are not disputed.On April 21, 1984, plaintiffLora Bruner was seriously injured when she was struck by a hit-and-run driver as she walked along Union Lake Road in Commerce Township, Oakland County.At the time of the accident, Lora Bruner was insured under a no-fault automobile policy issued by defendant to her husband, plaintiffThomas Bruner.

The policy had been renewed in March of each year since 1975.Each year, plaintiffs received a declaration page from defendant specifying the coverage afforded under the policy.The 1980 declaration page deleted coverage for uninsured motorist protection and included the following notation in bold print at the bottom of the page:

"Uninsured motorists coverage has been removed from your policy.It is available on request.See enclosed letter for more information."

The letter enclosed with the 1980 declaration page stated, in pertinent part:

"Because Uninsured Motorist Insurance is no longer required in Michigan, we have not included it in your renewal policy.Your premium has been reduced by the cost of the Uninsured Motorists coverage.

"This coverage is no longer required because of the extensive medical and rehabilitation benefits which your Personal Injury Protection coverage pays to you, a member of your family or a passenger in your car who is injured in an auto accident--regardless of who causes the accident.

"Although not automatically included, Uninsured Motorists coverage is available.Please phone us, at the number on the enclosed card, for the price and other details."

The policy in effect at the time Lora Bruner was injured in 1984 did not include uninsured motorist coverage, plaintiffs' never having requested that protection.In her deposition, Lora Bruner acknowledged having received and retained the letter that was enclosed with her 1980 declaration page.She expressed her own astonishment at having retained the letter, the contents of which she did not understand, echoing Casca's comment in Shakespeare's Julius Caesar regarding Cicero's speech that "it was all Greek to me."

Defendant filed its motion for summary disposition under MCR 2.116(C)(8), failure to state a claim on which relief can be granted, and MCR 2.116(C)(10), no genuine issue as to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law.Neither in the hearing nor in the consequent written order was it specifically stated under which subrule summary disposition was granted--a practice we especially discourage.Our review of the hearing transcript suggests that MCR 2.116(C)(10) was relied upon.In deciding a motion under that provision, the trial judge must consider the pleadings, affidavits, and other available evidence, and be satisfied that the claim or position asserted cannot be supported by evidence at trial due to some deficiency which cannot be overcome.Hagerl v. Auto Club Group Ins. Co., 157 Mich.App. 684, 403 N.W.2d 197(1987).The test is whether the 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).The lower court will be affirmed where no factual development could justify recovery by the nonmoving party.League Life Ins. Co. v. White, 136 Mich.App. 150, 152, 356 N.W.2d 12(1984).

Generally, an insurance agent does not have an affirmative duty to advise a client regarding the adequacy of a policy's coverage.Instead, the insured is obligated to read the policy and raise questions concerning coverage within a reasonable time after issuance.Parmet Homes v. Republic Ins. Co., 111 Mich.App. 140, 144-145, 314 N.W.2d 453(1981), lv. den.415 Mich. 851(1982).However, a duty to advise may arise when a "special relationship" exists between the insurance company or its agent and the policyholder.Where such a duty has been breached, liability may be based thereon.Palmer v. Pacific Indemnity Co., 74 Mich.App. 259, 254 N.W.2d 52(1977), lv. den.401 Mich. 808(1977);Stein v. Continental Casualty Co., 110 Mich.App. 410, 313 N.W.2d 299(1981), lv. den.414 Mich. 853(1982).

In Stein, plaintiffs began an architectural and engineering business and, between 1964 and 1969, contracted with the Mourer-Foster Insurance Agency for a "claims made" professional liability insurance policy with defendantContinental Casualty Company.Under a "claims made" policy, an insured party must maintain continuous coverage in order to have protection against liability for malpractice if the claim is not made in the same policy year in which the alleged negligence occurred.Plaintiffs allowed their policy to lapse between 1969 and 1971, but renewed their contract in 1971.However, upon renewing, they were not informed of the consequences of having cancelled their insurance in 1969 and were not informed that a "prior acts" endorsement was available when they renewed their insurance in 1971.This Court affirmed the trial court's conclusion that a special relationship existed between the parties, emphasizing the following:

"In the instant case, the evidence established that the Mourer-Foster Insurance Agency had handled all of plaintiffs' insurance needs, including their malpractice insurance, for 10 years.The evidence also established that Mourer-Foster was an agent of defendant, Continental.From 1962 until 1969, plaintiffs...