Crossley v. Allstate Ins. Co.

• Decision Date: 20 February 1987
• Docket Number: Docket No. 85111
• Citation: 400 N.W.2d 625,155 Mich.App. 694
• Parties: David CROSSLEY, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 625

400 N.W.2d 625

155 Mich.App. 694

David CROSSLEY, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 85111.

Court of Appeals of Michigan.

Submitted April 15, 1986.

Decided Aug. 14, 1986.

Released for Publication Feb. 20, 1987.

Denenberg, Tuffley & Bocan (by Stephen D. Duggan and John A. Lawson), Southfield, for defendant-appellant.

Before ALLEN, P.J., and MacKENZIE and SWALLOW, ^* JJ.

PER CURIAM.

Defendant, plaintiff's insurer, rejected plaintiff's proof of loss for fire damage to his house and garage, claiming that the amount claimed greatly exceeded the value of the loss and that the fires were set, or procured to be set, by plaintiff. Plaintiff responded by filing a complaint against defendant for breach of contract, "negligence and unfair trade practices," and intentional infliction of emotional distress. Defendant's affirmative defenses included arson and fraud.

Following the trial court's grant of summary judgment to plaintiff pursuant to GCR 1963, 117.2(3) because there was no credible evidence to support defendant's affirmative defenses of arson and fraud and the trial court's judgment for plaintiff of $54,000 on an award of an umpire on the breach of contract claim, defendant filed appeals to this Court. The appeals were consolidated, the trial court's decisions reversed, and the case remanded for trial. See Crossley v. Allstate Ins. Co., 139 Mich.App. 464, 362 N.W.2d 760 (1984).

Following remand, defendant turned the tables and filed a motion for partial summary disposition under MCR 2.116(C)(8), failure to state a claim, against plaintiff on the unfair trade practices and infliction of emotional distress counts. Defendant appeals, by leave granted, the trial court's adverse ruling on that motion. We conclude that the trial court erred. Accordingly, we reverse that order and remand for trial on plaintiff's breach of contract claim.

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal basis of the complaint, and not whether it can be factually supported. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 647, 363 N.W.2d 641 (1984). A court must accept as true all well-pled facts and determine whether plaintiff's claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Trotter v. Hamill Mfg. Co., 143 Mich.App. 593, 596, 372 N.W.2d 622 (1985).

In Count I, plaintiff alleged that defendant's conduct constituted an unfair trade practice within the meaning of § 2006 of the Unfair Trade Practices Act (UTPA), M.C.L. § 500.2001 et seq.; M.S.A. § 24.12001 et seq. In Count II, plaintiff alleged generally that defendant violated its fiduciary and statutorily prescribed duties under UTPA. Plaintiff further alleged that defendant's negligent and deceptive acts and practices, an allegation of practices within the ambit of § 2026 of the act, were the direct and proximate cause of plaintiff's injuries and his claimed entitlement to insurance proceeds and exemplary damages.

An allegation, such as plaintiff's allegation that defendant's conduct violated §§ 2006 and 2026 of the UTPA, that a defendant has breached an obligation imposed upon the defendant by law is an allegation of tort. See Valentine v. General American Credit, Inc., 420 Mich. 256, 259, 362 N.W.2d 628 (1984), Prosser & Keeton, Torts (5th ed), § 92, pp 655-656. Plaintiff's allegation with regard to violation of the UTPA fails as a matter of law because the act provides a comprehensive, exclusive scheme of enforcement of the rights and duties it creates; no private cause of action exists in tort for a violation of the UTPA. Bell v League Life Ins. Co., 149 Mich.App. 481, 387 N.W.2d 154 (1986), see also Young v. Michigan Mutual Ins. Co., 139 Mich.App. 600, 605, 362 N.W.2d 844 (1984), lv. den. 422 Mich. 977 (1985).

Nor can the relationship between an insurer and insured support recovery for plaintiff. Contrary to plaintiff's allegation, that relationship is not fiduciary in nature. Hearn v. Rickenbacker, 140 Mich.App. 525, 528, 364 N.W.2d 371 (1985). While this Court has recognized a relationship of trust and confidence between insurer and insured which permits an action for fraud predicated upon a claim of misrepresentation Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App. 608, 621, 310 N.W.2d 15 (1981), lv. den. 413 Mich. 874 (1982), no misrepresentation by defendant is alleged here.

Finally, to the extent plaintiff's complaint alleges "negligence" in defendant's refusal to pay, or failure to more properly investigate and assess the merit of plaintiff's claim, the complaint merely alleges a breach of contract, and summary disposition would properly have been granted with regard to such a "negligence" claim. Hart v. Ludwig, 347 Mich. 559, 565, 79 N.W.2d 895 (1956).

We choose to address separately plaintiff's Count III, which alleges emotional distress damages caused by defendant's conduct. Initially, we note that an allegation of bad faith breach of an insurance contract does not support recovery of damages for mental distress in Michigan. There must be a finding of tortious conduct independent of the contractual breach to justify the award of mental distress damages. Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 416, 295 N.W.2d 50 (1980).

In Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905 (1985), our Supreme Court declined to decide if a separate tort of intentional infliction of emotional distress exists in Michigan. With regard to the establishment of that tort, the Roberts Court quoted the following from the Restatement:

"...