Hearn v. Rickenbacker

• Decision Date: 01 April 1985
• Docket Number: Docket No. 72433
• Court: Court of Appeal of Michigan — District of US
• Parties: William A. HEARN, Jr., d/b/a W.A. Hearn's Men's Wear, Plaintiff-Appellant, v. Floyd W. RICKENBACKER, d/b/a Rickenbacker & Associates and Michigan Basic Property Insurance Association, a Michigan corporation, Jointly and Severally, Defendant-Appellee.

Page 371

364 N.W.2d 371

140 Mich.App. 525

William A. HEARN, Jr., d/b/a W.A. Hearn's Men's Wear Plaintiff-Appellant, v. Floyd W. RICKENBACKER, d/b/a Rickenbacker & Associates and Michigan Basic Property Insurance Association, a Michigan corporation, Jointly and Severally, Defendant-Appellee.

Docket No. 72433.

Court of Appeals of Michigan.

Submitted Nov. 8, 1984.

Decided Feb. 5, 1985.

Released for Publication April 1, 1985.

Thomas Lazar, Southfield, for plaintiff-appellant.

Klemanski & Gordon, P.C. by John D. Honeyman, Troy, for Mich. Basic Property Ins. Ass'n.

Before GRIBBS, P.J., and HOLBROOK, Jr. and N.J. LAMBROS ^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting accelerated judgment in favor of defendant Michigan Basic Property Insurance Association pursuant to GCR 1963, 116.1(5). Plaintiff had purchased fire and theft insurance from defendant on April 30, 1980. Plaintiff suffered a loss by fire on October 20, 1980. Defendant asserted that the policy had been cancelled due to lack of payment and was not reinstated until October 21, 1980, one day after the fire, and accordingly refused to pay the claim. Plaintiff alleges that he had given defendant's agent, Floyd W. Rickenbacker, doing business as Rickenbacker & Associates, the full payment and that he was unaware of the cancellation. Plaintiff's complaint consisted of three counts asserting breach of contract, negligence and fraud.

Accelerated judgment was granted based on M.C.L. § 500.2832; M.S.A. § 24.12832 which states inter alia that:

"Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss."

The lower court held that plaintiff was time-barred from litigating any of the three counts, as this suit was not instituted within 12 months of the insurance company's denial of the claim. Ford Motor Co. v. Lumbermens Mutual Casualty Co., 413 Mich. 22, 37-38, 319 N.W.2d 320 (1982). We agree that the breach of contract claim upon the insurance policy is barred despite attempts to fit within the exception of Better Valu Homes v. Preferred Mutual Ins. Co., 60 Mich.App. 315, 318, 230 N.W.2d 412 (1975), where we said:

"If an insurer, through negotiations or dilatory tactics, induces an insured to forego bringing suit under an insurance policy until after its limitations period has expired, the insurer will be held to have waived the limitations defense. Friedberg v INA, 257 Mich 291; 241 NW 183 (1932), Perkins v Central Mutual Auto Ins Co, 269 Mich 584; 257 NW 891 (1934)."

Our review of the record reveals that plaintiff has not properly pled all the elements that are required for this exception to apply.

Plaintiff also contends that his claims that are based in tort should not be time-barred. We find this to be a matter of first impression in Michigan.

We believe that the tort claims are independent of the contract of insurance and not limited to the twelve-month limitation period. Plant v. Illinois Employers Ins. of Wausau, --- Ohio App. ---, --- N.E.2d --- (1984). This is not a situation where the plaintiff, having lost a first suit based on contract, has instituted a second action as in Zehner v. MFA Ins. Co., 451 N.E.2d 65 (Ind.App.1983). Rather, plaintiff's complaint alleges both fraud and contract. We agree that there is a special relationship between an insurer and its insured and that, due to the quasi-public nature of the insurance industry, there is a duty for insurance companies to deal fairly with their customers apart from any contractual obligations owed. McCarty v. First of Georgia Ins. Co., 713 F.2d 609, 611 (CA 10, 1983), and Plant, supra. See also Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App....