Lamotte v. Millers Nat. Ins. Co.

• Decision Date: 26 October 1989
• Docket Number: Docket No. 107368
• Citation: 180 Mich.App. 271,446 N.W.2d 632
• Parties: Roberta LAMOTTE, Plaintiff, v. MILLERS NATIONAL INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant, and Forum Insurance Company, Defendant, and State Farm Automobile Insurance Company and Auto Club Insurance Association, Third-Party Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 632

446 N.W.2d 632

180 Mich.App. 271

Roberta LAMOTTE, Plaintiff, v. MILLERS NATIONAL INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant and Forum Insurance Company, Defendant and State Farm Automobile Insurance Company and Auto Club Insurance Association, Third-Party Defendants-Appellees.

Docket No. 107368.

Court of Appeals of Michigan.

Submitted July 27, 1989.

Decided Sept. 18, 1989.

Released for Publication Oct. 26, 1989.

Donald J. Morbach & Associates, P.C. by Richard G. Brewer, Detroit, for Millers Nat. Ins. Co.

Romain, Donofrio, Kuck & Egerer, P.C. by Michael P. Daniels, Southfield, for State Farm Auto. Ins. Co.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by Michael D. Smith, Mount Clemens, for Auto Club Ins. Ass'n.

Before SAWYER, P.J., and DOCTOROFF and BURNS, ^* JJ.

DOCTOROFF, Judge.

Defendant third-party plaintiff Millers National Insurance Company appeals as of right the March 25, 1988, order granting summary disposition to third-party defendants State Farm Automobile Insurance Company and Auto Club Insurance Association pursuant to MCR 2.116(C)(10). The trial court found that Millers' failure to fill out a policy endorsement meant that the exclusion in the endorsement was, by its own terms, of no effect. We reverse and remand.

The facts are not in dispute. Plaintiff's decedent, William Lamotte, was killed on March 17, 1985, in North Carolina while driving his 1976 Kenworth semi-tractor. At the time of the accident, the tractor was permanently leased to T & T Trucking and trip-leased to Distribution Carrier, Inc. (DCI). Lamotte was insured by Millers with a policy which was in effect from August 6, 1984, through August 6, 1985. DCI was insured by Forum Insurance Company with additional "cargo only" insurance provided by St. Paul Insurance Company.

Millers states in its brief that Lamotte was driving a 1977 GMC truck. However, the lower court record reveals that included with Millers' response to third-party defendant State Farm Insurance Company's motion for summary disposition is a copy of the March 15, 1985, "lease or interchange agreement" between Lamotte and DCI, wherein the "equipment information" identified a 1976 Kenworth. Further, Millers' contract of insurance contained a "change of automobile endorsement," dated December 18, 1984, which cancelled insurance for the 1977 GMC tractor and began coverage for the 1976 Kenworth tractor.

At the time of the accident, Lamotte was also insured under a policy issued by State Farm to plaintiff, Roberta Lamotte, William Lamotte's wife. Auto Club had issued a policy to plaintiff's mother who resided in the Lamotte household.

Plaintiff commenced an action against Millers, Forum and St. Paul for survival loss benefits pursuant to M.C.L. § 500.3108; M.S.A. § 24.13108. St. Paul was dismissed from the suit. Millers settled with plaintiff for $30,000, and, on March 2, 1988, Forum was dismissed with prejudice by stipulation. Millers then brought a third-party complaint against State Farm and Auto Club, claiming that an endorsement in their (Millers') policy specifically excluded coverage if the named insured was using his tractor for commercial purposes, and that, therefore, State Farm and Auto Club were first in priority pursuant to M.C.L. § 500.3114; M.S.A. § 24.13114 or M.C.L. § 500.3163; M.S.A. § 24.13163.

The trial court, in granting summary disposition to State Farm and Auto Club, found that Millers' failure to fill out its own endorsement regarding waiver of coverage under certain circumstances meant that the endorsement was of no effect. The trial court stated that, even if the endorsement were operative, by the terms of Millers' own insurance contract, the dispute would be between Millers and Forum.

On appeal, Millers claims that the trial court erred in finding an ambiguity because, as only one vehicle was insured, that vehicle was covered and there was no ambiguity.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. St. Paul Fire & Marine Ins. Co. v. Quintana, 165 Mich.App. 719, 722, 419 N.W.2d 60 (1988), lv. den. 430 Mich. 885 (1988). In ruling on the motion, the trial court must consider not only the pleadings but also any depositions, affidavits, admissions, or other documentary evidence submitted by the parties. MCR 2.116(G)(5). The test is whether the kind of record which might be developed, giving the benefit of any reasonable doubt to the nonmoving party, would leave open an issue upon which reasonable minds might differ. Linebaugh v. Berdish, 144 Mich.App. 750, 754, 376 N.W.2d 400 (1985). The motion must not be granted unless the trial court is satisfied that the nonmoving party's claim is impossible to support because of some deficiency which cannot be overcome. Dzierwa v. Michigan Oil Co., 152 Mich.App. 281, 284, 393 N.W.2d 610 (1986). This Court is liberal in finding a genuine issue of material fact. Linebaugh, supra.

In Allstate Ins. Co. v. Miller, 175 Mich.App. 515, 519, 438 N.W.2d 638 (1989), this Court reiterated the basic rules applicable to the construction of insurance contracts as follows:

Insurance contracts must be interpreted by reading them as a whole. Boyd v General Motors Acceptance Corp, 162 Mich App 446, 452; 413 NW2d 683 (1987). The contract language must be given its ordinary and plain meaning, not a technical or strained construction. Wilson v Home Owners Mutual Ins Co, 148 Mich App 485, 490; 384 NW2d 807 (1986). If, after reading the entire contract, it can reasonably be understood in different ways--one providing coverage and the other excluding coverage--the ambiguity is to be liberally construed against the insurer and in favor of coverage. Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d 440 (1982), reh den 412 Mich 1119 (1982). Furthermore, exclusionary clauses in insurance contracts are to be strictly construed against the insurer. Westen v Karwat, 157 Mich App 261, 264; 403 NW2d 115 (1987). But, where the contract language is clear, unambiguous, and not in contravention of public policy, its terms will be enforced as written. Raska, supra [412 Mich.], pp 361-362 ; Usher v St Paul Fire & Marine Ins Co, 126 Mich App 443, 447; 337 NW2d 351 (1983).

Further, where there is no ambiguity, contract construction is a question of law for the trial court's determination. Hafner v. DAIIE, 176 Mich.App. 151, 155, 438 N.W.2d 891 (1989).

Although not the dispositive issue of the case, we find that Millers' insurance contract was not ambiguous, that the endorsement was in effect and that the exclusion applied. The declarations page of Millers' policy clearly states in typewritten language that the disputed endorsement, CA 2310, is "contained in this policy at its inception." Further, the endorsement states that "the following need be completed only when the endorsement is issued subsequent to preparation of the policy."

Endorsement CA 2310, the disputed endorsement, states in pertinent part:

TRUCKERS--INSURANCE FOR NON-TRUCKING USE (MICHIGAN)

* * * * * *

B. Michigan Personal Injury and Property Protection coverages do not apply to bodily injury or property damage resulting from the operation, maintenance or use of the covered auto in the business of anyone to whom it is leased or rented if the lessee has Michigan Personal Injury and Property Protection coverages on the auto.

Because the declarations page clearly states in typewritten language that CA 2310 is part of the policy at its inception, and because the endorsement states that it need be filled out only if issued subsequent to the preparation of the policy, the blank endorsement was part of the policy and was in full effect at the time of Lamotte's accident to exclude coverage for the commercial use of his vehicle if DCI had Michigan personal injury and property protection coverages on the vehicle. However, this conclusion only resolves the issue of whether it is Millers or Forum which is responsible to plaintiff for PIP benefits, in this case an interesting but irrelevant academic exercise.

The more difficult question, and the dispositive issue of the case, is whether State Farm and Auto Club are relieved of liability. Contrary to what State Farm and Auto Club argue, the language in the exclusion does not create a mutually exclusive situation wherein sole liability goes to either Millers or Forum. As will be explained, pursuant to M.C.L. § 500.3114(1); M.S.A. § 24.13114(1), as amended, regardless of which party is liable as between Millers and Forum, State Farm and Auto Club stand in the same order of priority and, therefore, summary disposition as to State Farm and Auto Club was improper. This conclusion is derived from a construction of the above mentioned statute.

We note first some basic rules of statutory construction. Where the language of a statute is clear and unambiguous, judicial interpretation is neither required nor permitted, and this Court should not look beyond the ordinary meaning of that unambiguous language in giving effect to the statute. Attard v. Adamczyk, 141 Mich.App. 246, 250, 367 N.W.2d 75 (1985). In construing a statute, a court is to presume that every word has some force or meaning, and we are to avoid any construction which would render a statute or any portion of it nugatory. Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956). We are to assume that the express mention of any one thing in the statute implies the exclusion of other similar things. Stowers v. Wolodzko, 386 Mich. 119, 133, 191 N.W.2d 355 (1971).

The first subsection of M.C.L. § 500.3114; M.S.A. § 24.13114, prior to its amendment in 1980 which was effective January 15, 1981, stated as follows:

(1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in...