Lash v. Allstate Ins. Co.

• Citation: 532 N.W.2d 869,210 Mich.App. 98
• Decision Date: 21 April 1995
• Docket Number: Docket No. 162342
• Parties: Ronald LASH, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY and Mary Yost, Defendants-Appellants.
• Court: Court of Appeal of Michigan (US)

Page 869

532 N.W.2d 869

210 Mich.App. 98

Ronald LASH, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY and Mary Yost, Defendants-Appellants.

Docket No. 162342.

Court of Appeals of Michigan.

Submitted Feb. 8, 1995, at Lansing.

Decided April 21, 1995, at 10:00 a.m.

Released for Publication June 19, 1995.

Michael J. Mangapora, P.C. by Robert D. Kent-Bryant, Flint, for plaintiff.

Collison & Collison, P.C. by Joseph T. Collison, Saginaw, for defendant.

Before FITZGERALD, P.J., and TAYLOR and MARKMAN, JJ.

MARKMAN, Judge.

This is a declaratory judgment action. Defendants appeal by leave granted from an order denying their motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse.

On April 9, 1991, plaintiff met with defendant Yost, an insurance agent for defendant Allstate, and submitted an application for no-fault automobile insurance with Allstate on his motorcycle. In connection with the application, Yost asked plaintiff whether he had any traffic citations within the last three years, to which he responded "no". Plaintiff paid the premium, and Yost issued a temporary certificate of insurance. The next day Yost received a copy of plaintiff's driving record, which reflected that, on May 1, 1988, he had been issued a citation for operating a motor vehicle while impaired. Yost contacted plaintiff the following day to inform him that the citation was still on his record. Yost asked plaintiff to discuss the matter with her in person as soon as possible. Plaintiff and Yost met on April 15, 1991, at which time Yost told plaintiff that he was ineligible for insurance with Allstate. She informed him that the Allstate policy could be canceled that day or that he could leave it up to Allstate to reject the application. Plaintiff told Yost that he had made a mistake about the date of his citation and that he honestly believed that the citation was issued before April 9, 1988. Although Yost gave plaintiff an insurance quote with the Michigan Automobile Insurance Placement Facility, plaintiff declined this insurance. Plaintiff signed a document stating that his application for insurance was "void effective April 15, 1991 9:20 am per insureds request" and Yost immediately returned plaintiff's premium. Ten days later, plaintiff was involved in an accident with his motorcycle and sought benefits through Allstate. When Allstate refused to pay no-fault benefits, plaintiff filed this suit, alleging breach of contract by Allstate and negligence by Yost.

Allstate moved for summary disposition, arguing that there was no insurance coverage in effect at the time of the accident. Allstate contended that plaintiff's application for insurance coverage had been voided and rescinded effective April 15, 1991. Plaintiff argued that the policy was not rescinded and that his and Yost's actions were an attempt at cancellation of the policy. He contended that the cancellation was ineffective, however, because he had not been given twenty days' notice of cancellation in accordance with M.C.L. § 500.3224; M.S.A. § 24.13224. The trial court denied Allstate's motion, ruling that there was a question of material fact whether Allstate had rescinded the policy or canceled it. Although Yost had also moved for summary disposition of the negligence count, the trial court did not rule on that motion.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A party opposing a motion brought under MCR 2.116(C)(10) may not rest upon the mere allegations or denials in that party's pleadings, but must by affidavit, deposition, admission, or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. McCormic v. Auto Club Ins. Ass'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993). This Court is liberal in finding a genuine issue of material fact. Nonetheless, where the opposing party fails to come forward with evidence, beyond allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. Id.

Having reviewed the record, we conclude that there is no issue of material fact and that Allstate is entitled to judgment as a matter of law. We first note that plaintiff's reliance on M.C.L. § 500.3224; M.S.A. § 24.13224 is misplaced. Assuming that a cancellation of the no-fault automobile policy is involved, M.C.L. § 500.3020; M.S.A. § 24.13020, rather than M.C.L. § 500.3224; M.S.A. § 24.13224, governs. Section 3020 provides for a ten-day, not a twenty-day, notice of cancellation. American States Ins. Co. v. Auto Club Ins. Ass'n, 193 Mich.App. 248, 251-252, 484 N.W.2d 1 (1992). Further, under § 3020, an insurer need not give the ten days' written notice of cancellation where the insured consents to the cancellation. Blekkenk v. Allstate Ins. Co., 152 Mich.App. 65, 71, 393 N.W.2d 883 (1986). In this case, the form plaintiff signed clearly indicates that he requested the policy be "void." There is nothing to suggest that plaintiff was coerced into signing the statement. Because plaintiff intended to cancel and Allstate accepted that cancellation, the cancellation was effective.

Moreover, the contract at issue was rescinded, and for this reason also the trial court should have granted summary disposition. This Court has outlined the nature of rescission:

To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning; that is, not merely to release the parties from further obligation to...