Mate v. Wolverine Mut. Ins. Co.

• Decision Date: 01 December 1998
• Docket Number: Docket No. 201125
• Parties: Jeanette MATE, as Personal Representative of the Estate of Shane Mate, Deceased, Plaintiff-Appellant, v. WOLVERINE MUTUAL INSURANCE CO., and Buiten, Tamblin, Steensma & Associates, Inc., and Paul Buiten, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 379

592 N.W.2d 379

233 Mich.App. 14

Jeanette MATE, as Personal Representative of the Estate of Shane Mate, Deceased, Plaintiff-Appellant, v. WOLVERINE MUTUAL INSURANCE CO., and Buiten, Tamblin,

Steensma & Associates, Inc., and Paul Buiten,

Defendants-Appellees.

Docket No. 201125.

Court of Appeals of Michigan.

Submitted March 11, 1998, at Grand Rapids.

Decided Dec. 1, 1998, at 9:05 a.m.

Released for Publication March 12, 1999.

Smith, Haughey, Rice & Roegge (by Lance R. Mather and Robert K. Pike ), for the plaintiff. Grand Rapids

Gruel, Mills, Nims & Pylman, LLP (by Scott R. Melton ), for Wolverine Mutual Insurance Company. Grand Rapids

Sullivan, Ward, Bone, Tyler & Asher, P.C. (by Michelle A. Thomas ), for Buiten, Tamblin, Steensma & Associates, Inc., and Paul Buiten. Southfield

Before MARKEY, P.J., and RICHARD ALLEN GRIFFIN and WHITBECK, JJ.

RICHARD ALLEN GRIFFIN, J.

Plaintiff Jeanette Mate, as personal representative of the estate of Shane Mate, deceased, appeals as of right orders granting summary disposition in favor of defendants. Although Jeanette Mate (now Jeanette Hylarides) in her individual capacity was a party plaintiff in the lower court and filed a claim of appeal, Jeanette Mate, individually, has not filed a brief with this Court and therefore has abandoned any individual claims. MCR 7.216(A)(10). MCR 7.212(C)(5). Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959). We affirm.

I

The following are facts not in dispute. Shane Mate was killed in a motor vehicle accident on October 17, 1992. At the time of the tragic mishap, Shane Mate was an adult, eighteen years old, residing with his mother, Jeanette Mate. James Mate is Jeanette Mate's ex-husband and, despite the similarity of last names, is neither the father nor a relative of Shane Mate. Further, at the time of the accident, Jeanette Mate and her ex-husband James Mate resided in separate households.

On October 17, 1992, Jeanette Mate owned a 1985 Chrysler LeBaron automobile ¹ that was insured by defendant Wolverine Mutual Insurance Company (Wolverine). However, the sole named insured of the policy was James Mate, who was divorced from Jeanette in 1989.

Plaintiff personal representative brought the present complaint against defendants seeking underinsurance motorist benefits under the automobile insurance policy written by defendant Wolverine and sold by defendants Buiten, Tamblin, Steensma & Associates, Inc., and agent Paul Buiten (collectively Buiten). The lower court granted summary disposition in favor of defendants Wolverine and Buiten pursuant to MCR 2.116(C)(10).

II Standard of Review

A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim. Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 139, 445 N.W.2d 795 (1989). In Quinto v. Cross & Peters Co., 451 Mich. 358, 362-363, 547 N.W.2d 314 (1996), our Supreme Court set forth the following standards for deciding such a motion:

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4).

In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v. Globe Furniture Rentals, 205 Mich.App. 418, 420, 522 N.W.2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v. J Walter Thompson, 437 Mich. 109, 115, 469 N.W.2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v. Auto Club Ins. Ass'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993).

On appeal, we review de novo the lower court's decision whether to grant or deny summary disposition. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995).

III Breach of Contract

Underinsurance automobile insurance protection is not required by law and therefore is optional insurance offered by some, but not all, Michigan automobile insurance companies. Because such insurance is not mandated by statute, the scope, coverage, and limitations of underinsurance protection are governed by the insurance contract and the law pertaining to contracts. Auto-Owners Ins. Co. v. Leefers, 203 Mich.App. 5, 10-11, 512 N.W.2d 324 (1993). As the Supreme Court stated in Rohlman v. Hawkeye-Security Ins. Co., 442 Mich. 520, 524-525, 502 N.W.2d 310 (1993), regarding substantially similar uninsured motorists benefits:

PIP [personal protection insurance] benefits are mandated by statute under the no-fault act, M.C.L. § 500.3105; MSA 24.13105, and, therefore, the statute is the "rule book" for deciding the issues involved in questions regarding awarding those benefits. On the other hand, the insurance policy itself, which is the contract between the insurer and the insured, controls the interpretation of its own provisions providing benefits not required by statute. Therefore, because uninsured motorist benefits are not required by statute, interpretation of the policy dictates under what circumstances those benefits will be awarded.

First, we conclude that plaintiff's claim of a breach of the insurance contract is without merit. It is clear that the Wolverine policy of automobile insurance did not by its terms provide underinsurance coverage to Shane Mate. The underinsurance motorist provision at issue extends coverage under the policy only to "the named insured, his spouse if a resident of the same household and any family member." Family member is defined in the policy as

a person related to you [the named insured or a spouse if a resident of the same household] by blood, marriage or adoption who is a resident of your household. [Emphasis added.]

Shane Mate was neither a named insured in the policy nor was he related to James Mate or a resident of James Mate's household. Accordingly, the lower court correctly granted summary disposition in regard to plaintiff's breach of contract claim.

IV Agency

Next, plaintiff claims that a genuine issue of material fact exists regarding whether Buiten was an agent of Wolverine. We disagree.

"Ordinarily, an independent insurance agent or broker is an agent of the insured, not the insurer." Harwood v. Auto-Owners Ins. Co., 211 Mich.App. 249, 254, 535 N.W.2d 207 (1995); accord Mayer v. Auto-Owners Ins. Co., 127 Mich.App. 23, 26, 338 N.W.2d 407 (1983). In Harwood, supra at 254, 535 N.W.2d 207, we stated:

As did the insurance agent in Mayer, Thomas Barron, an independent agent who worked for the Roscommon Agency and who sold the subject policy to Russell, testified that he was an independent insurance agent and had the power to place insurance with various insurance companies. Pursuant to Mayer, supra, defendant Roscommon Agency was the agent of plaintiff, not of defendant Auto-Owners. Because there is no question of material fact that defendant Roscommon Agency was not the agent of defendant Auto-Owners, the trial court properly granted defendant's motion for summary disposition.

Like the insurance agents in Mayer and Harwood, Paul Buiten testified that Buiten & Associates is an independent insurance agency with the power to place insurance with various insurance companies, including Wolverine. Such testimony is usually sufficient to establish that an independent insurance agent is the agent of the insured, not the insurer. Plaintiff relies on Paul Buiten's deposition testimony to the effect that Buiten considers the insureds to be his "clients." However, our review of Paul Buiten's testimony in context reveals that in responding to plaintiff's question regarding whether Buiten & Associates was acting as Wolverine's agent, Paul Buiten testified that he was not Wolverine's agent but rather "the insureds are our clients." Viewing the facts in a light most favorable to plaintiff, there is no genuine issue of material fact regarding Buiten's status as an agent. The lower court properly found that Buiten was not acting as the agent of Wolverine.

V Estoppel

Next, plaintiff contends that the trial court erred in granting defendant Wolverine's motion for summary disposition because a genuine issue of material fact allegedly exists regarding whether Wolverine is estopped from disclaiming coverage for plaintiff's claim.

In certain circumstances, estoppel may operate to hold a defendant insurer, agent, or broker liable for coverage that differs from the express terms of the contract. Parmet Homes, Inc. v. Republic Ins. Co., 111 Mich.App. 140, 148, 314 N.W.2d 453 (1981). Equitable estoppel arises only " ' "when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." ' " Lichon v. American Universal Ins. Co., 435 Mich. 408, 415, 459 N.W.2d 288 (1990) (citations omitted).

Plaintiff argues that Buiten's silence...