McJimpson v. Auto Club Grp. Ins. Co., Docket No. 320671.

Decision Date12 May 2016
Docket NumberDocket No. 320671.
Citation315 Mich.App. 353,889 N.W.2d 724
Parties McJIMPSON v. AUTO CLUB GROUP INSURANCE COMPANY.
CourtCourt of Appeal of Michigan — District of US

Reifman Law Firm, Southfield (by Steven W. Reifman ) for Karen D. McJimpson.

Garan Lucow Miller, PC, Detroit (by Caryn A. Ford ), for Auto Club Group Insurance Company.

Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

WILDER, P.J.

Defendant, Auto Club Group Insurance Company, appeals as of right an order denying its motion for partial summary disposition. We reverse and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

This action arises out of injuries sustained on April 5, 2012, by plaintiff, Karen Denise McJimpson, when a piece of metal flew off an unidentified 18–wheeler semitruck and struck her car as she drove eastbound on I–96 between Novi Road and Beck Road. The semitruck was two cars ahead of plaintiff's vehicle, driving in the same direction. Suddenly, an object flew off the truck, and vehicles near the truck started swerving. Plaintiff did not see the object strike the vehicle in front of her before the object struck plaintiff's car and shattered her windshield. Plaintiff slammed on her brakes, which caused the object to rebound off the hood of her car, strike the roof of the car, and finally come to rest in the road. The driver of the truck never stopped.

Following the incident, the Michigan State Police trooper who arrived to assist plaintiff pointed out the piece of sheet metal that he believed hit her vehicle. During her deposition, plaintiff described the object as an arc-shaped piece of silvery metal and estimated that the object was approximately half the size of her car's windshield. Plaintiff sustained numerous cuts and bruises during the accident and was eventually diagnosed with a "SLAP" tear in her left shoulder, strains and sprains in her back

and neck, and spinal injuries.

Plaintiff made a claim for uninsured-motorist benefits under the insurance policy that she held with defendant. Under the policy, plaintiff was entitled to uninsured-motorist benefits if the vehicle that caused her injuries met the contractual definition of an "uninsured motor vehicle," which, in relevant part, included "a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with: (1) you or a resident relative, or (2) a motor vehicle which an insured person is occupying. " (Italicized emphasis added.)

Plaintiff filed a complaint against defendant alleging that defendant had unlawfully or unreasonably refused or neglected to pay uninsured-motorist benefits.1 Defendant filed a motion for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10) on the ground that the facts as alleged and testified to by plaintiff did not meet the requirements of the uninsured-motorist provision because plaintiff conceded that she was struck by an object propelled by or from the unidentified vehicle and not by the vehicle itself.

In her response, plaintiff distinguished the unpublished case cited by defendant in its brief and argued that the policy language unambiguously provided coverage under these circumstances. She further argued that at a minimum the terms of the policy were ambiguous and accordingly should be interpreted in favor of the insured. The trial court denied defendant's motion for summary disposition, stating:

[Testimony that the object "came off the truck and hit the Plaintiff's car" is] the only testimony we have. I read the cases that were cited. I don't think anything is really on point. I think the language in [defendant's] policy is ambiguous. For that one reason I'm going to interpret the meaning against [defendant] because it is ambiguous and [defendant is] the drafter.
Secondly, I think there was direct physical contact. It flew through the air. It wasn't interrupted by anything. It directly flew off the truck through the air and hit the Plaintiff's car and caused the accident. That's my interpretation, so your motion is denied.

On February 18, 2014, the trial court entered an order denying defendant's motion for partial summary disposition, and this appeal ensued.

II. STANDARDS OF REVIEW

"This Court reviews de novo a trial court's decision on a motion for summary disposition."

Gorman v. American Honda Motor Co., Inc., 302 Mich.App. 113, 115, 839 N.W.2d 223 (2013). Additionally, this Court reviews de novo, as a question of law, a trial court's construction and interpretation of an insurance policy, including a trial court's conclusion regarding whether the terms of the policy are ambiguous. Dancey v. Travelers Prop. Cas. Co. of America, 288 Mich.App. 1, 7, 792 N.W.2d 372 (2010).

While the trial court did not specify the particular subrule of MCR 2.116(C) under which it denied defendant's motion for partial summary disposition, in light of the trial court's statements at the motion hearing regarding plaintiff's deposition testimony, it is apparent that the trial court considered documentation beyond the pleadings and therefore ruled on the motion under MCR 2.116(C)(10). See Besic v. Citizens Ins. Co. of the Midwest, 290 Mich.App. 19, 23, 800 N.W.2d 93 (2010). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v. Auto Club Ins. Ass'n, 491 Mich. 200, 206, 815 N.W.2d 412 (2012). In deciding a motion under MCR 2.116(C)(10), this Court reviews "the entire record, including affidavits, depositions, admissions, or other documentary evidence," in the light most favorable to the nonmoving party. Gorman, 302 Mich.App. at 115, 839 N.W.2d 223. To avoid dismissal on a motion for summary disposition under MCR 2.116(C)(10), the nonmoving party must "show[ ] by evidentiary materials that a genuine issue of disputed fact exists, and the disputed factual issue must be material to the dispositive legal claim [.]" Auto Club Ins. Ass'n v. State Auto. Mut. Ins. Co., 258 Mich.App. 328, 333, 671 N.W.2d 132 (2003) (citations omitted); see also MCR 2.116(G)(4). Conversely, "[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 with respect to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Perfecting Church, 303 Mich.App. 1, 4, 840 N.W.2d 401 (2013).

III. ANALYSIS

On appeal, defendant argues that plaintiff is not entitled to uninsured-motorist benefits as a matter of law under the language of the insurance policy because the phrase "direct physical contact" is not ambiguous and because the undisputed facts demonstrate that the unidentified semitruck never made "direct physical contact" with plaintiff's vehicle. We agree.

As the Michigan Supreme Court recognized in Rory v. Continental Ins. Co., 473 Mich. 457, 465–466, 703 N.W.2d 23 (2005) :

Uninsured motorist insurance permits an injured motorist to obtain coverage from his or her own insurance company to the extent that a third-party claim would be permitted against the uninsured at-fault driver. Uninsured motorist coverage is optional—it is not compulsory coverage mandated by the no-fault act. Accordingly, the rights and limitations of such coverage are purely contractual and are construed without reference to the no-fault act. [Citations omitted.]

See also Dawson v. Farm Bureau Mut. Ins. Co. of Mich., 293 Mich.App. 563, 568, 810 N.W.2d 106 (2011). "An insurance policy is similar to any other contractual agreement, and, thus, the court's role is to determine what the agreement was and effectuate the intent of the parties." Hunt v. Drielick, 496 Mich. 366, 372, 852 N.W.2d 562 (2014) (quotation marks and citation omitted). Likewise, the general principles of contract interpretation apply to insurance policies. Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc., 267 Mich.App. 708, 714, 706 N.W.2d 426 (2005). This Court reads an insurance contract "as a whole, with meaning given to all terms." Dancey, 288 Mich.App. at 8, 792 N.W.2d 372. "Policy language should be given its plain and ordinary meaning," Wells Fargo Bank, NA v. Null, 304 Mich.App. 508, 519, 847 N.W.2d 657 (2014), and "unless a contract provision violates [the] law or one of the traditional defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written," Rory, 473 Mich. at 461, 703 N.W.2d 23.

Over the years, we have considered various linguistic formulations of uninsured-motorist coverage. Some policies are written broadly and would provide coverage in this setting. For example, the policy in Dancey, 288 Mich.App. at 11–12, 792 N.W.2d 372, stated that such coverage required that "[t]he [unidentified] vehicle must hit, or cause an object to hit, an ‘insured’, a covered ‘auto’ or a vehicle an ‘insured’ is ‘occupying.’ " (Emphasis added.)

Other policies we have examined have been written more narrowly. Some provide that there must be "physical contact" between the vehicles but do not include the phrase "cause an object to hit." In these cases, we have held that either direct or indirect contact is sufficient to trigger coverage and that contact with a propelled object constitutes indirect contact provided that there is a "substantial physical nexus" between the propelled object and the unidentified vehicle.

In Hill v. Citizens Ins. Co. of America, 157 Mich.App. 383, 394, 403 N.W.2d 147 (1987), we reviewed a broad range of cases and concluded that "the ‘physical contact’ provision in uninsured motor vehicle coverage may be satisfied...

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