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

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: WILDER, P.J.
• Citation: 315 Mich.App. 353,889 N.W.2d 724
• Parties: McJIMPSON v. AUTO CLUB GROUP INSURANCE COMPANY.
• Docket Number: Docket No. 320671.
• Decision Date: 12 May 2016

315 Mich.App. 353
889 N.W.2d 724

McJIMPSON
v.
AUTO CLUB GROUP INSURANCE COMPANY.

Docket No. 320671.

Court of Appeals of Michigan.

Submitted July 14, 2015, at Detroit.
Decided May 12, 2016, at 9:00 a.m.

889 N.W.2d 724

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.

889 N.W.2d 725

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

WILDER, P.J.

315 Mich.App. 354

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

315 Mich.App. 355

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

315 Mich.App. 356

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]

889 N.W.2d 726

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."

315 Mich.App. 357

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....