Slaughter v. Smith, Docket No. 96483
| Decision Date | 19 April 1988 |
| Docket Number | Docket No. 96483 |
| Citation | 421 N.W.2d 702,167 Mich.App. 400 |
| Parties | Dennis B. SLAUGHTER and Mary K. Slaughter, individually, and Mary K. Slaughter, as Next Friend for William L. Slaughter, Minor Child, Plaintiffs, v. Richard J. SMITH and Constance S. Smith, Defendants. Richard J. SMITH and Constance S. Smith, Third-Party Plaintiffs-Appellees, v. CADILLAC INSURANCE COMPANY and All Drivers Insurance Center, Inc., Third-Party Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Stuart & Stuart by Robert A. Cole, Marshall, for third-party plaintiffs-appellees Richard J. Smith and Constance S. Smith.
Allen & Letzring by Stephen L. Simons, Battle Creek, for third-party defendants-appellants Cadillac Ins. Co. and All Drivers Ins. Center, Inc.
Before McDONALD, P.J., and DOCTOROFF and ROBINSON, * JJ.
Third-party defendants appeal as of right from a judgment granting third-party plaintiffs' motion for summary disposition under MCR 2.116(C)(10), and denying third-party defendants' motion for summary disposition under the same rule. For purposes of clarity we shall refer to third-party plaintiffs as the Smiths and third-party defendants as Cadillac.
On April 29, 1983, Richard J. Smith purchased a six-month policy of insurance from Cadillac, through its agent, All Drivers Insurance Center, covering a 1966 GMC pickup truck owned by Richard J. Smith. This policy was to expire on October 29, 1983. In September of 1983, Richard J. and Constance S. Smith decided to change their insurance protection from Cadillac to Auto-Owners Insurance Company, and after receiving an insurance binder from Auto-Owners they asked Cadillac, on September 8, 1983, to cancel their policy with Cadillac.
On September 20, 1983, Auto-Owners notified the Smiths that their application for insurance had been rejected and that Auto-Owners coverage would end on October 12, 1983.
On September 29, 1983, Cadillac sent the Smiths a notice of cancellation effective October 11, 1983, for nonpayment of premium.
On October 4, 1983, Cadillac sent the Smiths a notice of reinstatement of the original six-month policy. This notice indicated that the Smiths' policy, which had been cancelled on August 2, 1983, was reinstated as of August 10, 1983.
On November 1, 1983, three days after the six-month policy expired, Richard Smith, while operating the GMC pickup, struck Mary K. Slaughter, daughter of plaintiffs herein.
Cadillac refused to defend the subsequent suit brought by plaintiffs against the Smiths, asserting that the Smiths were not, at the time of the accident, insured by Cadillac. This triggered the third-party complaint against Cadillac.
The first question to be answered is whether the trial judge erred in granting summary disposition to the Smiths on the ground that there was no genuine issue as to any material fact. We find no error.
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of any reasonable doubt to the opposing party, the court must determine whether the kind of record which might be developed would leave open an issue upon which reasonable minds might differ. Fulton v. Pontiac General Hospital, 160 Mich.App. 728, 735, 408 N.W.2d 536 (1987); Pauley v. Hall, 124 Mich.App. 255, 262, 335 N.W.2d 197 (1983), lv. den. 418 Mich. 870 (1983); MCR 2.116(G)(4). The moving party must identify by supporting affidavits the facts it believes cannot be genuinely disputed. Goldman v. Loubella Extendables, 91 Mich.App. 212, 217, 283 N.W.2d 695 (1979), lv. den. 407 Mich. 901 (1979). The opposing party must show the existence of a factual dispute by submitting opposing affidavits, testimony, depositions, admissions or other documentary evidence. Fulton, supra 160 Mich.App. at 735, 408 N.W.2d 536.
We are not talking here about cancellation of the insurance policy before its expiration date, but rather about a nonrenewal of the policy upon its expiration at the end of its term.
Michigan has no statute governing the procedures which must be followed by an insurer which elects not to renew its insured's auto policy.
M.C.L. § 500.3204(2); M.S.A. § 24.13204(2) provides:
"Refusal to renew any policy of automobile liability insurance shall not constitute a cancellation unless the insurer fails to mail, 20 days prior to the termination date of the policy, by first class mail, a notice to the insured that the policy will not be renewed."
It could be argued that the Legislature, by this language, is attempting to impose a notice requirement prior to nonrenewal at the expiration date of the policy. We note, however, that this provision appears in that portion of the statute dealing with cancellation of automobile liability policies (Chapter 32 of the Insurance Code), § 3208 of which specifically makes the chapter not applicable to termination of coverage at the end of any policy period. M.C.L. § 500.3208; M.S.A. § 24.13208.
In the absence of a statute governing nonrenewal, we look to the provisions of the policy itself. Radford v. National Indemnity Co., 50 Mich.App. 698, 701, 213 N.W.2d 843 (1973).
The policy provides as follows:
In this case, Cadillac, on September 29, 1983, sent the Smiths a notice of cancellation which included a notice of intent not to renew the insurance policy. Before the notice of cancellation became effective on October 11, Cadillac on October 4 reinstated the policy. Did this reinstatement obligate Cadillac to send another notice of nonrenewal in order to bring the policy to an end on its...
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