Sun Ins. Office, Ltd. v. Keller

• Decision Date: 26 April 1973
• Docket Number: Docket No. 14862,No. 1,1
• Citation: Sun Ins. Office, Ltd. v. Keller, 208 N.W.2d 525, 46 Mich.App. 761 (Mich. App. 1973)
• Parties: SUN INSURANCE OFFICE, LTD., a foreign insuring corporation, Plaintiff-Appellee, v. Nicholas KELLER and Bernice Keller, Defendants-Appellants, and John L. Sexton and Loretta S. Sexton, Defendants
• Court: Court of Appeal of Michigan — District of US

Page 525

208 N.W.2d 525

46 Mich.App. 761

SUN INSURANCE OFFICE, LTD., a foreign insuring corporationPlaintiff-Appellee, v.Nicholas KELLER and Bernice Keller, Defendants-Appellants and John L. Sexton and Loretta S. Sexton, Defendants.

Docket No. 14862.

Court of Appeals of Michigan, Division No. 1.

April 26, 1973.

Released for Publication June 27, 1973.

David J. Capriccioso, Kelman, Loria, Downing & Schneider, Detroit, for keller.

John P. Zanglin, Detroit, for Sexton.

Edward M. Ranger, Sullivan, Sullivan, Ranger & Ward, Detroit, for appellee.

Before BRONSON, P.J., and R. B. BURNS and VanVALKENBURG, ^* JJ.

PER CURIAM.

Plaintiff filed this action for a declaratory judgment to ascertain its duties and obligations under an exclusionary clause in its insurance policy.The trial court held that, since the insured's acts were in fact intentional, the insurance company had no duty to defend him in a subsequent civil action, and granted the plaintiff's motion for summary judgment.The defendant moved to have that judgment set aside, and his motion was denied.He now appeals.

The plaintiff's attorney's affidavit which he had attached to his motion for summary judgment appears to be similar to the affidavit involved in Huron School Dist. v Huron Twp., 42 Mich.App. 590, 592--593, 202 N.W.2d 491(1972), lv. den., 388 Mich. 789(1972).The affidavit reads as follows:

'AFFIDAVIT OF EDWARD M. RANGER

'STATE OF MICHIGAN

'COUNTY OF WAYNE SS

'EDWARD M. RANGER, being first duly sworn, deposes and says that he has read the contents of the attached Motion for Summary Judgment by him subscribed, and further states that the contents of the same is true.

'Edward M. Ranger

'EDWARD M. RANGER

'Subscribed and sworn to before me this 8th day of October, 1971.

'Karen S. Fitzgerald

'Karen S. Fitzgerald

'Notary Public Oakland County, Mich.Acting in Wayne County, Mich.

'My Commission Expires May 13, 1975'

While the plaintiff asserts that his motion was not based upon GCR 1963, 117.2(3), his motion in fact stated:

'That there is no genuine issue of any material fact as to the quality of the acts committed by the defendant, John L. Sexton.'

In all reality, the plaintiff had in fact pled under GCR 117.2(3).

Since plaintiff pled under the above cited court rule, he was bound to follow the affidavit requirements of GCR 1963, 117.3 and 116.4.Just as in Huron School District, the above-quoted affidavit does not say that the plaintiff's attorney could competently testify as to the determinative issues involved in this case.

Reversed and remanded for further proceedings.

*WADE...