Usher v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 11 August 1983
• Docket Number: Docket No. 63113
• Citation: 337 N.W.2d 351,126 Mich.App. 443
• Parties: Moscu USHER, a/k/a Via Veneto Importers, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 351

337 N.W.2d 351

126 Mich.App. 443

Moscu USHER, a/k/a Via Veneto Importers, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 63113.

Court of Appeals of Michigan.

Submitted March 14, 1983.

Decided June 8, 1983.

Released for Publication Aug. 11, 1983.

Alan M. Vosko, Southfield, for plaintiff-appellant.

Denenberg, Tuffley, Thorpe, Bocan & Patrick by Charles R. Tuffley, Southfield, for defendant-appellee.

Before T.M. BURNS, P.J., and CYNAR and MARUTIAK, ^* JJ.

PER CURIAM.

Plaintiff commenced this action against his insurer, defendant St. Paul Fire & Marine Insurance Company, to collect on a claim under his insurance contract with defendant. Upon motion of defendant, after a hearing held on February 17, 1982, the trial court granted summary judgment in favor of defendant under GCR 1963, 117.2(3). Plaintiff appeals as of right.

Plaintiff owns and operates Via Veneto Importers, a wholesale jewelry outlet. Beginning on July 21, 1980, plaintiff's business was insured against property damage with defendant under a "Jeweler's Block Policy". The application for the insurance was incorporated as part of the policy. Under the terms of the policy, plaintiff purported to warrant that 100 percent of the jewelry would be kept in locked safes when the business was closed. On November 29, 1980, while the business was closed, burglars entered the premises and removed over $75,000 worth of jewelry which had been left outside of the locked safes. No jewelry located inside either locked safe was stolen. Plaintiff's attorney stated at the summary judgment hearing that plaintiff was unable to place the jewelry in a locked safe because he became very ill and had to leave. Defendant rejected plaintiff's insurance claim.

A motion for summary judgment brought under GCR 1963, 117.2(3) tests the factual sufficiency of the claim or defense. The court is to consider affidavits, pleadings, depositions and other documentary evidence submitted by the parties. Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978). The benefit of any reasonable doubt is given to the party opposing the motion, and the court may only grant the motion if it is impossible for the claim or defense to be supported at trial because of a deficiency which cannot be overcome. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973).

Defendant argued below and the trial court held that plaintiff breached his warranty that he would keep 100 percent of his stock in locked safes when the business was closed. Plaintiff admitted that only jewelry left outside the locked safes was stolen.

The first paragraph of the insurance policy between plaintiff and defendant, entitled "Jeweler's Block Policy", provides:

"This Policy is issued in consideration of the premium specified, and of the Declaration(s) and Proposal(s) attached hereto and made a part hereof and which is (are) agreed to be the basis of this Policy. The Insured hereby warrants to be true each and every statement and particular contained in the Proposal(s)."

At the top of the third page of the policy the following bold face notice was attached:

"NOTICE

"THE ANSWERS to the questions in the proposal attached to this Policy CONSTITUTE WARRANTIES. If they are incorrect or are not followed, YOUR INSURANCE CAN BE VOIDED."

Paragraph 16 of the attached and incorporated "Proposal for Jeweler's Block Policy" is entitled "WARRANTIES AS TO PROPERTY INSURED DURING TERM OF INSURANCE AT ALL TIMES WHEN PREMISES ARE CLOSED". The form, completed by plaintiff, indicates that 100 percent of the stock would be kept in a locked safe or vault.

An insurance contract which is ambiguous must be liberally construed in favor of the insured. Foremost Life Ins. Co. v. Waters, 88 Mich.App. 599, 604, 278 N.W.2d 688 (1979). If the policy language is clear and unequivocal, however, its terms must be enforced; the courts will not rewrite the contract. DAIIE v. Leonard Underwriters, Inc., 117 Mich.App. 300, 304, 323 N.W.2d 679 (1982). See also, Western Fire Ins. Co. v. J.R. Snyder, Inc., 76 Mich.App. 242, 245, 256 N.W.2d 451 (1977), lv. den. 402 Mich. 822 (1977).

It is well settled that an insured must be held to a knowledge of the terms and conditions contained in his insurance policy, even though he may not have read it. Russell v. State Farm Mutual Automobile Ins. Co., 47 Mich.App. 677, 679, 209 N.W.2d 815 (1973), lv. den. 390 Mich. 788 (1973). By the plain language of the policy and the incorporated application, plaintiff warranted that 100 percent of the stock would be kept in locked safes when the business was closed. In Lehr v. Professional Underwriters, 296...