Wasik v. Auto Club Ins. Ass'n

• Decision Date: 02 June 2022
• Docket Number: 355848
• Parties: GRIFFIN WASIK, Plaintiff-Appellant, v. AUTO CLUB INSURANCE ASSOCIATION, and PROGRESSIVE MARATHON INSURANCE COMPANY, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

GRIFFIN WASIK, Plaintiff-Appellant, v. AUTO CLUB INSURANCE ASSOCIATION, and PROGRESSIVE MARATHON INSURANCE COMPANY, Defendants-Appellees.

No. 355848

Court of Appeals of Michigan

June 2, 2022

Oakland Circuit Court LC No. 2020-179089-NF

Before: Rick, P.J., and Murray and Shapiro, JJ.

Murray, J.

Plaintiff appeals as of right the final order granting motions for summary disposition brought by defendants, Auto Club Insurance Association and Progressive Marathon Insurance Company, and dismissing the case with prejudice.

In resolving this appeal, we must decide a matter of first impression: does the phrase "hit and run vehicle" under an auto insurance policy include a vehicle that is pulled over after hitting another vehicle, the drivers of both vehicles exit the cars and inspect the vehicles for damage, and mutually conclude that because no damage exists there is no need to contact the police or exchange insurance information? For the reasons expressed below, we conclude that it does not, and therefore affirm the trial court's order.

I. BACKGROUND

The parties agree that the material facts regarding the accident and the immediate aftermath are undisputed. Anna Mayer, plaintiff's girlfriend, was driving her car with plaintiff as the sole passenger. Mayer was stopped at a red light, and when she attempted to turn right, she felt her vehicle slide on a patch of ice. As she continued turning, the car behind her, a Ford Explorer, slid on the same patch of ice and hit the back, passenger side of Mayer's vehicle. Mayer and the driver of the Explorer turned on their hazard lights, and the Explorer followed Mayer to the nearest parking lot, where Mayer and the driver exited their vehicles to check for damage and ensure there were no injuries. On finding no damage to her vehicle, Mayer assured the driver of the Explorer that there was no damage, and they mutually agreed that there was no need to contact the police. Mayer and the driver of the Explorer left the scene without exchanging information.

Plaintiff began complaining of injuries almost as soon as he and Mayer arrived at plaintiff's house, so Mayer drove plaintiff to an emergency room that night, where he was diagnosed with a concussion. Plaintiff thereafter sought personal injury protection (PIP) benefits from Progressive, and uninsured motorist (UM) benefits from Progressive (the insurer of plaintiff's mother's vehicle) and Auto Club (the insurer of Mayer's vehicle), under the no-fault act, MCL 500.3101 et seq., for medical expenses, replacement services, and attendant care related to injuries plaintiff sustained in the motor vehicle accident.

Progressive and Auto Club eventually moved for summary disposition under MCR 2.116(C)(10) with respect to plaintiff's UM claims, arguing plaintiff was not entitled to benefits because under the common meaning of the phrase "hit and run vehicle," the Explorer was not a "hit-and-run vehicle" under the insurance policies. Plaintiff argued that it was unnecessary to apply the common meaning of the phrase "hit-and-run vehicle" because it was already defined by MCL 257.617, MCL 257.617a, and MCL 257.619. As noted, the trial court held that the Explorer was not a "hit-and-run vehicle" under either policy, employing the plain and ordinary meaning of the phrase. Plaintiff moved for reconsideration, which the trial court denied. This appeal followed.

II. STANDARDS OF REVIEW

A. APPELLATE STANDARDS OF REVIEW

In this appeal, we must decide whether the trial court properly granted defendants' motions for summary disposition, which in turn requires us to determine whether the trial court correctly applied the plain language of the insurance contracts. We engage in a de novo review of both issues. See Dell v Citizens Ins Co of America, 312 Mich.App. 734, 739; 880 N.W.2d 280 (2015) ("This Court . . . reviews de novo a trial court's decision on a motion for summary disposition.") and McDonald v Farm Bureau Ins Co, 480 Mich. 191, 197; 747 N.W.2d 811 (2008) (The de novo standard of review applies to "[q]uestions involving the proper interpretation of a contract or the legal effect of a contractual clause . . . ."). This, of course, means we give respectful consideration, but no deference to, the trial court decision. Gillette Commercial Operations North America & Subsidiaries v Dep't of Treasury, 312 Mich.App. 394, 405 n 3; 878 N.W.2d 891 (2015) ("Though we can give no deference to the trial court's legal rulings, unlike the deference we give to discretionary calls on evidence or findings of fact, we nevertheless give the trial court's legal rulings careful consideration.").

B. LEGAL PRINCIPLES GOVERNING OUR REVIEW

The two motions for summary disposition were brought pursuant to MCR 2.116(C)(10), which requires a court to consider "the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008). "Summary disposition is appropriate . . . if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id.

The standards for reading and applying insurance contracts are familiar and require a court to construe an insurance contract "in the same manner as other contracts, assigning the words in the contract their 'ordinary and plain meaning if such would be apparent to a reader of the instrument.'" Auto-Owners Ins Co v Olympia Entertainment, Inc, 310 Mich.App. 132, 145; 871 N.W.2d 530 (2015), quoting DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 366-367; 817 N.W.2d 504 (2012). "[I]f the language of the contract is unambiguous, [this Court] construe[s] and enforce[s] the contract as written." Holland v Trinity Health Care Corp, 287 Mich.App. 524, 527; 791 N.W.2d 724 (2010) (citations and quotation marks omitted). "Courts may not impose an ambiguity on clear contract language." Coates v Bastian Bros Inc, 276 Mich.App. 498, 503; 741 N.W.2d 539 (2007) (citation omitted). And a provision is not ambiguous if "it is not susceptible to more than one interpretation and does not conflict with any other provision." Id. at 510.

"An ambiguous provision in an insurance contract is construed against the insurer and in favor of coverage," Auto Owners Ins Co v Seils, 310 Mich.App. 132, 146; 871 N.W.2d 530 (2015), though "this rule is only to be applied if all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have left the [factfinder] unable to determine what the parties intended their contract to mean." Klapp v United Ins Group Agency, Inc, 468 Mich. 459, 471; 663 N.W.2d 447 (2003). An insurance contract is not ambiguous "merely because a term is not defined in the contract," McGrath v Allstate Ins Co, 290 Mich.App. 434, 439; 802 N.W.2d 619 (2010), nor simply because the parties disagree on its meaning. Gortney v Norfolk & Western R Co, 216 Mich.App. 535, 540; 549 N.W.2d 612 (1996) ("The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity.").

III. DISCUSSION

"Because providing UM coverage is optional and not statutorily mandated under the no-fault act, the policy language alone controls the circumstances entitling a claimant to an award of benefits." DeFrain, 491 Mich. at 367. We, therefore, look to the terms agreed to by the parties in their insurance contracts.

Progressive's UM insurance policy, which was owned by plaintiff's mother and which covered him, states:

[W]e will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. sustained by an injured person;

2. caused by an accident; and

3. arising out of the ownership, maintenance or use of an uninsured motor vehicle.

The Progressive policy defines the term "uninsured motor vehicle" as:

[A] land motor vehicle or trailer of any type:

d. that is a hit-and-run vehicle whose owner or operator cannot be identified and which strikes:

(i) you, a relative, or a rated resident;

(ii) a vehicle that you, a relative, or a rated resident are occupying[.]

The "hit and run vehicle" provisions of the Auto Club policy that covered Mayer's vehicle were quite similar to the Progressive policy, and provide:

1. Subject to the Definitions, Exclusions, Conditions and Limits of Liability of this policy, we will pay damages for bodily injury to an insured person which:

a. is caused by accident; and

b. arises out of the ownership, operation, maintenance or use of an uninsured motor vehicle; and

c. that insured person suffers death, serious impairment of body function or permanent serious disfigurement; and

d. that insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle.

The Auto Club policy defines the term "uninsured motor vehicle" as a motor vehicle that is:

b. 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[.]

For plaintiff to obtain UM benefits under either policy, he must establish that (1) a "hit and run vehicle" (2) whose operator is unknown (3) made direct physical contact with the motor vehicle plaintiff was occupying. Neither policy defines the phrase "hit-and-run vehicle," and all parties agree that whether plaintiff is entitled to receive no-fault UM...