Wrongful-death action; Premises liability; Possession or control; Gabrielson v Woods Condo Ass’n, Inc; Effect of a commercial rental lease; Applicability of the Stille-DeRossett-Hale Single State Construction Code Act (SSCCA); Applicability of the Housing Law of Michigan (HLM) & MCL 554.139; An insurer’s duty to defend; “Vacant”; Vushaj v Farm Bureau Gen Ins Co of MI; McNeel v Farm Bureau Gen Ins Co of MI; Applicability of policy exclusions for construction operations & bodily injury; United States Liability Insurance Company (USLI)

In these consolidated appeals, the court held in Docket Nos. 366490 and 368083 that defendants-AAJ Holdings, Manuel, and My, Realty Select were properly granted summary disposition based on lack of possession or control of the warehouse where plaintiff’s decedent was fatally electrocuted. In Docket Nos. 367445 and 367446, it held that the trial court did not err in ordering defendant-insurer (USLI) to defend AAJ in the wrongful-death portion of the case. Thus, it affirmed the trial court’s orders in all respects. AAJ owns the warehouse where the incident happened. It obtained insurance coverage for the warehouse through USLI. Manuel is a real estate broker who owns My, Realty Select. While he was trying to sell the property, break-ins led him “to rent the building to deter theft while he was looking for a permanent buyer.” The building was rented to nonparty-H pursuant to a Rental Agreement. As to AAJ, while plaintiff relied on sections of the SSCCA, HLM, and on MCL 554.139, none of these applied to the warehouse here. The court concluded that “if the lease agreement is valid, then the trial court properly granted summary disposition for AAJ Holdings, LLC and its agents.” And the parties resolved this question “by conceding that it is.” The court noted that “in the context of the wrongful death appeal, [they] affirmatively state that the lease is valid.” Thus, they waived this issue. As to Manuel and My, Realty Select, the court determined that whether or not the lease was valid, they “did not have possession or control of the warehouse.” As to the appeal related to USLI’s duty to defend AAJ, the court found that the “issue of whether the building was vacant involves a factual dispute.” Turning to whether policy exclusions barred coverage, it found a “genuine issue of material fact existed on whether there were construction operations occurring on the premises.” The court found that the Bodily Injury Exclusion presented “a closer question” given how broad it was. It “would arguably apply to bar coverage in this case simply because decedent was on the roof and the evidence supported he was performing work. However, questions of fact exist on the issue considering that it was unclear from the position of decedent’s body whether he was working before the incident and considering that the exclusion should be construed strictly in” AAJ’s favor.