Insurance coverage dispute; Policy contract interpretation; Unaddressed issues of fact & law precluding complete summary disposition

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 80146 in the 9/15/23 edition) to the extent that it directed entry of judgment for plaintiff-Village, and remanded to the trial court for further proceedings. It concluded that the “Court of Appeals erred to the extent that its opinion remanded to the circuit court with instructions to enter judgment for plaintiff in full, precluding consideration of issues not yet decided.” In this breach of contract action, plaintiff sought “insurance coverage for judgments [it] paid arising out of its decision to end retiree healthcare benefits for some former employees.” In moving for partial summary disposition, defendant “argued, among other things, that there was no coverage because plaintiff failed to notify defendant of the wrongful acts or claims as allegedly required by the policy. However, the trial court did not address whether this provision applied to plaintiff’s claim in its oral ruling denying defendant’s motion. The parties did not raise it in their briefing in the Court of Appeals. And it was not addressed in the Court of Appeals’ order granting leave to appeal, . . . or its subsequent opinion granting summary disposition and ordering judgment” for plaintiff. On appeal to the court, defendant also argued in its briefing “that plaintiff had a duty to cooperate with it in investigating and defending such suits and obtaining consent to settle. This issue was not raised in the trial court or considered by the trial court or the Court of Appeals.” Thus, the court concluded that, “on the present record, there remain unaddressed issues of fact and law that preclude complete summary disposition for plaintiff at this time.” It directed the trial court on remand to “consider any unaddressed issues of fact and law that have not been abandoned or litigated.” The court denied the application for leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Concurring in part and dissenting in part, Justice Zahra agreed “with the majority that the Court of Appeals improperly reversed and remanded for entry of judgment for” plaintiff. He disagreed with its “decision not to squarely address the more significant question presented in this case[.]” Thus, he would grant the application.