No-fault insurance; Optional collision coverage; Rescission; Material misrepresentation; Howard v LM Gen Ins Co; Hearsay; MRE 801(a); MRE 802; Admissions; MCR 2.312; Dykes v William Beaumont Hosp; Distinguishing Sherman v Progressive MI Ins Co

The court held that the trial court did not err by granting defendants summary disposition because plaintiff-insurer failed to establish that the alleged misrepresentation about one vehicle was material to collision coverage on the different vehicle involved in the accident. Plaintiff sought to void defendant-Witt’s no-fault policy ab initio after she allegedly misrepresented ownership of a Nissan, although the collision claim involved damage to a Kia. On appeal, the court held that Howard controlled and plaintiff had to show “that the misrepresentation was material to the coverage of the vehicle in question.” The court rejected plaintiff’s rescission letter as evidence because it was hearsay, and it could not qualify as a business record where “‘the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.’” The letter was prepared after the collision “as a means to avoid liability on its collision coverage.” The court also held that plaintiff’s affidavit did not create a genuine issue of material fact because it conflicted with plaintiff’s earlier binding admission that it sometimes issues policies to insureds who do not own the covered vehicle. Relying on Dykes, the court noted that when a party certifies a fact in a civil action, it may not create a factual issue “by merely asserting the contrary in an affidavit.” Because plaintiff’s only reliance evidence was inadmissible or rebutted by its own admission, the court found no genuine issue of material fact. Affirmed.