Whether an exclusionary provision in the policy applied; MCL 500.2118(2)(f); Husted v. Dobbs; Century Sur. Co. v. Charron; Amerisure Ins. Co. v. Graff Chevrolet, Inc.; Michigan Nat’l Bank v. Laskowski; Raska v. Farm Bureau Mut. Ins. Co. of MI; Applicability of the Motor Carrier Act (MCL 475.1 et seq.); Abandoned argument; Houghton v. Keller; Whether the trial court properly applied Graff; Claim that the trial court should have applied Powers v. Detroit Auto. Inter-Ins. Exch.; Wilkie v. Auto-Owners Ins. Co.; Claim that the exclusionary provision was ambiguous
[Unpublished opinion.] Holding that there was no question of fact that under the exclusionary provision at issue, plaintiff-Farm Bureau Mutual Insurance was not liable to indemnify or defend anyone related to the accident, the trial court properly granted plaintiff’s motion for summary disposition on this basis. Defendant-Conor Lewis was working as a pizza delivery driver, driving a car owned by his father (defendant-Greg Lewis) and insured by plaintiff. While delivering pizzas, he hit the rear of defendant-Michelle Wagner’s car. Michelle and her husband defendant-James Wagner later sued Conor, Greg, and Conor’s employer for damages resulting from the accident. Plaintiff claimed that a policy exclusion exempted it from liability because Conor was delivering pizzas when the accident occurred. The court held that the contract was not ambiguous. Michelle and James did not dispute that the trial court correctly held that there was no question of material fact that Conor was delivering pizzas pursuant to his employment when the accident occurred. The court concluded that there was no material distinction between the provision in Graff and the provision at issue here. Although the provision in this case used the word “fee” as opposed to the word “consideration” in Graff, the court did not believe there was “a substantive difference from the provision in Graff because according each provision its plain and ordinary meaning” resulted “in the understanding that being paid a wage for delivering pizza is encompassed in both. Because plaintiff was carrying property for a fee at the time of the accident and because the policy excluded from coverage damage arising from a vehicle used to carry property for a fee, plaintiff” could not be held liable for the risk it did not assume. The exclusionary provision at issue “was lawful and not against public policy.” Further, because it was “clear, unambiguous and not in contravention of” public policy, it must be enforced as written. “So, plaintiff was not obligated to provide coverage arising from the accident, and under the terms of the policy plaintiff had ‘no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy[.]’” Affirmed.
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012