Farm Bureau Mutual Insurance v. Blood
Farm Bureau Mutual Insurance v. Blood
Opinion of the Court
In these appeals as of right from orders granting plaintiff Farm Bureau Mutual Insurance Company summary disposition pursuant to MCR 2.116(C)(10) in actions for a declaratory judgment, which have been consolidated pursuant to this Court’s order, minor defendants Mandy Fennell and Gordon Nummer, Jr., through their respective next friends, David Fennell and Mary Perry (hereafter defendants), appeal. We reverse.
Mandy Fennell and Gordon Nummer, Jr., were severely injured when an automobile in which they were passengers veered from the road and crashed. Fennell and Nummer, through their next friends, individually sued the driver of the automobile involved in the accident, Wayne M. Martin; the owner of the automobile, Donald R. Martin; and Sterling K. Blood, who they alleged served alcohol to the underaged driver before the accident. During discovery, Fennell and Nummer learned that Blood, a minor, was residing with his mother and stepfather, Joy and Eddie
Plaintiff filed these declaratory judgment actions, alleging on several grounds that it had no liability for any personal injury damages Blood owed to Fennell and Nummer. Eventually, plaintiff sought summary disposition on the single ground that the insurance policy contained an exclusion for damages arising out of criminal acts of the insured and Blood’s serving of alcohol to Martin was a criminal act. The circuit court granted plaintiff summary disposition on this ground. On appeal, defendants contend that the circuit court erred in granting summary disposition pursuant to MCR 2.116(C)(10) because, in their view, a genuine issue of material fact existed concerning whether plaintiff owed insurance coverage to its insured, Sterling Blood.
We review a circuit court’s grant of summary disposition de novo to determine whether the moving party was entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 223 Mich App 264, 270; 565 NW2d 877 (1997). In determining whether an insurance policy applies, this Court must first determine whether the policy is clear and unambiguous on its face. In doing so, the insurance contract should be read and interpreted as a whole. Taylor v Blue Cross & Blue Shield of Michigan, 205 Mich App 644, 649; 517 NW2d 864 (1994). An insurance contract is clear if it fairly admits of but one interpretation. Id. An insurance contract is ambiguous if, after reading the entire contract, its language reasonably can be understood in
The insurance policy in dispute has several exclusions, including a clause that plaintiff contends excludes coverage for all damages arising out of criminal acts of the insured. Plaintiff successfully argued to the circuit court that Blood’s violation of MCL 436.33; MSA 18.1004, which provides that a person who knowingly furnishes alcohol to a minor is guilty of a misdemeanor, precluded coverage under the criminal acts exclusion of the policy. The circuit court granted summary disposition to plaintiff on this ground. Plaintiff contends that this Court’s opinion in Allstate Ins Co v Keillor (On Remand), 203 Mich App 36; 511 NW2d 702 (1993), aff’d in part (After Remand), 450 Mich 412; 537 NW2d 589 (1995), is dis-positive of its declaratory judgment actions. In that case, a panel of this Court found that for purposes of an exclusionary clause, it is a criminal act to serve alcohol to a minor. That decision was affirmed in part by the Supreme Court on other grounds. The Supreme Court expressly declined to consider the issue before us.
Nor do we need to consider this issue to resolve the present matter. Defendants argue that the exclu
Plaintiffs omission in subsection u presents the logical inquiry whether the policy excludes coverage for bodily injury arising out of a criminal act of an insured, whether it excludes coverage for property damages arising out of a criminal act of an insured, or whether it excludes coverage for both. Most of the other exclusions in the policy, which are precisely written, leave no doubt in the mind of the policy
Plaintiff now argues that the policy must be read in its entirety to determine if an ambiguity exists and that the exclusions in § II, part 2 clearly refer to bodily injury and property damage liability coverage.
In a separate argument, defendants contend that the circuit court erred in granting plaintiffs motion for summary disposition because plaintiff did not attach supporting affidavits or other documents as required by MCR 2.116(G)(3). As we pointed out in
We reverse the circuit court’s grant of summary disposition to plaintiff and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
The policy defines a criminal act as “any act or number of actions which are criminal in nature whether or not the act or actions lead to successfiil prosecution or conviction.”
We note that other ambiguities exist within the “Exclusions” section of the policy. Two other subsections under part 2 of § II do not clearly delineate the types of damages being excluded. Subsection t excludes coverage for “damages” to “your product; your work; or impaired property” under certain conditions. A paragraph that presumably falls between subsections t and u states that “Exclusions c. through u. do not apply to damage by fire to premises rented to you.” Although subsection v clearly excludes bodily injury or property damage if an insured “is also an insured under a nuclear energy liability policy,” subsection w when read alone appears to be ambiguous in that it reads simply, “from any: 1) nuclear reaction; 2) nuclear radiation; or 3) radioactive contamination. . . .”
Were it not for the same rule of construction, it would also be possible to read subsection w as an extension of subsection v.
Concurring Opinion
(concurring in the result only). The trial court concluded that this Court’s opinion in Allstate Ins Co v Keillor (On Remand), 203 Mich App 36; 511 NW2d 702 (1993), aff’d in part (After Remand), 450 Mich 412; 537 NW2d 589 (1995), is dis-positive of plaintiff’s declaratory judgment actions.
In Allstate, supra, a panel of this Court considered an exclusionary clause in the insurance contract that excluded liability for “intentional or criminal acts of an insured person . . . .” 203 Mich App at 39-40. This Court held that the act of serving alcohol to a minor constitutes a criminal act causing the exclusion to apply. Id. at 40. The Court then concluded that
When the Michigan Supreme Court reviews a decision of this Court, it occasionally decides to address less than all the issues presented to this Court. This was the case in Allstate, supra. With regard to the issues the Supreme Court decides to address, the Court reviews the matter in the first instance, not merely considering the correctness of this Court’s decision. Once the Supreme Court announces its decision, that opinion is determinative of the legal question or questions involved and becomes binding precedent on intermediate appellate and trial courts. Riley v Northland Geriatric Center, 425 Mich 668, 680; 391 NW2d 331 (1986). Points of law not discussed in the Supreme Court’s opinion or ruled upon by that Court are not authoritative and are not to be considered as having been so decided as to constitute precedents. See Dist of Columbia v Sierra Club, 670
When, after reviewing the issues in any particular case on appeal from this Court, the Supreme Court enters an order affirming or reversing a final order issued by a panel of this Court, that order becomes the law of the case. While this Court’s opinion may provide guidance to those attempting to interpret the Supreme Court’s holding, the intermediate opinion no longer has precedential value and may not be relied upon unless the Supreme Court has specifically approved or adopted the Court’s opinion or holding. Similarly, when a case is appealed to the Supreme Court and the Court does not accept the reasoning or analysis of the lower court, or limits its acceptance of the lower court’s opinion, the rejected analysis cannot be relied on.
A contrary conclusion would inevitably leave us with the uncertainty of two tiers of jurisprudence in Michigan. The first would be that part of a decision of this Court that has been appealed to the Supreme Court but does not constitute part of that Court’s opinion. The second would be the decision of the
In any event, with respect to Allstate, supra, the Supreme Court noted that it was affirming the opinions of this Court and the trial court “only insofar as they hold that coverage is precluded by the motor vehicle exclusion.” 450 Mich 420-421. Such an express statement of the Court’s intentions should not be read as an implicit acceptance of the remainder of this Court’s opinion. To the contrary, the Court appears to have specifically rejected those parts of the opinion not relating to the motor vehicle exclusion. This conclusion is supported by the fact that Justice Riley wrote a separate concurring opinion in Allstate simply to “signal” her “concerns with the result of the Court of Appeals regarding the intentional/criminal acts exclusion.” Id. at 421 (Riley, J., concurring). Justice Riley agreed, however, that the Court did not need to consider that exclusion because its decision was based on the automobile exception. Id. Were we to read the majority’s opinion in Allstate as an approval of this Court’s analysis regarding the intentional/criminal acts exclusion, Justice Riley’s opinion
Insofar as I believe that the portion of this Court’s opinion in Allstate, supra, that relates to the intentional/criminal acts exclusion is not good law in Michigan, I disagree with the majority’s apparent approval of Allstate. Therefore, because I conclude that the trial court erred in relying on Allstate, I would reverse and remand for further proceedings consistent with this opinion.
The trial court found this Court’s opinion in Allstate, supra, to be dis-positive of this case. However, the majority opinion, ante at 62, concludes that it need not “consider this issue to resolve the present matter.”
I am troubled by a determination that the criminal acts exclusion applies to preclude insurance coverage. Consider the following hypothetical situations: (1) the insured is charged with drunk driving, a criminal act that would preclude coverage; (2) the insured violates a city ordinance by failing to shovel the snow from his sidewalk, a criminal act that would preclude coverage. Such an interpretation could greatly restrict the insured’s ability to get insurance coverage in situations where coverage becomes vitally important.
This is an issue of first impression in Michigan. Because neither party has briefed this issue on appeal, I would remand this case to the trial court to allow the parties to file briefs and to present this matter to the trial court before an appellate decision.
Reference
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