Jeremy Drouillard v. American Alternative Insurance Corporation
Jeremy Drouillard v. American Alternative Insurance Corporation
Opinion of the Court
Defendant, American Alternative Insurance Corporation (AAIC), appeals by leave granted
On the evening of October 13, 2014, plaintiff, Jeremy Drouillard, an emergency medical technician, was involved in a single-vehicle accident while riding as a passenger in an ambulance driven by his partner, Angelica Schoenberg. Schoenberg and Drouillard were traveling westbound on Griswold, in "lights and sirens mode," on their way to a service call near the intersection of Griswold and 14th Street. Schoenberg opined that she was driving less than 45 miles per hour when the ambulance suddenly struck something in the intersection of Griswold and 13th Street. She did not know what she struck until she exited the ambulance and saw drywall dust and debris scattered in the roadway. As a result of the accident, Drouillard suffered injuries to his lumbar spine and was eventually disabled from work.
The events surrounding the accident were witnessed by three bystanders, who resided in homes fronting Griswold near the intersection with 13th Street. According to these bystanders, a white pickup truck driving on 13th Street darted across *846Griswold in front of the ambulance. The rapid acceleration of the truck caused a large quantity of building materials to fall from the truck's bed or trailer into the roadway, blocking both traveling lanes on Griswold. Shortly thereafter, the ambulance entered the intersection and struck the building materials.
Drouillard's employer maintained insurance for the ambulance through a policy issued by AAIC, which included an endorsement for Michigan uninsured motorist coverage. The endorsement stated that AAIC would pay all amounts an insured individual was entitled to recover from the owner or driver of an "uninsured motor vehicle." Pertinent to this matter, the policy defined "uninsured motor vehicle" as follows:
"Uninsured motor vehicle" means a land motor vehicle or "trailer":
* * *
d. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit, or cause an object to hit, an "insured", a covered "auto" or a vehicle an "insured" is "occupying". If there is no direct physical contact with the hit-and-run vehicle, the facts of the "accident" must be corroborated by competent evidence, other than the testimony of any person having a claim under this or any similar insurance as the result of such "accident".
Drouillard filed suit against AAIC on September 21, 2015, seeking uninsured motorist benefits pursuant to the stated policy terms. AAIC admitted that Drouillard was an "insured" who would qualify for uninsured motorist benefits if all other terms and conditions were satisfied, but AAIC maintained that benefits were not available to Drouillard because there was no "uninsured motor vehicle" involved in the accident. AAIC moved for summary disposition on this basis, arguing that the pickup truck did not qualify as a hit-and-run vehicle and that the pickup truck did not cause an object to hit the insured ambulance. The trial court rejected both arguments, and this appeal followed.
This Court reviews de novo rulings on summary disposition motions.
"An insurance policy is similar to any other contractual agreement, and, thus, the court's role is to 'determine what the agreement was and effectuate the intent of the parties.' "
AAIC argues on appeal that it was entitled to summary disposition because there was no evidence that an "uninsured motor vehicle" was involved in the accident in light of the contractual definition of an uninsured motor vehicle as a vehicle that is a "hit-and-run vehicle." Specifically, AAIC argues that the common usage of the phrase "hit-and-run" denotes a knowledge element on the part of the driver, and AAIC calls our attention to various statutes establishing criminal penalties for a " 'driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident' " but fails to stop at the scene.
We find it unnecessary to determine whether the phrase "hit-and-run vehicle" requires knowledge of the accident on the part of the driver because assuming, without deciding, that knowledge is required, the trial court correctly concluded that questions of fact remained as to that issue. On appeal, AAIC argues that the only evidence of the truck driver's knowledge consisted of eyewitness speculation.
Next, AAIC argues that the plain language of the insurance policy only provides coverage in these circumstances if the pickup truck caused an object to hit the insured ambulance. Therefore, according to AAIC, it was entitled to summary disposition because the unrefuted evidence demonstrated that the ambulance struck the stationary pile of building materials-the building materials did not strike the ambulance.
As it relates to this issue, the trial court found that it was required by this Court's holding in Dancey , to deny AAIC's motion for summary disposition. In that case, this Court was called upon to interpret identical policy language to determine whether the plaintiff was entitled to uninsured motorist benefits after she struck a ladder in the roadway when there was no direct evidence that the ladder had fallen from a vehicle.
Importantly, the issue before the Court in Dancey , and the reason for the Court's conclusion, was whether the plaintiff could establish a substantial physical nexus between the ladder and a hit-and-run vehicle. By contrast, as it did in the trial court, AAIC asks this Court to assume for purposes of its appeal that a substantial nexus existed between the pickup truck, the building materials, and the ambulance's impact with the materials. Therefore, we agree with AAIC's contention that the trial court erred by concluding that it was bound to follow the outcome in Dancey . Although Dancey involved the same policy language and substantially similar facts, it did not turn on the same issue-i.e., how to give effect to the language requiring that the hit-and-run vehicle "cause an object to hit" the insured, an insured vehicle, *849or a vehicle occupied by an insured. Therefore, Dancey was not dispositive of the issue raised by AAIC.
It is evident from the plain language of the policy that coverage is not limited to instances involving direct, physical contact with the hit-and-run vehicle. Instead, the policy states that "[t]he vehicle must hit, or cause an object to hit , an 'insured', a covered 'auto' or a vehicle an 'insured' is 'occupying[.]' "
The construction of the relevant policy language reflects a clear distinction between the direct object and the indirect object. Coverage is available under the policy only if the subject of the sentence (the "vehicle," meaning the hit-and-run vehicle), caused the direct object ("an object") to hit the indirect object ("an 'insured', a covered 'auto' or a vehicle an 'insured' is 'occupying' "). The order of the words in this sentence is grammatically distinct from the language that would be used to describe circumstances in which the hit-and-run vehicle caused the insured to hit an object. Interpreting the language at issue in a manner that would include those circumstances would require a "forced or constrained construction," which should be avoided.
Drouillard relies on a dictionary definition of the verb "to hit" to refute this reading of the policy language. Specifically, Drouillard calls attention to a particular definition of the word "hit": "to come in contact with."
Accordingly, we must conclude that the plain language of the contract provides uninsured motorist coverage to Drouillard only if the unidentified pickup truck caused an object to hit the insured ambulance, and not vice versa. Reviewing the pertinent section as a whole, the language cannot reasonably be understood in any other way. Importantly, Drouillard and Schoenberg both admitted that the building materials were stationary at the time of the accident, and Schoenberg agreed that, as the driver of the ambulance, she struck the materials in the roadway. Therefore, this is not a situation in which a hit-and-run vehicle caused an object to hit *850the insured ambulance, and Drouillard is not entitled to uninsured motorist benefits under the terms of the policy.
Reversed and remanded for entry of an order granting summary disposition in favor of AAIC. We do not retain jurisdiction.
TUKEL, J., concurred with TALBOT, C.J.
Drouillard v. American Alternative Ins. Corp. , unpublished order of the Court of Appeals, entered February 23, 2017 (Docket No. 334977).
Dancey v. Travelers Prop. Cas. Co. of America ,
See Nuculovic v. Hill ,
Dancey ,
Dancey ,
Hunt v. Drielick ,
McCoig Materials, LLC v. Galui Constr., Inc. ,
Twichel v. MIC Gen. Ins. Corp. ,
McCoig Materials, LLC ,
Hastings Mut. Ins. Co. v. Safety King, Inc. ,
Auto-Owners Ins. Co. ,
See MCL 257.617 ; MCL 257.617a ; MCL 257.618 ; MCL 257.619.
Presumably, AAIC is referring to eyewitness opinion testimony that the driver "had to feel that shift of weight," that the driver did not return because "he knew he was going to be in trouble," and that "if you lost that much weight, you could tell ...."
Ghaffari v. Turner Constr. Co.(On Remand),
Dancey ,
Id . at 13-18,
Id . at 17,
Id . at 19-22,
Id . at 21,
Emphasis added.
Nesbitt v. American Community Mut. Ins. Co. ,
Merriam-Webster's Collegiate Dictionary (11th ed.).
Id .
Id . at p. 19a.
Concurring Opinion
I agree that summary disposition must be granted to defendant, and I join the majority opinion. There are two principal legal points at issue: (1) did the pickup truck hit, or cause an object to hit, the ambulance as required by the policy language for there to be coverage and (2) was the pickup truck a "hit-and-run vehicle" as required by the policy language for there to be coverage. The Chief Judge and I answer the first question in the negative, which is sufficient to mandate summary disposition in favor of defendant. The dissent answers the first question in the affirmative by relying on previous decisions of this Court that have ignored the second question and that have merely assumed that the vehicles at issue in those cases were hit-and-run vehicles. I write separately to identify the assumptions that have been and are being built into our jurisprudence-assumptions I believe merit review by our Supreme Court. Although this case likely does not present the issues clearly enough to warrant that review, I believe those assumptions would merit review in a future case..
I. POLICY LANGUAGE
The policy at issue here required that the pickup truck carrying the drywall "hit, or cause an object to hit , an 'insured', a covered 'auto' or a vehicle an 'insured' is 'occupying[.]' " (Emphasis added.) Rather than focusing on the critical "hit, or cause an object to hit" language, as does the majority, the dissent focuses on this Court's opinion in Dancey v. Travelers Prop. Cas. Co. of America ,
The majority indicates that the Dancey Court focused on the possibility of a "substantial physical nexus" between the ladder and another vehicle and not on the "cause an object to hit" phrasing from the policy. Implicit in the Dancey Court's holding, however, was that the situation in Dancey satisfied the pertinent language of the policy. Therefore, Dancey provides supportive caselaw for plaintiff's position in the present case. [Post at 230.]
I respectfully disagree. "A point of law merely assumed in an opinion, not discussed, is not authoritative." United States v. Oleson ,
II. WHAT CONSTITUTES A "HIT-AND-RUN VEHICLE"?
The analysis in Dancey has another flaw-it fails to fully consider what is necessary for a vehicle to constitute a "hit-and-run vehicle," the threshold for coverage in the first instance. Defendant argues that there is no evidence that the driver of the pickup truck knew of an accident and then left the scene, the statutory definition of some hit-and-run offenses. Both the majority and the dissent agree that defendant's reliance on statutory definitions is misplaced; because the term itself is undefined in the policy, statutory definitions have no applicability, and the term must be given its ordinary meaning. See Citizens Ins. Co. v. Pro-Seal Serv. Group, Inc. ,
A. HIT AND RUN v RUN AND HIT
Dancey and Berry v. State Farm Mut. Auto. Ins. Co. ,
In Dancey , a ladder fell or dropped off a truck some time before the plaintiff's vehicle struck the ladder on the highway. At least one vehicle in front of the plaintiff's, which had blocked her view, managed to avoid the ladder. Dancey ,
Accordingly, even assuming that the "hit" portion of the hit-and-run requirement was met in Dancey , there was no evidence that the driver fled or "ran" from the accident, even if the driver knew that the ladder had fallen off. Unlike in the *852present case, there was no immediate accident in Dancey that followed the ladder coming to a stop on the roadway, and when the ladder fell it was not necessarily the case that an accident would ensue. One vehicle seemed to have avoided the ladder, and the plaintiff almost did as well. But in any event, all that the evidence showed was that after losing the ladder, the truck continued driving before an accident took place. Even if it could be proved that the driver of whatever vehicle lost the ladder knew that it had fallen off, at most it could be said that the driver had created a high likelihood of an accident by creating a very dangerous situation. Continuing one's driving under such circumstances, i.e., not stopping, is not flight or leaving the scene of an accident (as no accident has yet occurred) and thus does not fit the ordinary sense of running as used in the term "hit-and-run vehicle." By thereby putting the cart before the horse, Dancey converted the term "hit-and-run" into a new concept, "run-and-hit," because the later accident had the legal effect of turning the driving that preceded the accident into the running. Dancey labeled a truck that created a dangerous condition short of an accident and continued driving a "hit-and-run vehicle" after it was known with hindsight that an accident occurred. Dancey simply ignored or overlooked the fact that there must first be a "hit" and then a "run" in order for a vehicle to become a "hit-and-run vehicle." By ignoring the hit-and-run requirement, Dancey violated the rule that "[t]he language of insurance contracts should be read as a whole and must be construed to give effect to every word, clause, and phrase," Mich. Battery Equip., Inc. v. Emcasco Ins. Co. ,
Berry , a case also cited by the dissent, demonstrates this point even more clearly. In Berry , a truck was hauling a load of scrap metal. At some point it stopped, and the driver got out and inspected the load. Between 5 and 15 minutes later, at a spot about a half-mile from where the driver had stopped to inspect the truck, a fallen piece of metal caused an accident. Berry ,
*853B. APPLICATION TO CURRENT CASE
In the present case, the policy language, properly construed, solves the problem. Its requirement that a vehicle "hit, or cause an object to hit" an insured vehicle (as opposed to the insured vehicle hitting a stationary object, as in this case) necessarily requires that an accident occur before whatever driving by the unidentified vehicle is labeled as running. However, if this Court continues to adopt the Dancey and Berry assumptions of what constitutes "hit and run" then our Supreme Court will have to address the issue in an appropriate case.
Contrary to the suggestion made in the concurring opinion, I do not find that Dancey and Berry are strictly controlling in the present case. I find them suggestive of coverage, and reading them in conjunction with the plain language of the policy leads me to conclude that the trial court did not err by denying summary disposition to defendant.
I agree with the majority that defendant was not entitled to summary disposition on the basis of the argument relating to the common definition of a "hit-and-run vehicle" because, contrary to defendant's argument, the trial court correctly concluded that there were genuine issues of fact regarding knowledge on the part of the driver. Whether this knowledge must ultimately be proved in order for plaintiff to recover is not a question currently before us because we are reviewing, simply, whether the trial court correctly denied defendant's motion for summary disposition.
Dissenting Opinion
I respectfully dissent because I believe the trial court correctly denied defendant's motion for summary disposition. I would affirm.
As noted by the majority, plaintiff's insurance policy defined "uninsured motor vehicle" as follows:
3. "Uninsured motor vehicle" means a land motor vehicle or "trailer":
* * *
d. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit, or cause an object to hit, an "insured", a covered "auto" or a vehicle an "insured" is "occupying". If there is no direct physical contact with the hit-and-run vehicle, the facts of the "accident" must be corroborated by competent evidence, other than the testimony of any person having a claim under this or any similar insurance as the result of such "accident".
In Dancey v. Travelers Prop. Cas. Co. of America ,
Defendant claims that in order for the hit-and-run vehicle to "cause an object to hit" plaintiff's vehicle, there must be a physical nexus between the hit-and-run vehicle and the object. Defendant argues that because no one could affirmatively state that the ladder fell off another vehicle, only speculation would permit a jury to conclude that there was any nexus between the ladder and the hit-and-run vehicle, and speculation is insufficient to establish a genuine issue of fact. Plaintiff argues that there was no other logical explanation for how the ladder came to be in the roadway, given that the area was not under construction, was not open to pedestrian traffic, and was not beneath an overpass from which a ladder could have fallen. [ Id . at 12,792 N.W.2d 372 .]
This Court ultimately affirmed the denial of summary disposition to the insurer, concluding that sufficient evidence had been presented to establish a substantial physical nexus between the ladder and another vehicle. Id . at 21-22,
*854Therefore, Dancey provides supportive caselaw for plaintiff's position in the present case.
In Berry v. State Farm Mut. Auto. Ins. Co. ,
[D]efendant takes issue with the [trial] court's legal conclusion that plaintiff was covered under the uninsured motorist provision of the insurance policy. Defendant acknowledges, and we agree, that the policy's requirement that a hit-and-run vehicle must strike the insured's vehicle constitutes a requirement of physical contact between the hit-and-run vehicle and the insured's vehicle. Defendant's arguments all concern whether physical contact between a hit-and-run vehicle and plaintiff's vehicle occurred in this case.
* * *
[T]his Court has construed the physical contact requirement broadly to include indirect physical contact, such as where a rock is thrown or an object is cast off by the hit-and-run vehicle, as long as a substantial physical nexus between the disappearing vehicle and the object cast off or struck is established by the proofs. In this case, defendant argues that an insufficient nexus existed between a hit-and-run vehicle and the metal piece lying in the road. [ Id . at 346-347,556 N.W.2d 207 (citations omitted).]
The Berry Court ruled that "the legal requirement of a substantial physical nexus between the hit-and-run vehicle and the object struck by plaintiff was established." Id . at 350,
The policy in Berry defined the term "uninsured motor vehicle" as a "motor vehicle ... which strikes ... the vehicle the insured is occupying," and the Court found adequate evidence of coverage. Id . at 342, 352,
Both Dancey and Berry suggest the existence of coverage in the present case.
*855In light of the policy language and existing caselaw, I would affirm the denial of summary disposition to defendant.
The opinions of lower federal courts are not binding on this Court, but those opinions may be considered for their persuasive value. See Abela v. Gen. Motors Corp. ,
The temporal requirement of the term "hit and run" suggests that when this Court does consider whether the driver of a vehicle must have been aware of an accident for the accident to be labeled a hit-and-run, the answer will be yes. As this analysis has shown, absent a preceding accident there can be no hit and run. For the same reasons, absent knowledge of the accident, driving is simply driving, and it only becomes "running" if the driver is running from something, i.e., an accident.
Reference
- Full Case Name
- Jeremy DROUILLARD, Plaintiff-Appellee, v. AMERICAN ALTERNATIVE INSURANCE CORPORATION, Defendant-Appellant.
- Cited By
- 7 cases
- Status
- Published