Durasevic v. Grange Ins. Co. of Mich.
Durasevic v. Grange Ins. Co. of Mich.
Opinion of the Court
I. INTRODUCTION
Presently before the Court is Plaintiffs Hana Durasevic and Doka Durasevic's complaint against their insurance company, Grange Insurance Company of Michigan. Plaintiffs bring the present action alleging that Defendant is liable for insurance coverage for damage to their home. Plaintiffs filed a Motion for Partial Summary Judgment asserting Defendant's liability to provide them coverage. Defendant filed a Motion for Summary Judgment asserting that this Court should dismiss the entire action. For the reasons stated below, this Court will grant Defendant's Motion for Summary Judgment and deny Plaintiffs' Motion for Partial Summary Judgment.
II. FACTUAL BACKGROUND
This action arises from a dispute about insurance coverage for fire damage to Plaintiffs' home. On September 29, 2015, Plaintiffs submitted a claim to Defendant for fire damage to their house. Dkt. No. 25, pg. 4 (Pg. ID 310). Defendant issued $619,029.98 to Plaintiffs to cover expenses from the fire damage, paying money for coverage identified as *773Dwelling, Contents, Additional Living Expenses, Dwelling Expenses, and Contents Expenses. Dkt. No. 25-2, pg. 2 (Pg. ID 341). Defendant paid for Plaintiffs' temporary housing after the September 29, 2015 fire. Dkt. No. 25, pg. 8 (Pg. ID 314).
On April 29, 2016, a second fire occurred at Plaintiffs' original home, where the first fire occurred. Dkt. No. 25-2, pg. 2 (Pg. ID 341). At the time of the second fire, Plaintiffs still lived in temporary housing. Dkt. No. 25, pg. 8 (Pg. ID 314). Defendant paid $30,548.14 for the April 29th fire, paying money for coverage identified as Additional Living Expenses and Dwelling Expenses. Id. Defendant retained Kevin G. Pike, a senior fire investigator, to investigate the origin of the second fire. Dkt. No. 25-3, pg. 2 (Pg. ID 344). Mr. Pike concluded that someone started the fire intentionally. Id. at pg. 21 (Pg. ID 363). Mr. Pike's investigation also found that there was no forced entry into the home. Dkt. No. 5-2, pg. 9 (Pg. ID 95). Defendant conducted an investigation and found that Niko Durasevic, Plaintiffs' son, was at the residence just a few hours before the fire. Id. Therefore, Defendant concluded that it was more likely than not that Niko Durasevic intentionally started the April 29, 2016 fire.
On February 24, 2017, Defendant wrote Plaintiffs a letter stating why Plaintiffs' policy did not provide total coverage for their claim resulting from the April 29 fire. Dkt No. 5-2. The letter stated the following reasons for denying coverage: 1) Plaintiffs were vacant from the house for 60 days immediately preceding the fire; 2) some of the insured persons under the policy failed to provide sworn testimony at an EUO; 3) Plaintiffs failed to respond to repeated requests for documentation supporting the claim; 4) the evidence demonstrated that it was more likely than not that Niko Durasevic started the fire; and 5) Plaintiffs concealed Niko's involvement with the fire. Id. at pgs. 7-9 (Pg. ID 93-95).
On May 15, 2017, Plaintiffs filed the present action in the Macomb County Circuit Court. Dkt. No. 1-4. On June 26, 2017, Defendant removed the action to this Court. Dkt. No. 1. Plaintiffs then filed their Motion for Partial Summary Judgment on April 26, 2018. Dkt. No. 24. In their Motion, Plaintiffs request that this Court strike several of Defendant's affirmative defenses and hold Defendant liable for coverage of the April 29, 2016 fire. Id. Defendant responded to the Motion on May 17, 2018. Dkt. No. 29. Plaintiffs replied on May 25, 2018. Dkt. No. 31. On April 26, 2018, Defendant filed its Motion for Summary Judgment. Dkt. No. 25. Defendant asserts that this Court should dismiss the entire action because Plaintiffs *774failed to comply with its policy conditions. Id. Plaintiffs responded to the Motion on May 17, 2018. Dkt. No. 28. Defendant replied on May 31, 2018. Dkt. No. 33.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) governs summary judgment. The Rule states, "summary judgment shall be granted if 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Cehrs v. NE Ohio Alzheimer's Research Ctr. ,
IV. DISCUSSION
A. Defendant's Motion for Summary Judgment
Plaintiffs' and Defendant's Motions contain overlapping issues. This Court will address Defendant's Motion for Summary Judgment first. The Court will then apply its conclusions to Plaintiffs' Motion for Partial Summary Judgment to the extent they are applicable.
Defendant asserts three reasons why this Court should grant summary judgment in its favor. First, Plaintiffs' insurance policy excludes coverage for damage resulting from intentionally set fires if the dwelling was vacant for the 60 days immediately preceding the fire. Dkt. No. 25, pg. 2 (Pg. ID 308). Second, Plaintiffs' policy requires insured persons to provide sworn testimony at an EUO; Niko and Samantha Durasevic are insured persons who failed to submit to EUOs.
1. Argument One
First, Defendant argues that it is entitled to summary judgment because Plaintiffs' insurance policy excludes coverage for loss or damage resulting from intentionally set fires if the dwelling was vacant for the sixty days immediately preceding the fire. Dkt. No. 25, pg. 2 (Pg. ID 308). Plaintiff contends that their home was not vacant because the definition of vacant means that a dwelling is lacking both animate and inanimate objects. Dkt. No. 24, pg. 4 (Pg. ID 183). Plaintiffs' home was not empty of inanimate objects at the time of the second fire.
a. Vacancy
Plaintiffs' insurance policy with Defendant states the following:
B..... [W]e do not insure for loss ... caused directly or indirectly by any of the following:
Exclusion B.4. is removed and replaced with the following:
4. Vandalism or malicious mischief, including intentionally set fires, if the dwelling has been vacant for more than 60 consecutive days immediately preceding *775the loss. A building under construction is not considered vacant.
Dkt. No. 5-1, pg. 21, 41 (Pg. ID 61, 81). Plaintiffs' policy also states that "intentional acts" means "loss resulting from an action by or at the direction of any insured person committed with the intent to cause a loss, or where the results of such action are reasonably foreseeable and cause a loss." Id. at pg. 20 (Pg. ID 60).
After the first fire occurred at Plaintiffs' home on September 29, 2015, Defendant paid for Plaintiffs to reside in temporary housing. Dkt. No. 25, pg. 8 (Pg. ID 314). According to the EUO testimony of Mr. Durasevic, Plaintiffs have not lived in their original home since the first fire. See Dkt. No. 25-4, pgs. 4-6 (Pg. ID 409-11). Additionally, Plaintiffs have not started any construction work on their original home since the first fire happened. Id. at pg. 6 (Pg. ID 411). Defendant conducted an investigation after the April 29, 2016 fire. Dkt. No. 25-3, pg. 2 (Pg. ID 344). Defendant retained Kevin G. Pike, a senior fire investigator, to investigate the origin of the fire. Id. Pike concluded that someone started the fire intentionally. Id. at pg. 21 (Pg. ID 363). Defendant conducted an investigation and also found that Niko Durasevic, Plaintiffs' son, was at the residence just a few hours before the fire. Dkt. No. 5-2, pg. 9 (Pg. ID 95). Therefore, Defendant concluded that it was more likely than not that Niko Durasevic intentionally started the April 29, 2016 fire. Id. Based on the aforementioned information, Defendant asserts that it is not required to provide coverage because the second fire was intentional and Plaintiffs' home was vacant for the sixty days immediately preceding the fire. See Dkt. No. 25, pg. 8 (Pg. ID 314).
Plaintiffs cite McNeel v. Farm Bureau General Insurance Company of Michigan for the definition of the word "vacant."
[M]ost authorities have distinguished the terms "vacant" and "unoccupied." The term "vacant" has been construed to mean empty, deprived of contents, and without inanimate objects. It implies entire abandonment, and non-occupancy for any purpose. On the other hand "unoccupied" has been held to mean without animate objects, and implies that no actual use is being made of the premises by anyone corporeally present or in possession.
The court in McNeel found that the terms "vacant" and "unoccupied" were different because the insurance policy provision used the terms in different clauses, which had distinct requirements. Thus, the terms clearly had different meanings. Here, the relevant provision of Plaintiffs' insurance policy does not include the terms *776"vacant" and "unoccupied" together. Terms of a contract "must be interpreted in the context of the contract in which they appear." Vushaj v. Farm Bureau Gen. Ins. Co. of Mich. ,
Similarly, here, any reading of Plaintiffs' insurance provision results in the conclusion that the purpose of the vacancy exclusion is to protect Defendant from the risk of insuring a house without a human occupant. Therefore, this Court will construe the term "vacant" like the Vushaj court construed it, to mean "not routinely characterized by the presence of individuals." As previously stated, Plaintiffs' home was devoid of human occupants for six months preceding the second fire. See Dkt. No. 25-4, pgs. 4-6 (Pg. ID 409-11). Additionally, Plaintiffs have not started any construction work on their original home since the first fire happened. Id. at pg. 6 (Pg. ID 411). Therefore, Plaintiffs' home was vacant under the terms of their insurance policy provision.
Although Plaintiffs' house was vacant, the record presents a factual issue about whether the second fire was intentionally set. The vacancy exclusion states that Defendant does not cover loss for "intentionally set fires, if the dwelling has been vacant for more than 60 consecutive days immediately preceding the loss." Dkt. No. 5-1, pg. 21, 41 (Pg. ID 61, 81). Language in the policy on the prior page of the contract states that "intentional acts" means "loss resulting from an action by or at the direction of any insured person committed with the intent to cause a loss, or where the results of such action are reasonably foreseeable and cause a loss." Id. at pg. 20 (Pg. ID 60). The coverage position letter Defendant wrote to Plaintiff also defines an intentional act in the same manner. Dkt. No. 5-2, pg. 9 (Pg. ID 95). Therefore, an intentionally set fire is a fire that is set by an insured person with the intent to cause a loss of where the results of action will foreseeably cause a loss. The policy defines an insured person as:
a. you;
b. your relatives residing in your household; and
c. any other person under the age of 21 residing in your household who is in your care or the care of a resident relative.
Dkt. No. 5-1, pg. 10 (Pg. ID 50). It is not disputed that Niko Durasevic is an insured person under Plaintiffs' insurance policy because he is the son of the Plaintiffs and he resided in Plaintiffs' household. Defendant's investigation found that Niko Durasevic was at the residence just a few hours before the fire. Dkt. No. 5-2, pg. 9 (Pg. ID 95). The Senior Fire Investigator Mr. Pike also concluded that there was no evidence of forced entry prior to the fire. Id. Therefore, Defendant concluded that it was more likely than not that Niko Durasevic intentionally started the April 29, 2016 fire. Id. However, Niko's presence a few hours before the fire presents only circumstantial evidence that he intentionally set the fire. A reasonable juror could conclude that Niko did not start the fire, as the *777record only contains circumstantial evidence coupled with Defendant's self-serving conclusions.
b. Estoppel
Plaintiffs argue that, assuming this Court finds the vacancy exclusion applies, Defendant is estopped from asserting this defense because Defendant paid for Plaintiffs to live in temporary housing after the first fire. Dkt. No. 28, pg. 2 (Pg. ID 426). This Court found that there is a genuine issue of material fact about whether the vacancy exclusion applies. However, even this Court had found the vacancy exclusion applicable, Plaintiffs' estoppel argument is misplaced.
[F]or equitable estoppel to apply, a plaintiff must establish (1) that the defendant's acts or representations induced plaintiff to believe that the policy was in effect at the time of the accident, (2) that the plaintiff justifiably relied on this belief, and (3) that plaintiff was prejudiced as a result of his belief that the policy was still in effect."
Morales v. Auto-Owners Ins. Co. ,
2. Argument Two
Second, Defendant argues that it is entitled to summary judgment because Plaintiffs' insurance policy requires insured persons to provide sworn testimony at an EUO as a condition precedent to providing coverage. Dkt. No. 25, pg. 2 (Pg. ID 308). Niko and Samantha Durasevic are insured persons who failed to provide sworn testimony at an EUO.
Plaintiffs' insurance policy states that "[i]f a covered loss occurs, the insured person must ... submit to examinations under oath by any person named by us, while not in the presence of any other insured person, and sign the transcript of the examinations...." Dkt. No. 5-1, pg. 24 (Pg. ID 64). An insured person is:
a. you;
*778b. your relatives residing in your household; and
c. any other person under the age of 21 residing in your household who is in your care or the care of a resident relative.
Id. at pg. 10 (Pg. ID 50). The policy also states, "[i]n return for your premium payment and your compliance with all of the provisions of this policy, we agree to provide insurance subject to all the terms of this policy." Id. Lastly, the policy reads, "[w]e may not be sued unless there is full compliance with all the provisions and conditions of this policy." Id. at pg. 42 (Pg. ID 82). Defendant argues that it is entitled to summary judgment because not all of the insureds submitted to an EUO. Dkt. No. 25, pg. 2 (Pg. ID 308).
Plaintiffs concede that Niko and Samantha Durasevic-insureds under the insurance policy-did not submit to an EUO. See Dkt. No. 28, pg. 3 (Pg. ID 427). However, Plaintiffs state that the innocent co-insured doctrine precludes denial of coverage to one insured based upon the conduct of another insured. Id. at pg. 2 (Pg. ID 426). Further, Plaintiffs assert that Michigan follows the substantial performance of a contract rule. Id. at pg. 3 (Pg. ID 427). Plaintiffs argue that whether or not there was substantial performance of a contract is a question of fact for the jury. Id.
Plaintiffs argue that this Court should not preclude their recovery from Defendant due to Niko and Samantha Durasevic's failure to submit to EUOs. Dkt. No. 28, pg. 2 (Pg. ID 426). They cite Gordon v. St. Paul Fire and Marine Insurance Company for their position.
In Gordon , the plaintiff's home sustained fire damage and her insurance provider denied coverage for the fire because the plaintiff did not submit to an EUO.
In this case, it is uncontested that Niko and Samantha Durasevic failed to submit to EUOs. There is no evidence to suggest that Niko and Samantha did not submit to EUOs because their attorney was unable to attend. Therefore, Gordon is not applicable to the present case.
No other case law stands for the proposition that the innocent co-insured doctrine applies to a plaintiff's failure to submit to an EUO.
*779(recognizing that courts have enforced policies against innocent co-insureds when there is "fraud, concealment, or intentional acts" by any other insured).
Accordingly, this Court finds that the innocent co-insured doctrine is inapplicable to this issue. The issue before the Court is the failure of Niko and Samantha Durasevic to submit to EUOs-a condition precedent to receiving coverage. Failure to submit to an EUO is not an intentional wrongdoing or fraud, but a failure to fulfill a condition precedent to a contract. See Yeo v. State Farm Ins. Co. ,
Michigan courts follow the substantial performance rule, including in relation to insurance contracts. Under this rule, "[a] contract is substantially performed when all the essentials necessary to the full accomplishment of the purposes for which the thing contracted has been performed with such approximation that a party obtains substantially what is called for by the contract." Aleksov v. Auto Owners Ins. Co. , No. 338264,
Plaintiffs argue that whether there was substantial compliance is a question for the jury. Dkt. No. 28, pg. 3 (Pg. ID 427). However, the Michigan Court of Appeals decided in Aleksov that the plaintiffs did not substantially comply with the contract. Aleksov , No. 338264,
The Michigan Court of Appeals has held that failure to report a hit and run accident to the police within 24 hours-in violation of an insurance policy-still constituted substantial compliance. Camaj v. Home Owners Ins. Co. , No. 290664,
In this case, Defendant suspected that Plaintiffs' insurance claim may have been fraudulent. Dkt. No. 29, pg. 13 (Pg. ID 467). Defendant suspects that Niko Durasevic *780intentionally set fire to the house. Dkt. No. 5-2, pg. 9 (Pg. ID 95). Therefore, the EUO testimony of Niko Durasevic and potentially his wife, Samantha Durasevic, was significant to Defendant's investigation. Unlike the failure to fully comply in Camaj , the failure to comply in this case did prejudice the Defendant. Defendant was not able to fully investigate and discover the cause of the accident because of Niko and Samantha's failures to submit to EUOs. Therefore, this Court finds that although Plaintiffs submitted to EUOs, the failure of Niko and Samantha to submit to EUOs does not constitute substantial compliance with the conditions precedent of the insurance contract. This Court holds that Plaintiffs did not substantially comply with their insurance policy because not all insureds submitted to EUOs.
3. Argument Three
Third, Defendant argues that it is entitled to summary judgment because Plaintiffs' insurance policy requires insured persons to cooperate with Defendant's investigation and produce requested documentation. Dkt. No. 25, pg. 2 (Pg. ID 308). Defendant asserts that Plaintiffs breached the cooperation provision by failing to produce certain financial documentation that Defendant requested. Id.
Under Michigan law, courts have found information relating to the insureds' finances to be relevant to claims administration. Smith v. Mich. Basic Prop. Ins. Ass'n ,
The Michigan Court of Appeals held that questions of fact concerning substantial compliance precluded summary judgment in M.C.W., Incorporated. v. Hamilton Mutual Insurance Company. No. 233480,
Here, Defendant suspected that Plaintiffs' claim may have been fraudulent. Dkt. No. 29, pg. 13 (Pg. ID 467). Unlike the defendant in M.C.W. , Defendant clearly requested tax returns, bank statements, phone records, and Facebook archives from Plaintiff as a part of its investigation. Dkt. No. 25, pg. 12 (Pg. ID 318). Plaintiff Doka Durasevic, along with Plaintiff's lawyer, agreed to provide Defendant with the requested tax information during his EUO. Dkt. No. 25-4, pg. 6 (Pg. ID 411). Plaintiffs also signed authorizations for release of *781the requested information. Dkt. No. 24-8, pg. 2 (Pg. ID 306). However, Plaintiffs have not provided Defendant with the requested documents. Therefore, like this Court found in Musleh , this Court holds that Plaintiffs did not substantially comply with the insurance contract because they did not submit the requested documents to Defendant.
In conclusion, this Court holds that questions of material fact exist concerning the applicability of the vacancy exclusion. However, this Court finds that Plaintiffs failed to substantially comply with the provisions of the insurance policy contract. Due to Plaintiffs' failure to comply, Defendants are not liable to provide coverage for the second fire. Consequently, this Court will grant Defendant's Motion for Summary Judgment.
B. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs' Motion for Partial Summary Judgment requests that this Court enter summary judgment as to liability in its favor. Dkt. No. 24, pg. 14 (Pg. ID 193). Plaintiffs' Motion for Partial Summary Judgment also requests that this Court strike several of Defendant's affirmative defenses. See generally
V. CONCLUSION
For the reasons discussed herein, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiffs' Motion for Partial Summary Judgment.
SO ORDERED.
On October 25, 2016, Niko Durasevic was charged with second degree arson under M.C.L. § 750.73 in the 6th Judicial Circuit Court. Case number 2016-003873-FH. On September 28, 2016, the State dismissed this charge. The State also charged Mr. Durasevic with Felony Attempted Breaking and Entering Without Breaking With Intent under M.C.L. § 750.111(A). Niko pleaded guilty to Entering Without Breaking on September 28, 2017; the court sentenced him on November 15, 2017.
The State charged Niko Durasevic with second degree arson, but it later dismissed this charge. The Court also notes that Niko and Samantha Durasevic never submitted to EUOs, which could have provided Defendant with clear evidence that Niko started the fire. However, even if Niko and Samantha had submitted to EUOs, it is unclear whether their testimony would have proven that Niko started the fire intentionally. Therefore, this Court finds that questions of fact still preclude summary judgment on this issue.
At the motion hearing held on the parties' motions, Plaintiffs' attorney conceded that no case law besides Gordon holds that failure to submit to an EUO-if required by the insurance contract-does not preclude recovery.
Reference
- Full Case Name
- Hana DURASEVIC v. GRANGE INSURANCE COMPANY OF MICHIGAN
- Cited By
- 4 cases
- Status
- Published