Michigan Court of Appeals; Docket # 332786; Unpublished
Judges Shapiro, Gleicher and O’Brien; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving plaintiff’s claim for uninsured motorist benefits after a motorcycle accident, the Court of Appeals affirmed the trial court’s finding that plaintiff was not entitled to uninsured motorist coverage under his auto no-fault policy because 1) the policy did not cover the motorcycle and 2) plaintiff had collected the uninsured motorist limit on his separate motorcycle insurance policy.
Plaintiff had insurance policies with defendant-Progressive for both his motor vehicle and his motorcycle. Plaintiff was injured while riding his motorcycle, when he collided with an uninsured motorist. Progressive paid the policy limit under the motorcycle policy, but did not pay under the auto no-fault policy. Plaintiff filed this action, seeking uninsured motorist coverage under the auto no-fault policy. Subsequently, Progressive’s counsel wrote a letter to plaintiff and his counsel that uninsured motorist coverage was, indeed, available under the auto policy because he was not considered an “insured person” at the time of the motorcycle collision. Specifically, Progressive said plaintiff was not occupying an “auto” or a “covered auto” at the time of the collision. In the letter, Progressive also asserted that the motorcycle was not a “motor vehicle” as defined in the No-Fault Act. Progressive then filed a motion for summary disposition. While it continued to assert the motorcycle was not a “covered auto,” Progressive further argued that policy exclusion also applied. Specifically, Progressive claimed an exclusion applied that precluded coverage when the named insured was using or occupying a motor vehicle owned by him other than a covered auto (the “owned and undeclared motor vehicle exclusion”). Progressive conceded that, contrary to its assertion in the letter it had sent, the motorcycle was not a “motor vehicle” as defined in the No-Fault Act. However, Progressive maintained it was a motor vehicle for purposes of the uninsured motorist coverage under “the common sense and dictionary sense of the term.” Plaintiff responded with a motion for summary disposition, arguing the “mend the hold” doctrine precluded summary disposition for Progressive. According to plaintiff, Progressive initially denied the claim for one reason, but in its motion for summary disposition raised a new reason to deny coverage that contradicted the one that was previously asserted. The trial court granted summary disposition for Progressive, finding the motorcycle was not an “auto” under the policy definition and, therefore, plaintiff was not an “insured person” for purposes of uninsured motorist coverage.
Plaintiff filed a motion with the trial court for reconsideration. The trial court agreed with plaintiff that Progressive had changed its position as to whether the motorcycle was a motor vehicle, which created confusion as to what coverage was available to plaintiff. However, there was no ambiguity in the policy language, the trial court ruled, finding that under the dictionary definition, the motorcycle was a “motor vehicle” and, therefore, was excluded for uninsured motorist coverage under the auto no-fault policy.
The Court of Appeals affirmed, holding that plaintiff was not entitled to uninsured motorist coverage through the auto no-fault policy.
According to the Court, plaintiff asserted he was entitled to coverage because the provision in the auto policy was ambiguous, since Progressive’s agents and the trial court had initially construed the policy to exclude a motorcycle from the definition of motor vehicle, but later included it. To address this issue, the Court first examined the “mend the hold” doctrine and concluded that it did not prevent Progressive from changing its defense in this case.
In particular, the Court of Appeals noted that plaintiff filed suit before Progressive denied coverage. The Court also noted that when Progressive first opined that a motorcycle was not a motor vehicle, it was unnecessary to Progressive’s first defense that the motorcycle was not an “auto” as defined in its policy. Moreover, the Court said that plaintiff did not rely on the defenses stated in the initial letter to his detriment because he had already filed suit. Lastly, the Court found that preventing Progressive from raising the motor vehicle exclusion would force it to insure an event for which it collected no premium.
Accordingly, the Court of Appeals held the language in plaintiff’s auto no-fault policy was unambiguous and the motorcycle was clearly not covered. The Court said:
“The motorcycle was not ‘a covered auto’ because the policy defined ‘covered auto[s]’ as having at least four wheels. It also was not listed on the auto policy’s declarations page. The motorcycle was, however, a ‘motor vehicle’ subject to exclusion. The policy does not define ‘motor vehicle.’ The definition must be more inclusive that ‘auto’ defined in the policy or the drafter would have simply reused ‘auto’ in [the owned and undeclared motor vehicle exclusion]. . . . The Michigan Supreme Court has already found motorcycles to fall within the common-sense definition of ‘motor vehicle.’”
Accordingly, summary disposition for Progressive was affirmed.
