Michigan Court of Appeals; Docket # 339075; Unpublished
Judges Murray, Servitto, and Boonstra per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous per curiam opinion, the Court of Appeals reversed the trial court’s dismissal of Plaintiff Jerry Paul’s (“Paul”) claim for uninsured motorist benefits from Defendant Farm Bureau Insurance Company of Michigan (“Farm Bureau”) based on the plain language of the no-fault contract. The Court of Appeals reversed the trial court because it found that the word “actual” in the phrase “actual physical contact” included indirect contact with another vehicle.
Jerry and his wife became involved in a multi-vehicle pileup in Indiana. Jerry exited the vehicle, while his wife remained inside. Another vehicle then struck Jerry’s vehicle causing Jerry’s vehicle to collide with him and cause serious injuries. The striking vehicle left the scene and it is unknown if the vehicle was insured. At the time of the accident, Jerry was insured by Farm Bureau with a plan that included uninsured motorist benefits. The plan had language that required a claimant to demonstrate that there was “actual physical contact” between the striking vehicle and the claimant. Farm Bureau refused to pay benefits because it argued that the physical contact occurred between Jerry and his own vehicle, not striking vehicle. Jerry brought an action to recover benefits and the trial court dismissed his action finding that “actual physical contact” required direct contact between the striking vehicle and the claimant. The trial court relied on McJimpson v Auto Club Ins Co, 315 Mich App 353; 889 NW2d 724 (2016) to determine that Jerry was ineligible.
The Court of Appeals reversed the trial court because it found that the word “actual” modified the phrase “actual physical contact” to include indirect contact. The Court first explained that auto insurance contracts are subject to contract principles and ambiguous language should be construed against the drafter. The Court next explained that while McJimpson, did find that a claimant was barred from uninsured benefits by the language of a no-fault contract, the language was different. The language at issue in that case was “direct physical contact” and the Court found that it modified the language “direct physical contact” to not include “indirect” contact. Here, the modifier is “actual,” which is a different word. The Court consulted the dictionary to find the definition of “actual” is: “active;” “existing in act and not merely potentially.” The Court therefore found that the modifier “actual” precluded potential physical contact, but it did not preclude indirect physical contact. Moreover, case law from Berry v State Farm Mut Auto Ins, 219 Mich App 340, 347; 556 NW2d 207 (1996), explained that contract language should be construed broadly for the physical contact requirement for indirect contact. Thus, the Court found that the modifier only restricted the policy from “potential” collision, not indirect collision and case law supported reading the policy broadly when possible.
“The word “actual” is not defined in the insurance policy. Therefore, this Court may consult a dictionary for the common definition. McNeel v Farm Bureau General Ins Co of Mich, 289 Mich App 76, 91; 795 NW2d 205 (2010). “Actual” is defined in Merriam-Webster’s Collegiate Dictionary (11th ed.) as “active;” “existing in act and not merely potentially;” and “existing or occurring at the time.” In other words, the physical contact must not have been merely “potential,” as when a hit-and-run vehicle causes a plaintiff to swerve, see Said, 152 Mich App at 242. This Court in Berry similarly used the phrase “actual physical contact” to distinguish situations in which a hit-and-run vehicle has made an impact from situations in which the hit-and-run vehicle did not make contact with anything. See Berry, 219 Mich App at 347”
Thus, the Court reversed the trial court because it found the language of the policy allowed Paul to recover for indirect contact.