Michigan Court of Appeals; Docket #261083 and #261084; Unpublished
Judges White, Jansen, and Wilder; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits: Physical Contact Requirement
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld the trial court determination that by their participation in litigation concerning their entitlement to uninsured motorist benefits, the plaintiffs had not waived their entitlement to arbitrate their claims under the terms of the insurance policy.
Plaintiff Leclair and her passenger, Wolverton, were injured on July 21, 2002 in a motor vehicle accident when an unidentified vehicle caused the Leclair vehicle to go off of the road and roll over. Leclair claimed the unidentified vehicle negligently pulled in front of her, causing “physical contact with the vehicle she was occupying.” The Leclair vehicle was insured by a policy with Allstate Insurance which provided uninsured motorist coverage. The policy contained an arbitration provision which stated:
“If the insured person or we do not agree on that person’s right to receive any damages or the amount, then at the written request of the insured person the disagreement will be settled by arbitration.”
Before filing her complaint for declaratory judgment, breach of contract, and damages in circuit court, plaintiff Leclair demanded arbitration under the policy’s arbitration provision. Allstate refused Leclair’s pre-suit demand for arbitration on the basis there was a coverage issue because Allstate argued there was no evidence of required “physical contact” between the unidentified vehicle and the Leclair vehicle. After Leclair filed suit for declaratory judgment and damages on February 24, 2003, she again demanded arbitration and when Allstate filed a motion for summary disposition, Leclair for a third time demanded arbitration in her counter-motion to enforce the arbitration provision.
Wolverton, Leclair’s passenger, filed a separate lawsuit against Allstate on December 1, 2003, alleging serious and permanent injuries as a result of the accident. The Wolverton case was consolidated with the Leclair claim.
On appeal, the Court of Appeals addressed the issue of whether either of the two plaintiffs had waived their contractual right to arbitration by participating in the litigation process. In rejecting these arguments, the court noted Leclair had requested arbitration both pre-suit and twice following the filing of her lawsuit. Further, the court held Allstate had abandoned on appeal its previous position there was no coverage under the policy because of the absence of “physical contact.” The court rejected defendant’s arguments that by participating in the litigation process, Leclair had acted “inconsistently with her right to arbitration,” thus negating her entitlement to arbitrate her claim. The court held that cases relied upon by the defendant were distinguishable in that they did not involve insurance contracts and in neither case did the plaintiff demand arbitration before filing suit, nor did the plaintiffs in those cases demand arbitration again after filing suit.
With regard to the Wolverton claim, the defense argued a pre-suit demand for arbitration had not been made. However, Wolverton pointed out that the existence of the arbitration provision was not known until the policy of insurance was produced during discovery in the pending litigation. Thereafter, Wolverton requested arbitration. The court in examining the level of participation of Wolverton in the pending litigation, subsequent to receiving a copy of the insurance policy, concluded Wolverton had demanded arbitration in her response to defendant’s motion for summary disposition, and had not engaged in “extensive litigation between the time defendant produced the policy in discovery and when she requested arbitration.” Further, under the plain language of the insurance policy, Wolverton’s request for arbitration was within the three year limitations of the policy and, therefore, timely. Wolverton’s litigating during the months between acquiring a copy of the policy and her demand for arbitration was not inconsistent with her right to arbitrate so as to undermine the circuit court’s decision to permit Wolverton’s claim to proceed to arbitration.
