Michigan Court of Appeals; Docket #274260; Unpublished
Judges Cavanagh, Jansen, and Borrello; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Underinsured Motorist Benefits: Underinsured Motorist Coverage in General
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided without oral argument, the Court of Appeals affirmed summary disposition for defendant Progressive on plaintiff’s claim for underinsurance benefits, finding the plaintiff failed to comply with the terms of the no-fault insurance policy.
The plaintiff in this case was injured in a motor vehicle accident and filed a lawsuit against the person responsible for the accident. That person was insured by North Pointe Insurance Company under a policy that provided $20,000 in liability coverage. Plaintiff was insured under a no-fault policy with defendant Progressive which included underinsurance benefits in the amount of $100,000. In a letter dated June 23, 2005, plaintiff’s attorney notified Progressive that plaintiff had secured the policy limits in the underlying action and demanded the policy limits of plaintiff’s underinsurance motorist coverage. The letter further asked that Progressive contact plaintiff’s attorney within 21 days to discuss the matter. Just seven days later, on June 30, 2005, plaintiff executed a full and final release of all claims against the responsible person and North Pointe. Progressive then denied plaintiff’s claim for underinsurance motorist benefits based on a policy provision that voided coverage if recovery is made from the responsible person without Progressive’s written consent. Plaintiff then filed this action for breach of contract.
The trial court granted Progressive’s motion for summary disposition, finding that plaintiff failed to comply with the policy terms. On appeal, plaintiff claimed Progressive waived its rights under its policy by failing to respond to his request for written consent to execute the release. The Court of Appeals disagreed, reasoning that there was no language in the letter requesting such a release. Instead, the letter notified Progressive that plaintiff had secured the limits of the responsible person’s policy and set forth a demand for the policy limits of the underinsured motorist benefits coverage.
Furthermore, plaintiff closed the letter with a statement providing Progressive 21 days in which to contact plaintiff regarding the matter. Therefore, plaintiff failed to establish that defendant Progressive waived its right to consent to the settlement before the settlement was executed. In this regard, the court stated:
“Although plaintiff characterizes the June 23, 2005, letter as a request for authorization to enter into a release and settlement with North Pointe and Robinson, there is no language in the letter presenting such a request. Rather, the letter notified defendant that plaintiff had ‘secured’ the limits of Robinson’s policy, recited plaintiff’s injuries, and set forth a demand for the policy limits of the underinsured motorist benefits coverage. Defendant’s failure to respond to the letter cannot reasonably be construed as conduct expressing an intent to waive a right to enforce the provision requiring defendant’s consent to the settlement with Robinson. Furthermore, plaintiff closed the letter with the statement, ‘Please contact me with [sic] 21 days to discuss this matter.’ Plaintiff executed the settlement on June 30, 2005, only seven days later. Accordingly, plaintiff cannot establish that defendant waived its right to consent to the settlement before the settlement was executed.”
