Michigan Court of Appeals Docket #297229; Unpublished
Judges Miter, Cavanagh, and Servitto; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Uninsured Motorist Benefits - Notice and Statute of Limitations for Uninsured Motorist Coverage
CASE SUMMARY:
In this per curiam opinion, the Court of Appeals affirmed the trial court’s order denying the defendant’s motions for summary disposition dismissing the case, but affirmed for reasons different from those expressed by the trial court.
The plaintiff in this case was injured in a motor vehicle accident that occurred on March 14, 2007. At the time, the plaintiff was covered under a policy of insurance issued by Farmers Insurance Exchange that provided coverage for no-fault benefits, liability, and uninsured motorist benefits.
This case involved the plaintiff’s claim for under-insured motorist benefits arising from the subject accident. Notably, the plaintiff’s claim for uninsured motorist benefits was based on the fact that the accident was caused by a hit-and-run driver. The plaintiff’s uninsured motorist policy contained a specific policy provision requiring that the plaintiff provide the defendant notice of his intent to pursue an uninsured motorist benefit claim based on an accident involving a hit-and-run driver.
The defendant filed a motion for summary disposition seeking to dismiss the plaintiff’s claim in its entirety, based on the fact that the plaintiff did not provide the defendant with written notice of his intent to pursue an uninsured motorist benefit claim within 30 days from the date of the accident.
In denying the defendant’s motion for summary disposition, the trial court determined that the policy did not require the plaintiff to file an uninsured motorist claim within any particular period of time. The Court of Appeals ultimately disagreed with the trial court’s analysis of the policy and found that the policy did require the plaintiff to notify defendant within 30 days “if a hit-and-run motorist is involved” and “an insured motorist claim is to be filed.”
The Court of Appeals then determined that while the plaintiff arguably did notify the defendant within 30 days that a hit-and-run motorist was involved, the plaintiff did not, within 30 days, indicate any intention to file an uninsured motorist claim. The court rejected the plaintiff’s argument that a question of fact was created whether he had informed the defendant of his intent to file an uninsured motorist claim within 30 days of the accident. In rejecting this argument, the Court noted that although the defendant had received correspondence that consisted of an application of benefits and a police report noting a hit-and-run driver, the defendant did not receive any correspondence from the plaintiff indicating his intent to pursue an uninsured motorist claim. In this regard, the court held:
“Plaintiff argues that correspondence sent to him by defendant nine days after the accident, on March 23, 2007, acknowledged a potential UIM claim. However, this argument is not supported by the correspondence. The correspondence confirmed receipt of plaintiff’s “claim” (apparently an initial phone call or other notice of injury predating submission of plaintiff’s application for no-fault benefits) and included information and an application directed solely at no-fault benefits. Plaintiff argues, nonetheless, that because defendant acknowledged plaitniff’s “claim” without specifying whether the claim was for no-fault benefits, UIM benefits, or both, a genuine issue of fact existed with regard to whether defendant was on notice that plaintiff would file a UIM claim. We disagree. Plaintiff does not actually allege that he informed defendant of his intent to file a UIM claim within 30 days of the accident. Moreover, defendant’s correspondence – which discusses only no-fault benefits and was sent before plaintiff submitted the police report noting a hit-and-run driver-alone provides no proof that defendant was aware of any such intent. Accordingly, we agree with defendant that there is no genuine issue of material fact with regard to whether plaintiff failed to notify defendant within 30 days of the accident that “an uninsured motorist claim [wa]s to be filed”; there is no evidence that plaintiff provided the timely notice.”
Even though the Court found that the plaintiff failed to notify the defendant of the hit-and-run accident within 30 days, the Court ultimately upheld the trial court’s denial of the defendant’s Motion for Summary Disposition on the grounds that based on the Court of Appeals’ recent published decision and DeFrain v. State Far, ___ Mich App ___ (2011), the defendant did not demonstrate that it suffered actual prejudice as a result of the plaintiff failing to notify the defendant of a hit-and-run accident within 30 days. In remanding the case, the Court of Appeals noted that there was a question of fact whether the defendant suffered actual prejudice as a result of the plaintiff’s failure to satisfy the notice provision. In this regard, the Court specifically held:
"The DeFrain Court concluded that the Koski prejudice requirement remains controlling with regard to notice provisions, also citing Bradley v. State Farm Mut Auto Ins Co, ___ Mich App ___; ___ NW2d ___ (Docket No. 292716, issued September 28, 2010). DeFrain, ___ Mich App at ___ (slip op at 3-4). In Bradley, this Court held that Koski “carved out a narrow prejudice requirement relative to all insurance contracts ….” Bradley, ___ Mich App at ___ (slip op at 3).
Here, although defendant nominally addressed the purpose of the notice requirement – to allow the insurer to locate and investigate the at-fault driver early in the process – at the hearing on its motion for summary disposition, defendant did not document actual prejudice in this case. Therefore, at a minimum, a genuine issue of fact remains with regard to this issue, and summary disposition in defendant’s favor is inappropriate."
