Michigan Court of Appeals; Docket #298539; Unpublished
Judges O’Connell, Murray, and Donofrio; unanimous: per curiam
Official Michigan Reporter Citation: Not Applicable, Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Underinsured Motorist Coverage – Exclusions From Underinsured Motorist Benefits
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals
affirmed the trial court’s Order granting summary disposition in favor of ACIA on the
issue of whether the plaintiff’s claim for underinsured motorist benefits was precluded
because the plaintiff settled his underlying liability claim against the defendant driver
without ACIA’s consent.
The plaintiff in this case was injured in a motor vehicle accident that occurred on
October 2, 2007. The plaintiff filed a lawsuit against the defendant driver and ultimately
settled with the defendant driver for his liability insurance limits of $20,000. The plaintiff
signed a release that released the defendant driver from all further liability. Following
the settlement, the plaintiff filed suit against ACIA seeking underinsured motorist
benefits. ACIA moved for summary disposition, arguing that plaintiff’s failure to notify
ACIA of his lawsuit and obtain ACIA’s consent to settle the lawsuit, precluded plaintiff
from recovering under the underinsured motorist policy.
In affirming the trial court, the Court of Appeals rejected the plaintiff’s argument that
the settlement consent provisions of the policy should not be enforced against plaintiff,
because he never received the endorsement which added the provisions to his policy.
The court agreed that under the “mailbox rule,” ACIA created a rebuttable presumption
that plaintiff received the endorsement that contained the settlement consent
amendment provisions. The court further noted the testimony of ACIA employees
which established the endorsement was sent to plaintiff prior to the subject motor
vehicle accident. The court ultimately concluded this evidence created the rebuttable
presumption that plaintiff received the endorsement and that plaintiff’s conclusory
statement that he did not receive the endorsement was insufficient to overcome that
presumption.
The court further rejected plaintiff’s argument that even if defendant ACIA sent him the
endorsement, the policy language of the pertinent provisions is unclear, ambiguous,
and contrary to public policy. In rejecting this argument, the court discussed the case
of Lee v Auto-Owners Ins Co, 218 Mich App 672 (1996), wherein the Court of Appeals
examined similar policy language applicable to an underinsured motorist policy and
found that the language was clear and unambiguous and did not contravene public
policy. Accordingly, the court applied Lee to this case and rejected plaintiff’s argument
regarding the ambiguity of the policy language and whether it contravened public policy.
