Michigan Court of Appeals; Docket Nos. 118933 and 119006; Published
Judges Neff, Murphy, and Marilyn Kelly; Unanimous; Opinion by Judge Kelly
Official Michigan Reporter Citation: 191 Mich App18; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Cancellation and Rescission of Insurance Policies
Evidentiary Issues
CASE SUMMARY:
In this unanimous published Opinion by Judge Kelly, the Court of Appeals reversed the trial court in a case where erroneous instructions were given to the jury concerning the insured's burden of proof regarding receipt of a notice of cancellation of insurance coverage.
Plaintiff was injured in a motor vehicle accident while a passenger in an automobile owned and operated by her daughter. Plaintiff’s daughter had been insured by State Farm but when plaintiff commenced her action against her daughter for injuries received in the accident, State Farm contended that there was no coverage because the insurance on the vehicle had been canceled prior to the accident. In the declaratory judgment action, State Farm claimed that it had mailed a notice of cancellation for nonpayment of premiums on September 3, 1986. The daughter claimed that in early September she had received a balance due notice but not a cancellation notice. The issues at trial were whether the cancellation was mailed and whether it had been received by the insured. The jury concluded that State Farm had mailed the cancellation notice but could not decide whether the insured had received it. The court, however, found as a matter of law, that the notice had been received and entered judgment in favor of State Farm in reliance upon the presumption of receipt contained in MCLA 500.3020(4).
The Court of Appeals ruled that the trial court erred in its instruction that the insured had the burden of proof that the cancellation notice was received. The insured does not have the burden of proving that she did not receive the notice. Further, it is improper for the judge to instruct the jury regarding the presumption of receipt under MCLA 500.3020(4) once there has been sufficient evidence presented to rebut that presumption. Before giving jury instructions on the presumption, the judge must decide if sufficient evidence has been presented to rebut a presumed fact. If so, then, under MRE 301, the judge should not instruct the jury regarding the presumption, because it no longer exists. Therefore, instructing the jury on the presumption and advising the jury that the insured had the burden of proof regarding receipt of notice of cancellation were in error.
