Michigan Court of Appeals; Docket #310947; Unpublished
Judges Sawyer, O’Connell, and K.F. Kelly; Unanimous; Per Curiam;
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Cancellation and Rescission of Insurance Policies
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals affirmed the trial court’s denial of plaintiff’s motion for directed verdict on the main issue in the case regarding whether defendant Auto Club was obligated to provide no-fault coverage to the injured plaintiff, given the timing of plaintiff issuing payment to activate the policy and when the subject motor vehicle accident occurred.
In this case, the plaintiff was injured in a motor vehicle accident that occurred at 11:00 a.m. on February 9, 2010. A jury trial took place to determine whether at the moment of the car accident, defendant Auto Club had received payment from plaintiff to activate coverage under defendant’s policy. The evidence plaintiff put forth to prove that defendant had received payment by the time of the accident consisted of a bank receipt showing payment from an account to defendant at 10:46 a.m. on February 9, 2010. However, defendant presented evidence that it did not receive payment from plaintiff until 11:02 a.m., i.e., two minutes after the subject motor vehicle accident. Furthermore, defendant’s employees testified that they denied the claim because the accident occurred before coverage began. Based upon this record, the trial court determined that a question of fact existed over the time of coverage and that reasonable jurors could differ on whether they believed plaintiff’s coverage started at 10:46 a.m. or at 11:02 a.m.
Without much discussion of the evidence presented at trial, the Court of Appeals affirmed the trial court’s denial of plaintiff’s motion for directed verdict, simply on the basis that it agreed with the trial court that under the standard for directed verdict, reasonable jurors could differ on whether coverage started at 10:46 a.m. or 11:02 a.m.
On appeal, plaintiff raised the issue of whether defendant is estopped from denying payment based on the doctrine of waiver. In this regard, plaintiff argued that by accepting his payment, defendant waived its defense that the policy was not active at the time of the accident. In rejecting this argument, the Court of Appeals noted that the case law plaintiff relied upon only applies to situations in which a person was seeking to extend coverage under an existing policy. In this case, plaintiff was purchasing a new policy from defendant. Furthermore, the court noted that defendant did not accept plaintiff’s payment with knowledge of the plaintiff’s motor vehicle accident. In this regard, the court stated in pertinent part:
“In this case, the doctrine of waiver is inapplicable. First, plaintiff did not make a payment for a premium that was past due that extended his policy beyond the lapse date. Roth, 290 Mich at 9-10. On February 9, defendant received payment for a new policy. Therefore, there is no past policy that defendant sought payment for that would bind defendant. Id. Second, payment was not accepted in a manner that induced plaintiff to believe his previous policy was still in effect. Id. Defendant’s salesperson wrote “a new policy” following the lapse in September and was required to hit a “get rate” button before finalizing payment. Plaintiff’s policy had been previously cancelled due to non-payment, and the salesperson called plaintiff each time such events took place to explain that his policy was cancelled. Therefore, defendant accepted plaintiff’s payment in a manner that made it clear that plaintiff was purchasing a new policy. Third, defendant did not accept plaintiff’s payment with knowledge of a loss. Glass, 168 Mich App at 670-671. Plaintiff filed his report of loss on February 15, and review of the claim began on February 19. Finally, plaintiff’s claim that defendant never rescinded the policy or refunded the premium is irrelevant because the doctrine of waiver is not applicable. Plaintiff’s estoppel claim is entirely without merit.”
