Michigan Court of Appeals; Docket # 322738; Unpublished
Judges Markey, Owens, and Ronayne Krause; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Interpretation of Insurance Contracts
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held that a pizza delivery driver in an auto accident while delivering an order with his personal vehicle was not entitled to coverage from his no-fault insurer, because the policy included an exclusion for operating the vehicle while carrying property for a fee.
Defendant in this case, Conor Lewis, rear-ended a vehicle driven by defendant Michelle Wagner while delivering pizzas for Pizza Hut with his own vehicle, a Mazda. The Mazda was owned by Conor’s father and insured by plaintiff, Farm Bureau. Michelle and her husband (the Wagners) filed suit against Conor and his father, Greg Lewis, and Pizza Hut. Pursuant to his no-fault policy, Greg argued that Farm Bureau was obligated to defend had to defend and indemnity him. Farm Bureau brought this declaratory action, arguing it was not obligated to defend or indemnify anyone because Conor was delivering pizza at the time of the accident and the following exclusion in the policy applied:
“1. We do not provide Liability Coverage for any Insured: … f. for liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee. Reimbursement of reasonable mileage expenses incurred by the Insured is not considered a fee.”
Conor and Greg acknowledged that Conor was delivering pizzas at the time of the accident, but claimed the policy’s exclusion was ambiguous and inapplicable. After dismissing Pizza Hut from the case, Farm Bureau moved for summary disposition. The trial court ruled that Farm Bureau was not liable because the exclusion was not ambiguous and it was clear that Conor was delivering pizzas at the time of the accident.
On appeal, the Wagners made several claims: 1) the exclusion was ambiguous;
2) the exclusion did not apply because Conor was paid $1.50 for each delivery; 3) the exclusion did not apply to Conor because he was not licensed under the Motor Carrier Act and delivering pizza was “merely incidental” to Pizza Hut’s business; 4) the trial court erred in applying Amerisure Ins Co v Graff Chevrolet, Inc, 257 Mich App 585 (2003), to this case; and 5) the trial court erred in not applying Powers v Detroit Auto Inter-Ins Exch, 427 Mich 602 (1986).
Regarding whether the exclusion was ambiguous, the Court of Appeals held it was not, and that Farm Bureau was not obligated to provide coverage. In this regard, the court said the trial court correctly applied Graff and reasoned:
“We conclude that there is no material distinction between the provision in Graff and the provision at issue in this case. … Because plaintiff was carrying property for a fee at the time of the accident and because the policy excluded from coverage damage arising from a vehicle used to carry property for a fee, plaintiff cannot be held liable for the risk it did not assume. … Moreover, the exclusion is ‘clear, unambiguous and not in contravention of public policy;” consequently, it must be enforced as written.’”
Regarding the claim that the exclusion did not apply because Conor was reimbursed $1.50 for each delivery, the Court of Appeals rejected this argument and said:
“[T]he[] argument ignores the fact that Pizza Hut both reimbursed Conor for each pizza delivery and paid him an hourly wage. … The fact that Conor performed duties as an employee of Pizza Hut other than delivering pizzas does not negate the fact that he was paid a wage to deliver pizzas, and it did not render the exclusionary provision inapplicable.”
Regarding the argument that the exclusion did not apply because Conor was not licensed under the Motor Carrier Act and that transportation was “merely incidental” to Pizza Hut’s business, the Court of Appeals also rejected this claim and said:
“Although it is true that the MCA requires licensing in various circumstances …, we find no provision of the MCA suggesting that any aspect of it applies to these circumstances. … Because [the Wagners] cite no authority to the contrary, they have abandoned this argument. …To restate, because the exclusion is clear, unambiguous, and lawful, it must be enforced as written.”
Regarding the argument that the trial court erred in applying Graff to this case, the Court of Appeals said the distinctions between Graff and this case did not render Graff inapplicable.
Regarding the claim that the trial court erred by not applying Powers when construing the exclusion, the Court of Appeals said Powers was not precedential because a majority of justices did not sign the lead opinion.
In conclusion, the Court of Appeals rejected the Wagners’ catch-all argument that various cases supported their claim and held that none of the cases applied to this matter. The court said:
“[The Wagners’] arguments are merely repetitions of the arguments addressed already regarding the reimbursement clause and the MCA, both of which we have determined to be without merit.”
