Michigan Court of Appeals; Docket # 325811; Unpublished
Judges Kelly, Fort Hood, and Borrello; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Interpretation of Insurance Contracts
Uninsured Motorist Benefits
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Court of Appeals held that defendant insurer did not waive its right to assert the exclusionary clause in plaintiff’s policy as a defense. Because the exclusionary clause was unambiguous, plaintiff’s claim for benefits was properly denied, the court ruled.
While driving an antique 1969 Cadillac insured by defendant American Bankers Insurance Company, plaintiff was in an accident with an uninsured motorist. The ABIC policy provided uninsured motorist coverage with no exclusions. Plaintiff also owned other vehicles insured by defendant Farm Bureau under a policy that provided uninsured motorist coverage, but contained an exclusion that the coverage did not apply to “any person injured while occupying an auto owned by you or any family member, if the auto is not insured for [uninsured motorist coverage] by this policy.” Plaintiff’s damages to the 1969 Cadillac exceeded the coverage available under the ABIC policy, so plaintiff brought an action against Farm Bureau for coverage. Farm Bureau moved for summary disposition, claiming its policy did not provide coverage and that, even if uninsured motorist coverage applied, it was precluded by the policy’s exclusionary clause. The trial court denied Farm Bureau’s motion and ultimately entered a $50,000 judgment for plaintiff.
The Court of Appeals reversed, first rejecting plaintiff’s argument that Farm Bureau waived its right to assert the policy’s exclusionary clause as a defense because it did not raise it in its first responsive pleading.
The Court of Appeals then examined whether the exclusionary clause was unambiguous. The clause said:
“PART IV – UNINSURED MOTORIST COVERAGE
A. Insuring Agreement
1. If you pay a premium for Uninsured Motorist Coverage, we agree to pay compensatory damages which the insured is legally entitled to recover from the owner or operator of an uninsured automobile. The damages must result from bodily injury sustained by the insured caused by an accident. The owner’s or operator’s liability for these damages must arise from the ownership, operation, maintenance, or use of the uninsured automobile as an automobile.
…
D. Exclusions
This coverage does not apply to: …
2. any person injured while occupying an auto owned by you or any family member, if the auto is not insured for UMC [uninsured motorist coverage] by this policy; that uninsured motorist coverage does not apply to “any person injured while occupying an auto owned by you or any family member, if the auto is not insured for UMC by this policy.”
Based on this language, the Court of Appeals held the clause was clear and unambiguous. The court concluded:
“There is no dispute that plaintiff was injured while driving an automobile, the 1969 Cadillac, that was owned by plaintiff, but not insured for uninsured motorist benefits under defendant’s policy. Accordingly, defendant was not liable for any of the uninsured motorist benefits arising from the accident involving the 1969 Cadillac and the trial court erred as a matter of law in holding otherwise.”
