Michigan Court of Appeals; Docket No. 247428; Unpublished
Judges Jansen, Markey, and Gage; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable; Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Cancellation and Rescission of Insurance Policies
Consumer Protection Act (MCL 445.901, Et Seq.)
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals reversed a trial court determination that MEEMIC was entitled to rescind insurance coverage for plaintiff’s automobile based upon the insurance company’s contention that the insured had made “material misrepresentations regarding who would drive the vehicle.”
On January 31, 2000, plaintiff Kitterman spoke to her insurance agency and requested that a Malibu vehicle, titled in her name, be added to her insurance coverage. A “Policy Change Endorsement” form was mailed to the plaintiff for her review and signature. The form, under the heading “description and use of the vehicle to be insured” indicated that plaintiff was the owner and the “principal driver” of the vehicle. The form was signed and returned to the agency on February 15, 2000. Plaintiff always remained the owner of the vehicle.
In May or June, 2000, plaintiff began a relationship with Miller. Plaintiff testified that after she began her relationship with Miller, because they were together most of the time, Miller drove the Malibu “maybe 50% of the time.”
In reversing the trial court determination that these facts established a material representation as to who would be the principal driver of the vehicle, the Court of Appeals held that for there to be a misrepresentation entitling the insurance company to void the policy ab initio, the misrepresentation “must relate to an existing or past fact rather than a promise of future performance.” Here, when viewed in a light most favorable to the plaintiff, the evidence does not establish that plaintiff made a false statement of an existing or past fact in her application for insurance coverage for the Malibu. Plaintiff signed the Change Endorsement form on February 15, 2000. At that time, she had yet to commence her relationship with Miller. Further, her admission that Miller had driven the Malibu 50% of the time, when viewed in context, referred to the time frame that was months after the Malibu was added to the insurance policy. Plaintiff’s responses to the agency concerning who would be the principal driver were truthful at the time made. There was no evidence that plaintiff had made an intentional material misrepresentation of an existing or past fact with respect to the Malibu.
The Court of Appeals also rejected MEEMIC’s argument that the insurance contract’s “concealment or fraud” clause entitled recission of the contract. The policy states that it is void if an insured person has “intentionally concealed or misrepresented any material fact or circumstances relating to: (a) this insurance; (2) the Application for it; (c) or any claim made under it.” Here, there was little or no evidence of intentional concealment. The plaintiff’s contention that she did not know she was required to inform her insurer when her boyfriend moved into her home is reasonable.
Finally, the court held that the trial court had improperly dismissed plaintiff’s claim under the Michigan Consumers Protection Act, MCL 445.903(1). Although that Act was amended to remove actions rendered unlawful by the Chapter 20 of the Insurance Code from the purview of a private cause of action under the MCPA, effective March 28, 2001, in the instant case, the deceptive acts and practices all occurred before the effective date of the amendment. Because the defendant voided the policy ab initio, the court concluded that the MCPA cause of action arose before the amendment date of that statute on March 28, 2001.
