Michigan Court of Appeals; Docket No. 134674; Unpublished
Judges Hood, Connor, and Richard Kaufman; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Private Contract (Meaning and Intent)
In this unanimous per curiam Opinion, the Court of Appeals affirmed the trial court interpretation of a "drive other cars" exclusion which the trial court held precluded residual liability coverage under plaintiff’s personal automobile insurance policy where he was involved in an injury causing accident which occurred while he was operating his employer's uninsured truck.
The plaintiff was sued in a wrongful death action arising from a motor vehicle accident in which the plaintiff was, while in the course of his employment, driving an uninsured delivery truck owned by his employer. Auto Owners denied coverage based upon exclusionary language contained in a "drive other cars" exclusion which provided as follows:
"Coverage does not apply... to any automobile not of the private passenger type which is used in a business or occupation of the named insured, spouse, or relative, or to any private passenger automobile used in the business or occupation if operated by a person other than the named insured or spouse or the chauffeur or servant of such named insured or spouse, unless the named insured or spouse is present in such automobile..." (emphasis added)
Plaintiff argued that the above language did not exclude coverage, or at the very least was ambiguous and should be construed against the insurance company. Specifically, plaintiff contended that the conditional language "if operated by a person other than the named insured..." modified both portions of the exclusion describing the types of vehicles not covered under the policy, i.e., "any automobile not of the private passenger type" and "any private passenger automobile." Thus, plaintiff argued that since he was a named insured operating his employer's truck at the time of the accident, the exclusion did not apply.
The Court of Appeals, while acknowledging that the wording of the exclusionary provision could have been more clear, held that the language itself could only be interpreted to mean that coverage was excluded when the insured was operating an automobile not of the private passenger type which is used in a business or occupation of the named insured.
The Court of Appeals chose not to address plaintiff’s additional argument that portable, residual liability coverage is required under the no-fault act when the insured drives an uninsured vehicle. The court felt that this issue had not been timely raised and had not been ruled upon by the trial court, and therefore was not properly preserved for appeal.