Hensley v. Auto Club Grp. Ins. Co.

DANA HENSLEY, Plaintiff-Appellant, v. AUTO CLUB GROUP INSURANCE COMPANY, Defendant-Appellee.

No. 353205

Court of Appeals of Michigan

October 14, 2021

UNPUBLISHED

Wayne Circuit Court LC No. 19-003411-NI

Before: Swartzle, P.J., and Mark J. Cavanagh and Michael F Gadola, JJ.

PER CURIAM.

Plaintiff appeals as of right an order granting summary disposition in favor of defendant in this case regarding uninsured motorist (UM) benefits. We affirm.

I. FACTUAL BACKGROUND

This case arises out of a hit-and-run automobile accident that allegedly occurred on August 8, 2017 at about 3:15 or 3:30 p.m. At the time of the accident, plaintiff had UM insurance through an automobile insurance policy issued by defendant. The policy required UM claimants to make a written report of a hit-and-run accident to law enforcement within 24 hours of the accident. Plaintiff reported the accident to the Inkster Police Department. The police report lists the "Report Date/Time" as August 10, 2017 at 15:37 p.m. (3:37 p.m.) and the "Created Date/Time" as August 10, 2017 at 5:32 p.m.

Plaintiff filed a complaint on March 11, 2019, alleging that defendant was liable for UM benefits.^[1] On November 11, 2019, defendant filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that plaintiff was not entitled to UM benefits because he had failed to make a police report of the accident within 24 hours of its occurrence and failed to establish that the at-fault vehicle was uninsured-which were conditions precedent to UM coverage. Plaintiff did not file a response to defendant's motion for summary disposition. Plaintiff also did not appear for the motion hearing on December 13, 2019. The trial court noted that it had not received a response to defendant's motion and "given the fact of no response and no appearance today, the Court will grant [defendant's] motion." On December 30, 2019, plaintiff filed a motion for reconsideration arguing that he "made a signed written statement to the Inkster Police at 3:00 p.m. on August 9, 2017, within the first 24 hours following the accident as required by the insurance contract." Plaintiff attached the purported written statement to his motion. The trial court denied plaintiff's motion for reconsideration for lack of palpable error, and further noted that plaintiff's alleged written statement was unwitnessed and the date and time of its preparation could not be verified. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). Although defendant moved for summary disposition under both MCR 2.116(C)(8) and (C)(10), the trial court considered documents outside of the pleadings so we will consider the motion as granted under MCR 2.116(C)(10). See Spiek v Mich. Dep't of Transp, 456 Mich. 331, 338; 572 N.W.2d 201 (1998). A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) when the evidence, viewed in the light most favorable to the nonmoving party, shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003); Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). The moving party can satisfy its burden of showing there is no genuine issue of material fact by submitting evidence that negates an essential element of the nonmoving party's claim. Id. Once the moving party meets that burden, the burden shifts to the nonmoving party to submit evidence establishing that there is a genuine issue of material fact. Id. at 362-363.

In this case, plaintiff did not file a response to defendant's motion for summary disposition; accordingly, the motion was granted as unopposed. However, plaintiff filed a motion for reconsideration arguing that he did fulfill the reporting condition precedent, and thus, the trial court palpably erred. Plaintiff submitted his purported written statement made at the police department as an exhibit to his motion for reconsideration. Because plaintiff's argument was first raised in his motion for reconsideration after the trial court already granted defendant's motion for summary disposition, plaintiff's argument is unpreserved and our review is for plain error affecting substantial rights, i.e., error that was plain and affected the outcome of the proceedings. See Total Armored Car Serv, Inc v Dep't of Treasury, 325 Mich.App. 403, 412; 926 N.W.2d 276 (2018) (citation omitted); Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich.App. 513, 519; 773 N.W.2d 758 (2009).

III. LAW AND ANALYSIS

Plaintiff argues that the trial court erred in granting summary disposition because there is a genuine issue of fact whether plaintiff made a written report of the accident to law enforcement within 24 hours of the accident. We disagree.

UM benefits are "distinct from [PIP] benefits." Citizens Ins Co of America v Buck, 216 Mich.App. 217, 224; 548 N.W.2d 680 (1996). "Uninsured motorist insurance permits an injured motorist to obtain coverage from his or her own insurance company to the extent that a third-party claim would be permitted against the uninsured at-fault driver." Rory v Continental Ins Co, 473 Mich. 457, 465; 703 N.W.2d 23 (2005). However, UM benefits are optional and a matter of contract; they are not mandated by the no-fault act. Id. at 465-466. Thus, the language of the insurance policy "dictates under what conditions [UM] benefits will be provided." Auto-Owners Ins Co v Harvey, 219 Mich.App. 466, 470; 556 N.W.2d 517 (1996). As with other contracts, when the language of an insurance policy is clear and unambiguous, a court must enforce the policy as written. Farm Bureau Ins Co v TNT Equip, Inc, 328 Mich.App. 667, 672; 939 N.W.2d 738 (2019). This holds true for reporting provisions like the one at issue in this case. "[A]n unambiguous notice-of-claim provision setting forth a specified time within which notice must be provided is enforceable without a showing that the failure to comply with the provision prejudiced the insurer." DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 367-368; 817 N.W.2d 504 (2012).

In this case, the UM insurance policy states, in relevant part:

2. A person claiming Personal Protection Insurance or Uninsured Motorists or Underinsured Motorists Coverage must promptly:

* * *

d. give us a copy of any legal papers served in connection with any lawsuit started by you or your legal representative to recover damages for bodily injury against a person or organization who may be liable;

e. under Uninsured Motorists and Underinsured Motorists Coverages, make a written report of a hit-and-run accident within 24 hours to a law enforcement agency; allow us to inspect the car occupied

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