Facts – Plaintiff was involved in a motor vehicle accident on November 10, 2001. The vehicle he was driving was insured with optional UIM coverage. The provision stated that "no claimant may bring a legal action against the company more than one year after the date of the accident". In June 2002, Plaintiffs notified the Defendant of their intent to pursue a UIM claim and submitted a letter from the other driver’s insurer, indicating they were offering to pay policy limits. In response, the Defendant requested additional information and forwarded forms to Plaintiff’s counsel. However, the requested information was not returned until December 12, 2002. The claim was denied due to the fact that the one year period for bringing the action had expired.

The Trial Court granted Defendant’s Motion for Summary Disposition and dismissed Plaintiff’s complaint in its entirety. Affirming the Trial Court, the Court of Appeals relied upon Rory v Continental Ins Co, 473 Mich 457 (2005), which concluded that judicial assessment of reasonableness is an invalid basis for refusing to enforce an unambiguous contractual limitations period. A contract provision is to be enforced unless it violates the law or public policy. The Court held that the provisions did not irreconcilably conflict with each other and therefore were unambiguous. Gillespie v Farm Bureau Mutual Ins Co, Unpublished Michigan Court of Appeals Decision, Dated July 27, 2006, Docket Number 268649.

Recommendation – As long as contractual provisions are not irreconcilably in conflict with each other, they will be enforced as written. A judicial assessment of reasonableness is an invalid basis for refusing to enforce contractual limitations, unless same violate law or public policy.

Facts – Plaintiff sustained injuries when he was struck from behind by a vehicle driven by an unidentified driver, causing injuries. Plaintiff sought Uninsured Motorist Benefits under a policy issued to his father. Under that policy, uninsured benefits were applicable to a pedestrian. Plaintiff relied on the fact that pedestrian was not defined within the policy and used a definition "person on foot rather than in a vehicle" which he argued would include a person using a bicycle. Defendant relied upon other definitions to clearly indicate a person riding a bicycle was not a pedestrian. The Trial Court entered an Order denying Defendant’s Motion for Summary Disposition and granting summary disposition in favor of Plaintiff.

The Court of Appeals in reversing the Trial Court, noted that uninsured motorist coverage is not mandated by the no-fault act. Therefore, the parties are free to contract as they see fit. The parties agreed that coverage depended upon the definition of pedestrian at the time of the accident. Unless otherwise defined, contractual language is given a plain and ordinary meaning. Plain and ordinary meaning of the term "pedestrian" as defined within Random House Webster’s College Dictionary is "a person who goes or travel’s on foot". Said definition clearly did not support Plaintiff’s and the Trial Court’s conclusions that a pedestrian included a person riding a bicycle.

As additional argument, Plaintiff asked the court to adopt Defendant’s definition of pedestrian in their Utah policy. However, the Court noted that Utah requires insurers to provide uninsured motorist coverage, unlike Michigan. Therefore, adoption of this definition would be improper. Cole v Auto Owners Ins Co, 272 Mich App 50 (2006).

Recommendation – Plain and ordinary meaning of an undefined term within an insurance policy will be used by the Courts. The ordinary meaning will not be expanded upon to include all definitions or a definition used by the insurer in a policy issued in another jurisdiction.

Facts – In an underlying action, the Personal Representative filed suit against Defendant Brown alleging that he was negligent when he fired a gun on property located at 59754 48^th Avenue. Brown was hunting on the property which his parents owned and insured under a home-owner’s policy issued by Plaintiff. Brown was not a named insured and his parents, the named insureds, established their primary residence in Illinois. Plaintiff filed a declaratory action, seeking a determination of whether it had a duty to defend and indemnify Brown in the underlying action. Plaintiff argued that Brown did not reside with his parents and was not a named insured. Trial Court denied Plaintiff’s motion and granted Defendant’s Motion for Summary Disposition. In reversing the Trial Court, the Court of Appeals relied upon the definition of insured which means:

        (a) you;

        (b) your relatives; and

        (c) any other person under the age of 21 residing with you 

             who is in your care or the care of a relative.

The insurer argued that Brown was not a named insured and that he did not reside with his parents. Defendants relied on the definition of "resident’s premises". However, the Court noted this definition appeared in the property coverage portion of the policy and not the personal liability protection section. Thus, living arrangements which existed at the time indicated Brown lived separately from his parents in another state and Brown was not an "insured" under the unambiguous terms of the insurance policy. Home-Owners Ins Co v Douglas Craig Brown, Michigan Court of Appeals Unpublished Decision Dated July 27, 2006, Docket Number 259233.

Recommendation – Whether a person is a covered insured under the policy requires a detailed reading of definitions within their corresponding section.

Facts – While Plaintiff was transporting hot asphalt with his dump truck, one of the hydraulic lines supporting the dump box blew, causing the dump box to crash down. Plaintiff then drove his truck home to repair the hydraulic line. After installing the new line, Plaintiff re-entered the truck to raise the dump box. He then stepped out to inspect the system when he noticed a fitting was leaking. He then knelt on the truck’s lift axle and attempted to tighten the fitting. While tightening, the fitting blew off causing the dump box to crash down, pinning Plaintiff’s right arm and elbow. As a result, Plaintiff’s arm was amputated. Defendant refused to pay PIP benefits.

The Trial Court granted Defendant’s Motion for Summary Disposition. Plaintiff argued that the hydraulic system was related to the transportational function of the vehicle because it was designed for transporting items in the dump box. Plaintiff relied on Drake v Citizens Ins Co, 270 Mich App 22 (2006). However, the Court of Appeals distinguished the facts of the case at bar from Drake. The Court noted that Plaintiff’s dump truck remained drivable and it was not being used as a dump truck when the injury occurred. The Court also concluded that Plaintiff was not maintaining the truck as a motor vehicle when the injury occurred, but was maintaining the hydraulic system, which was not related to the transportational purpose of the vehicle. Therefore, Plaintiff’s injuries did not arise out of the maintenance of a motor vehicle. Kennedy v Farm Bureau Mutual Ins Co of MI, Michigan Court of Appeals Unpublished Decision Dated August 3, 2006, Docket Number 268021.

Recommendation – When evaluating whether PIP benefits are owed when an individual is injured while maintaining a vehicle, care should be taken to determine whether the maintenance is necessary to drive the motor vehicle.

Facts – Plaintiff, an invitee, was traversing stairs located at the side of Defendant’s home. The steps were constructed of wood railroad ties with protruding metal poles designed to hold the stairs in place. Plaintiff slipped on the stairs and his foot caught one of the metal poles causing him to shift his weight and fall, breaking his leg.

In affirming the Trial Court, the Michigan Court of Appeals disagreed with Plaintiff’s assertion that he could not easily see the protruding pipe. In any event, the Court noted that Plaintiff in fact slipped on the wet wood which caused his foot to strike the pipe and cause his fall. The Court found the distinction important in the fact that the hidden danger was not the pipe that caused Plaintiff’s fall, but was the wet wood landscaped stairs. Although the pipe may have contributed to the extent of his injury, it was not the actual cause of his fall. Plaintiff slipped on the wet wood which he knew would be slippery. Lastly, somewhat steep and uneven stairs without a handrail do not present a substantial risk of death or injury. Jenkins v Patricia Miller, Michigan Court of Appeals Unpublished Decision Dated July 27, 2006, Docket Number 268237.

Recommendation – When reviewing an open and obvious condition, care should be taken to look at the condition which actually caused Plaintiff to slip and fall, and not any subsequent condition which may have contributed to the injury.

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