Appeal from Wayne, Charles S. Farmer, J.
Bashara, P. J., and D. F. Walsh and W. S. White,* JJ.
1. Judgment -- Summary Judgment -- Issue of Material Fact.
A trial Judge must consider the affidavits, together with the pleadings, depositions, admissions and documentary evidence filed or submitted before he grants summary judgment on the ground that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law (GCR 1963, 117.3).
2. Insurance -- Existence of Policy -- Letter to Policyholder -- Mistake.
An insurance company which sends a transmittal letter recognizing the existence of an insurance policy must prove that the letter was sent by mistake and that no policy existed in order to avoid liability.
3. Insurance -- Existence of Coverage -- Letter to Policyholder -- Lessor's Interest -- Lessee's Interest.
An insurance company which had issued to a lessee of property a policy insuring the lessor's interest, but which had indicated that the lessee was the insured in a transmittal letter to the lessee with a renewal of the policy, was not liable for damages to the lessee's interest where it was shown (1) the policy itself indicated that the lessor was the insured with the billing to be made to the lessee, (2) the lessee maintained a separate policy covering its own interest with another insurance company, (3) the lessee had no intention of maintaining two policies covering its own interest, and (4) the transmitted letter was unquestionably in error.
The opinion of the court was delivered by: Bashara
Complaint by Detroit Bulk Dock Company against Michigan Mutual Liability Company for a declaratory judgment to determine whether defendant was the insurer of plaintiff's leasehold interest in certain property. Summary judgment for defendant. Plaintiff appeals.
This is a declaratory judgment action, GCR 1963, 521, seeking a determination of whether the defendant, Michigan Mutual Liability Company, was the insurer of the plaintiff, Detroit Bulk Dock Company, at the time a dock leased by the plaintiff collapsed. The defendant obtained summary judgment, GCR 1963, 117.2(3), and plaintiff appeals.
Dale Osburn, Inc. and the plaintiff are related corporations owned or controlled by Dale Osburn. For many years and until approximately January, 1965, Dale Osburn, Inc. and the plaintiff obtained numerous insurance policies through the R. J. Jones Insurance Agency with the defendant as insurer. One policy was for general liability insurance coverage of Dale Osburn, Inc. which was to run from February 1, 1964 through February 1, 1965.
Plaintiff entered into an agreement to lease property which included a dock from Danstan Realty Corporation around the beginning of 1964. The agreement provided that the plaintiff maintain liability insurance to protect the interest of the lessor. In order to comply with this provision of the contract the plaintiff obtained through the R. J. Jones Insurance Agency an Owners' Landlords' and Tenants' Liability policy [hereinafter referred to as "OLT" policy] from the defendant insuring the lessor's interest from 1964 through September 2, 1967.
In September, 1964 an endorsement was added to the General Liability policy of Dale Osburn, Inc. to cover the plaintiff's interest as a lessee in the ...