Allegan Circuit Court LC No. 07-041581-NI.
Before: BECKERING, P.J., and WILDER and DAVIS, JJ.
In this declaratory judgment action involving an automobile liability insurance coverage dispute, defendant/counter-plaintiff Taber McComiskey, in his personal and representative capacities, appeals by leave granted from the circuit court's final judgment, and from its order denying his motion for summary disposition, and granting plaintiff/counter-defendant Progressive Michigan Insurance Company's (Progressive's) motion for summary disposition. We reverse.
In September 2006, a milk truck being driven by defendant Christopher Sneden rear-ended a vehicle being driven by Julie McComiskey, Taber McComiskey's wife. Taber and Julie McComiskey were injured, and Julie McComiskey's passenger, Taylen McComiskey, their son, was fatally injured. At the time of the accident, Sneden was driving the milk truck as part of his work for a milk hauling service.
The parties do not dispute that Sneden was at fault in the accident. The parties also agree that the milk truck weighed over 12,000 pounds, and that the car driven by Julie McComiskey weighed under 10,000 pounds. Progressive insured Sneden's personal vehicle at the time of the accident, including liability coverage.
Before Progressive filed this declaratory judgment action, Taber McComiskey filed an action against Sneden to recover for injuries to him and his wife, and for the death of their son (who was 16 months old when he was killed in the accident). In that personal injury action, the insurer of the owner of the vehicle (the milk hauling service) paid its policy limits.
The Progressive policy's relevant part is part I, covering "liability to others." Part I contains the insuring agreement, the heart of the liability insurance portion of the policy. The insuring agreement states:
[W]e will pay damages . . . for bodily injury and property damage for which an insured person becomes legally responsible because of an accident arising out of the:
1. ownership, maintenance, or use of a vehicle; or
2. use of any trailer while attached to a:
b. non-owned vehicle operated by an insured person. [Bolding of words defined in the policy omitted.]
While there is no dispute that Sneden is legally responsible to pay damages to the McComiskeys, Progressive asserts that Sneden is not an insured person under its policy with respect to this accident. Under the Progressive policy, an insured person includes, in relevant part: "you with respect to an accident arising out of the maintenance or use of any vehicle with the express or implied permission of the owner of the vehicle." (Bolding of words defined in the policy ...