Oakland Circuit Court LC No. 2007-087059-CK.
The opinion of the court was delivered by: O'connell, J.
Before: TALBOT, P.J., and O'CONNELL and DAVIS, JJ.
Defendant Travelers Property Casualty Company of America (Travelers) appeals by leave granted from an August 27, 2008, order of the Oakland Circuit Court denying its motion for summary disposition. For slightly different reasons than those articulated by the trial court, we affirm the denial of the motion for summary disposition and remand this case back to the trial court for further proceedings consistent with this opinion. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On November 2, 2004, plaintiff Luann M. Dancey was involved in a single-vehicle accident after hitting a ladder lying in the roadway. In November 2007, plaintiff filed a complaint seeking uninsured motorist (UIM) benefits from defendant under a policy issued to Maryland Electric Company, Inc. (Maryland Electric). Defendant moved for summary disposition on two grounds: (1) plaintiff was not an "insured" as that term is defined by the policy for purposes of UIM coverage, and (2) there was no evidence that the accident in question was caused by the driver of an "uninsured motor vehicle." The trial court denied defendant's motion, ruling that the vehicle that plaintiff was driving at the time of the accident, a 2004 GMC Envoy, was covered by the policy and that there was at least a genuine issue of fact whether the driver of an uninsured vehicle caused the accident.
On appeal, defendant argues that an "insured" for purposes of UIM coverage is limited to anyone occupying a vehicle owned by Maryland Electric. Because Maryland Electric did not own or lease the Envoy, plaintiff was not entitled to coverage. Defendant also argues that based upon case law and the lower court record, no evidence exists that this accident was caused by the driver of an "uninsured motor vehicle."
We agree with the trial court that there exists a question of fact regarding whether this accident was caused by the driver of an "uninsured motor vehicle." However, while we disagree with the trial court that plaintiff has "conclusively" established that plaintiff is a named insured, we conclude that there exists a question of fact whether plaintiff is a named insured as that term is defined in defendant's policy. Therefore, for slightly different reasons, we affirm the decision of the trial court. We remand this case back to the trial court for further proceedings consistent with this opinion.
Plaintiff is the former wife of David Dancey; the couple divorced in August 2007. David was employed by Maryland Electric, a company that was owned by his parents and a third person. Defendant had issued a commercial automobile policy to Maryland Electric covering the 2004 calendar year.
The policy at issue covers eight private passenger vehicles and 48 trucks, but they are not individually identified by year, make, or model. Rather, covered autos are identified by a symbol corresponding to the type of coverage available. Specifically, "[t]he symbols entered next to a coverage on the Declarations designate the only 'autos' that are covered 'autos.'" The policy also contains a UIM endorsement, which provides in part:
We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle." The damages must result from "bodily injury" sustained by the "insured" caused by an "accident." The owner or driver's liability must result from the ownership, maintenance or use of the "uninsured motor vehicle."
Plaintiff had previously owned a GMC Yukon. In January 2004, David leased a 2004 GMC Envoy from the Pat Moran Oldsmobile dealership (the dealership) as a replacement vehicle for the Yukon. Plaintiff notified her insurance agent that the Yukon was being replaced with the Envoy. The lease that David signed with the dealership indicates that the Envoy was covered under defendant's policy. Plaintiff testified that Maryland Electric indirectly purchased vehicles for certain employees by giving them a monthly car allowance and that the employees, as well as their spouses, were covered under the company's insurance policy with defendant. She further testified that she was required to sign a written lease agreement with Maryland Electric under which the Envoy, which was titled in plaintiff's name, was leased to Maryland Electric, thereby bringing the car and herself under the umbrella of defendant's insurance policy. Plaintiff also produced a certificate of insurance that named both herself and Maryland Electric as insured parties under the policy issued by defendant. Plaintiff testified that "she was actually a named insured" because the certificate of insurance for the Envoy identified plaintiff as an insured.
After the trial court denied defendant's motion for summary disposition, and before this Court granted leave to appeal, the trial court allowed the parties to reopen discovery. The parties took the deposition of plaintiff's insurance agent, Rodney Grawel, who is the general manager of Valenti Trobec Chandler, the insurance agency that sold the policy to Maryland Electric. Grawel testified that Maryland Electric had insured plaintiff's Envoy under a policy that it had with Travelers. Grawel testified that in January 2004, he processed a change request with Travelers to remove the Yukon from the policy, add the Envoy to the policy, and add plaintiff as a named insured to the policy. He also testified that as part of the process of incorporating the Envoy into the insurance policy, Maryland Electric would have to acquire an insurable interest in the vehicle, which would be accomplished when plaintiff signed a leaseback agreement for the Envoy with Maryland Electric. No leaseback agreement between Maryland Electric and plaintiff was produced at the motion for summary disposition.*fn1
On November 2, 2004, plaintiff was driving the Envoy when she was involved in an accident at the interchange of I-696 and I-75 in Royal Oak. She entered eastbound I-696 at or near I-75 and gradually moved toward the far left lane. In this area I-696 rises far above I-75, and noise mitigation and retaining walls line the roadway on either side of the interchange. It is not an area that pedestrians or other non-vehicular traffic can enter. Access to the overpass, in essence, is limited to motor vehicles.
When plaintiff was in the center left lane or far left lane, she noticed a "huge steel construction ladder partially opened" angled across the entire lane. Plaintiff had not seen it earlier because her view was obstructed by another vehicle. Plaintiff "had a split second to make a decision do I try to run over or do I swerve." She opted to try to avoid the ladder and pulled sharply to the right, but was unable to avoid the ladder completely. Plaintiff lost control of the car, the "front left tire blew," and the car rolled over. The area where the accident occurred was not under construction and none of the evidence presented suggests how long the ladder had been in the road, how it came to be there, or who was responsible for leaving it there.
Plaintiff argues that because she is a named insured under defendant's policy and her vehicle is leased to Maryland Electric, both the vehicle and plaintiff are covered under the policy. Furthermore, she contends, since the ladder fell from another vehicle that could not be ...