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Ulrich v. Farm Bureau Insurance

April 29, 2010

LINDA A. ULRICH, PLAINTIFF-APPELLEE,
v.
FARM BUREAU INSURANCE, DEFENDANT-APPELLANT, AND LEN HENRY NAYLOR AND TORRON THOMAS JAMERSON, DEFENDANTS.



Washtenaw Circuit Court LC No. 07-743-NF.

The opinion of the court was delivered by: Saad, P.J.

FOR PUBLICATION

Before: SAAD, P.J., and HOEKSTRA and MURRAY, JJ.

Defendant Farm Bureau Insurance appeals the trial court's order that denied its motion for summary disposition. We reverse.

I. FACTS AND PROCEEDINGS

On December 16, 2005, the Office of Financial and Insurance Services*fn1 ("OFIS") issued a Notice and Order of Prohibition Pursuant to MCL 500.2236(5), Order No. 05-060-M ("Order No 05-060-M").*fn2 Order No 05-060-M was signed by Chief Deputy Insurance Commissioner Frances K. Wallace. Order No. 05-060-M disapproved no-fault automobile insurance forms that provided a contractual limitations period of less than three years for claims for uninsured motorist coverage. The issue presented here is whether a one-year limitations period for uninsured motorist coverage claims is enforceable where the no-fault policy form predated the issuance of Order No. 05-060-M, but the policy was renewed after December 16, 2005.

Plaintiff held a no-fault automobile insurance policy issued by defendant. The policy renewed every six months without any modifications of the terms of the policy. Plaintiff's policy had renewed on September 11, 2006, and was scheduled to expire on March 11, 2007. The accident that gave rise to this action occurred on September 19, 2006. The policy provided uninsured motorist coverage in the amount of $100,000 per person, $300,000 per accident, subject to this condition:

3. Time Limitation for Action Against Us

Any person seeking Uninsured Motorist Coverage must:

a. present the claim for compensatory damages in compliance with the Duties After an Accident or Loss listed on page 4 of this policy and all other terms and conditions of this coverage and the policy; and

b. present to us written notice of the claim for Uninsured Motorist Coverage within one year after the accident occurs.

A suit against us for Uninsured Motorist Coverage may not be commenced later than one year after the accident that caused the injuries being claimed, unless there has been full compliance with all the Duties After an Accident or Loss listed on page 4 of this policy and all other terms and conditions of this coverage and the policy.

Plaintiff's accident on September 19, 2006, involved defendant Len Henry Naylor, who drove an automobile owned by defendant Torron Thomas Jamerson. Plaintiff alleges that Naylor drove at more than 90 miles per hour when he rolled the vehicle and caused a multi-car collision that included the vehicle driven by plaintiff. Plaintiff sustained a fractured wrist and other injuries in this collision.

On July 16, 2007, plaintiff brought this action against defendant, Jamerson, and Naylor for damages recoverable under the no-fault act. The complaint made no claim for uninsured motorist benefits. Jamerson and Naylor failed to respond, and plaintiff entered a default against them. On January 8, 2008, plaintiff moved to amend her complaint to include claims against defendant for uninsured/underinsured coverage under the policy. She stated that she sought uninsured motorist coverage because defendants Naylor and Jamerson failed to respond to plaintiff's complaint and defaults had been entered.*fn3 Plaintiff sought monetary relief under a count for breach of contract, and also declaratory relief that defendant was contractually obligated to provide the coverage. Defendant opposed the motion on the ground that plaintiff failed to comply with the contract by failing to assert a claim for uninsured motorist benefits within the one-year ...


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