HOME-OWNERS INSURANCE COMPANY, Plaintiff/Counter-Defendant-Appellee,
DOMINIC F. ANDRIACCHI, Defendant/Counter-Plaintiff-Appellant. HOME-OWNERS INSURANCE COMPANY, Plaintiff/Counter-Defendant-Appellant,
OMINIC F. ANDRIACCHI, Defendant/Counter-Plaintiff-Appellee.
Circuit Court LC No. 14-052954-CZ
Before: Sawyer, P.J., and Murray and Gleicher, JJ.
Docket No. 331260, defendant/counter-plaintiff Dominic F.
Andriacchi appeals as of right the circuit court order
granting plaintiff/counter-defendant Home-Owners Insurance
Company's motion for summary disposition under MCR
2.116(C)(10) in this declaratory judgment action regarding
whether Home-Owners had a duty to provide insurance coverage
for Andriacchi under a policy that excluded coverage for loss
caused by any "earth movement." In Docket No.
332457, Andriacchi appeals as of right a subsequent order
granting fees and costs to Home-Owners under MCR 2.625, while
in Docket No. 332640, Home-Owners appeals as of right, and
Andraicchi appeals by delayed leave granted, that same order
that also denied Andriacchi's motion to disqualify the
trial judge and determined it to be frivolous, but declined
to award Home-Owners sanctions under MCR 2.114 and MCL
600.2591. We affirm in part, vacate in part, and remand for
FACTS AND PROCEEDINGS
provided a "businessowners policy" of insurance to
Andriacchi with effective dates of June 1, 2013, through June
1, 2014. The policy covered risks of physical loss unless the
loss was "[e]xcluded in Section B., Exclusions" or
"[l]imited in Paragraph A.4., Limitations." On
March 1, 2014, Andriacchi sought coverage under the policy
for damages to his building that occurred after a major
street repair had taken place. A licensed professional
engineer retained by Home-Owners determined that
"[e]arth movement beneath the interior concrete floor
slab has resulted in the observed structural damage at the
subject law offices building." The preliminary
engineering report stated:
This earth movement resulted in the subsidence of supporting
soils and interior concrete floor slab. The perimeter
footings appear stable and undisturbed.
Supporting soils usually do not move and subside under older
structures; any subsidence usually appears shortly after
construction. However, a major infrastructure/street project
that required long periods of dewatering and construction
vibration was just completed per the insured. The interaction
of original site soil preparation, fill quality, placement,
and compaction under the interior concrete slab with recent
dewatering and construction activity combined to create the
recent earth movement event.
claim was denied pursuant to an exclusion to coverage in
Section B for "[a]ny earth movement." Home-Owners
thereafter sought a declaration that it owed no duty to cover
Andriacchi's losses because the losses were excluded
under the policy.
eventually filed a motion for summary disposition under MCR
2.116(C)(8), (C)(9), and (C)(10), arguing that the language
of the exclusion barring coverage for losses resulting from
"any earth movement" is clear and unambiguous and
fell squarely within the acknowledged operative facts of
Andriacchi's loss. Home-Owners sought summary disposition
on its declaratory judgment claim as well as on
Andriacchi's counterclaims, and requested costs and
attorney fees under MCR 2.114.
response, Andriacchi maintained that the earth movement
exclusion in the policy applied only to natural earth
movement, not to "man-made" earth movement. He
contended that the words "any earth movement" must
be read in context with those that surround them and,
therefore, the exclusion was limited in application to
natural phenomena; in the alternative, Andriacchi maintained
that the exclusion was subject to more than one reasonable
interpretation and was, therefore, ambiguous. Andriacchi
sought summary disposition under MCR 2.116(I)(2), and
requested damages in the amount of $92, 100 to repair his
damaged property, statutory interest, prejudgment interest,
and actual attorney fees and costs.
trial court held a hearing on the motion and, following the
parties' arguments, concluded that "[a]ny earth
movement means any earth movement. And I don't need Latin
rules of statutory construction to turn that into anything
else other than what it says." The trial court
thereafter entered an order granting Home-Owners's motion
for summary disposition on the basis "that [Home-Owners]
has no duty to provide coverage for [Andriacchi's]
losses" and dismissing Andriacchi's counterclaim.
thereafter filed a motion to disqualify the trial judge
"for ex parte communication and bias" as a result
of the court's reading of Home-Owners's reply brief
that he had apparently not received before the hearing, and
purported bias against him. The trial court denied the motion
to disqualify, stating:
I'm denying the motion for a disqualification. I'm
finding that the communication-so called communication or
reply brief, which was accompanied by a proof of service, and
not-Mr. Andriacchi is not objecting to the proceeding, and
gave a nine- or ten-minute argument without benefit of the
reply brief, and I'm not sure the reply brief would have
helped him because it didn't change anything about what
the plaintiff was arguing. So I'm finding that it was not
an ex parte communication.
. . . And the court rule has a 14-day window there for good
reason. Number one, I don't think I've shown any bias
or prejudice. Number two, as Mr. Smith pointed out, it's
disingenuous to wait until you get an adverse ruling on a
substantive motion, and then to raise all of these
prejudicial allegations, going back to when the case was
filed. But I allowed Mr. Andriacchi to make a record on all
of those perceived-he calls it scolding or evidence of
prejudice. I think he's made a sufficient record.
But to the extent that they go back more than 14 days from
the filing of his motion, they're denied for that reason.
They're also denied because I don't believe
they're prejudicial. I was trying to provide some
State Court Administrator assigned Judge Charles Goodman to
review the motion for disqualification. After a hearing,
Judge Goodman issued a detailed order affirming the denial of
the motion to disqualify the trial judge, finding that
"[t]he record before this Court shows no evidence of
favoritism, prejudice, bias or improper conduct on the part
of" the trial judge.
Andriacchi filed his claim of appeal, Home-Owners filed a
motion to tax attorney fees and costs under MCR 2.114, MCR
2.625, and MCL 600.2591, in the amount of $18, 694.43.
Home-Owners requested costs and fees under MCR 2.114 and MCL
600.2591, for Andriacchi having filed a frivolous defense,
counterclaim, and motion to disqualify, and costs under MCR
2.625, for prevailing on the motion for summary disposition.
In response, Andriacchi argued that his position was not
frivolous due to the lack of Michigan precedent, and that
Home-Owners was entitled at most to $20 in costs for the
summary disposition motion, and disputed the remainder of the
subsequent hearing, Home-Owners conceded that it was not
entitled to a $150 charge for statutory costs for proceeding
to trial, as there was no trial. The trial court then ruled:
I've never awarded costs-actual attorney fees. I . . .
came very close in this case, but I am not going to award
them. I . . . am, frankly, uncomfortable awarding fees to a
party defending my disqualification.
And with respect to attorney fees on the underlying claim, I
did grant a motion for summary disposition. I believe that
the law is clear, but that Mr. Andriacchi was making an
effort to establish Michigan precedent to the contrary on
that . . . policy language.
I'm . . . finding that the statutory costs [under MCR
2.625], Mr. Smith, of course, can be imposed.
trial judge clarified that Andriacchi's motion to
disqualify was frivolous pursuant to MCR 2.114 and MCL
600.2591, and then entered an order and judgment (1) denying
Home-Owners's motion "for violation of MCR 2.114 and
MCL 600.2591 regarding the defense of the coverage
issue" for reasons stated on the record, and (2) finding
the defense motion to disqualify the judge to be frivolous
pursuant to MCR 2.114 and MCL 600.2591, but declining to
award costs and attorney fees. A second order and judgment
was entered granting Home-Owners's motion to tax costs
pursuant to MCR 2.625, in the amount of
THE EXCLUSION APPLY ONLY TO NATURAL EARTH MOVEMENTS?
reasons explained below, we hold that the trial court
properly granted Home-Owners's motion for summary
disposition because the earth movement exclusion plainly
excluded coverage for loss caused by "any" earth
movement, and there is no material factual dispute that
Andriacchi's loss was caused by earth movement.
the trial court considered documentary evidence in granting
the motion for summary disposition, we review the trial
court's order as one granted pursuant to MCR
2.116(C)(10). See Cuddington v United Health Servs,
Inc, 298 Mich.App. 264, 270; 826 N.W.2d 519 (2012).
Summary disposition is appropriate under MCR 2.116(C)(10) if
"there is no genuine issue as to any material fact, and
the moving party is entitled to judgment . . . as a matter of
law." In conducting the de novo review, this Court
construes the affidavits, pleadings, depositions, admissions,
and other documentary evidence submitted by ...