Circuit Court LC No. 15-003573-CK
Before: O'Brien, P.J., and Jansen and Stephens, JJ.
appeals by leave granted an order granting partial summary
disposition in favor of plaintiff entered after the trial
court determined that defendant was contractually obligated
to defend plaintiff, a police officer for the City of Harper
Woods, in a federal civil rights action wherein plaintiff is
a named defendant. We reverse.
case arises from a federal lawsuit brought against plaintiff
and a number of other individually named police officers and
related defendants after the January, 2010 disappearance and
death of plaintiff's cousin, JoAnn Matouk Romain. On the
day of her disappearance, Romain allegedly drove from her
home in Grosse Pointe Woods to attend church services in
Grosse Pointe Farms. Romain never returned home, and her
vehicle was later found in the parking lot of her church,
across the street from the shore of Lake St. Clair. An
investigation by the Grosse Pointe Woods and Grosse Pointe
Farms police departments revealed some evidence that Romain
walked out onto the frozen lake and fell through the ice.
Although a search ensued, Romain's body was not found
until three months later. Romain's death was deemed a
suicide. However, members of Romain's family believe that
Romain was murdered, and that the Grosse Pointe Woods and
Grosse Pointe Farms police departments conspired to conceal
the crime. Romain's family members also believe that
plaintiff, who is Romain's cousin as well as a police
officer for Harper Woods, either murdered Romain or
participated in the cover-up conspiracy.
family, on behalf of Romain's estate, brought a complaint
against the city of Grosse Pointe Farms, the city of Grosse
Pointe Woods, 19 individual police officers, and an
individual identified as "Suspect One, " in the
Eastern District of Michigan. Although plaintiff was not
named in the original complaint, a second amended complaint
in the federal lawsuit names plaintiff "individually and
in his official capacity as a public safety officer for the
City of Harper Woods, " among the defendants, which
include all of the municipal and police defendants named in
the original complaint, as well as individuals identified as
"John Doe" and "Killer John Doe." As to
"all defendants, " the complaint alleges (1)
violation of Romain's civil rights under 42 USC §
1985 for conspiracy to deny Romain her equal protection of
the law by covering up her murder, and (2) violation of
Romain's civil rights under 42 USC § 1983 for
"state-created danger" in the defendants' acts
of informing Romain's killer that they would cover up the
murder and rule it a suicide. A third count, for violation of
Romain's civil rights under 42 USC § 1983 for
"failure to implement appropriate policies, customs, and
practices, " is labeled "as to all defendants,
" but clearly applies only to the city of Grosse Pointe
Woods and the city of Grosse Pointe Farms. The fourth count
is brought against 17 of the named defendants, including
plaintiff, and alleges violations of Romain's civil
rights under 42 USC § 1983 for wrongful death.
as a liability insurer, provides liability coverage for the
city of Grosse Pointe Woods and the city of Grosse Pointe
Farms. Pursuant to their municipal liability policies,
defendant agreed to provide a defense to the federal action
for the two municipalities and all of their police officers.
The city of Harper Woods, where plaintiff was employed at the
time of the alleged misconduct, also has a municipal
liability insurance policy (the Policy) with defendant.
However, defendant refused to provide for plaintiff's
defense in the federal action, asserting that the specific
allegations of misconduct against plaintiff fell outside
brought a complaint for declaratory judgment in the Macomb
Circuit Court, seeking to compel defendant to pay for his
defense in the federal court action. Defendant brought a
motion for summary disposition pursuant to MCR 2.116(C)(10),
arguing that coverage under the city of Harper Woods'
municipal liability policy only extends to a Harper Woods
employee for damages arising from conduct "within the
scope of their employment by or duties on behalf of, "
Harper Woods. The trial court denied defendant's motion
as premature because discovery had not yet closed. However,
less than a month later, plaintiff brought his own motion for
partial summary disposition, limited to the subject of
defendant's duty to defend, under MCR 2.116(C)(10). This
time, the trial court granted the motion, concluding that
"the Defendant has a contractual obligation to provide a
defense to Plaintiff for the Romain case pursuant to
the terms of the Defendant's subject insurance
appeal, defendant argues that the trial court erred when it
determined that defendant was contractually obligated to
provide plaintiff with a defense in the federal lawsuit under
the Policy because the misconduct alleged in the federal
complaint was not undertaken within the scope of
plaintiff's employment. We agree.
Court reviews de novo a trial court's decision on a
motion for summary disposition. Loweke v Ann Arbor
Ceiling & Partition Co, LLC, 489 Mich. 157, 162; 809
N.W.2d 553 (2011). "In reviewing a motion brought under
MCR 2.116(C)(10), we review the evidence submitted by the
parties in a light most favorable to the nonmoving party to
determine whether there is a genuine issue regarding any
material fact." Cuddington v United Health Servs,
Inc, 298 Mich.App. 264, 270; 826 N.W.2d 519 (2012).
Summary disposition is proper 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." West v Gen Motors Corp, 469 Mich. 177,
183; 665 N.W.2d 468 (2003). "Questions of law relative
to declaratory judgment actions are reviewed de novo, but the
trial court's decision to grant or deny declaratory
relief is reviewed for an abuse of discretion."
Pioneer State Mutual Ins Co v Dells, 301 Mich.App.
368, 376; 836 N.W.2d 257 (2013).
defendant is contractually obligated under the Policy to
defend or indemnify certain claims is a question of law that
requires interpretation of the insurance policy. American
Bumper & Mfg Co v Nat'l Union Fire Ins Co, 261
Mich.App. 367, 375; 683 N.W.2d 161 (2004). "[T]he proper
construction and application of an insurance policy presents
a question of law that is reviewed de novo." Pioneer
State Mutual Ins Co, 301 Mich.App. at 376-377.
"While the issue of whether the employee was acting
within the scope of his employment is generally for the trier
of fact, the issue may be decided as a matter of law where it
is clear that the employee was acting to accomplish some
purpose of his own." Bryant v Brannen, 180
Mich.App. 87, 98; 446 N.W.2d 847 (1989).
is well-established that an insurer has a duty to defend an
insured and that such duty is not limited to meritorious
suits and may even extend to actions which are groundless,
false, or fraudulent, so long as the allegations against the
insured even arguably come within the policy coverage."
Auto Club Group Ins Co v Burchell, 249 Mich.App.
468, 480-481; 642 N.W.2d 406 (2001) (quotation marks and
citation omitted). Additionally, "[a]n insurer has a
duty to defend, despite theories of liability asserted
against any insured which are not covered under the policy,
if there are any theories of recovery that fall within the
policy." Detroit Edison Co v Mich. Mut Ins Co,
102 Mich.App. 136, 142; 301 N.W.2d 832 (1980). "In a
case of doubt as to whether or not the complaint against the
insured alleges a liability of the insurer under the policy,
the doubt must be resolved in the insured's favor."
determining whether an insurer has a duty to defend its
insured, we are required to look at the language of the
insurance policy and construe its terms. Allstate Ins Co
v Fick, 226 Mich.App. 197, 201-202; 572 N.W.2d 265
(1997). An insurance policy's terms are given their
"commonly used meaning" if not defined in the
policy. Frankenmuth Mut Ins Co v Masters, 460 Mich.
105, 112; 595 N.W.2d 832 (1999). Unambiguous insurance policy
language must be enforced as written. Farm Bureau Mut Ins
Co v Nikkel, 460 Mich. 558, 570; 596 N.W.2d 915 (1999).
If the policy is ambiguous, it will be construed in favor of
the insured to require coverage. Royce v Citizens Ins
Co, 219 Mich.App. 537, 542-543, 557 N.W.2d 144 (1996).
are free to limit the scope of their liability by excluding
particular conduct from coverage. Auto Club Group Ins Co
v Daniel, 254 Mich.App. 1, 4; 658 N.W.2d 193 (2002). And
while "[e]xclusionary clauses in insurance policies are
strictly construed in favor of the insured, "
Century Surety Co v Charron, 230 Mich.App. 79, 83;
583 N.W.2d 486 (1998), "[c]overage under a policy is
lost if any exclusion in the policy applies to an
insured's particular claims, " id (emphasis
added). Clear and specific exclusions must be given effect
because an insurance company cannot be liable for a risk it
did not assume. Auto-Owners Ins Co v Churchman, 440
Mich. 560, 567; 489 N.W.2d 431 (1992).
of the parties contends that the language of the Policy is
ambiguous. Therefore, we will simply apply the policy
according to its terms. Notably, in the absence of any
ambiguity in the policy language, we need not construe the
policy against the insurer. Defendant's obligation to
defend an insured against wrongful acts is ...