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Meemic Insurance Co. v. Bischer

Court of Appeals of Michigan

February 13, 2018

MEEMIC INSURANCE COMPANY, Plaintiff-Appellant,
v.
BARBARA JANE BISCHER, Individually and as Next Friend of BAILEY JAMES BISCHER, a Minor, GARY DUANE BISCHER, and JACQUELINE G. BRAUN, Personal Representative of the ESTATE OF BRANDON MICHAEL DICKERT, Defendants-Appellees.

         Huron Circuit Court LC No. 16-105387-CK

          Before: Meter, P.J., and Sawyer and Shapiro, JJ.

          SAWYER, J.

         We are faced with the question whether an "insured premises" under a homeowner's policy includes property regularly used with permission, but not owned or resided in, by an insured where a definition of "insured premises" includes "any premises used" by an insured "in connection with" the insured's "residence premises." We conclude that it does not.

         The basic facts relevant to this appeal are not in dispute. Brandon Dickert was killed while riding on an all-terrain vehicle (ATV) operated by Bailey Bischer and owned by Bailey's parents, Barbara and Gary Bischer. Dickert's estate filed suit against the Bischers, alleging negligence. The Bischers were insured under a homeowners policy issued by plaintiff. Plaintiff filed this declaratory judgment action seeking a determination that it was not obligated to indemnify or defend the suit.

         At issue is the following exclusion under the policy, as well as the exception to the exclusion:

We do not cover:
* * *
6. bodily injury or property damage arising out of:
A. the ownership, maintenance, occupancy, use, renting, loaning, loading or unloading of any motorized land vehicle or trailer;
B. the entrustment by you of a motorized land vehicle to any person.

         This exclusion does not apply to:

A. a motorized land vehicle in dead storage or used exclusively on an insured premises;
B. any motorized land vehicle which is designed principally for recreational use off public roads, not subject to motor vehicle registration, licensing or permits, and owned by you, but only while the vehicle is on the insured premises. [Emphasis added.]

         It is not disputed that the ATV is a "motorized land vehicle" under the policy that is designed "for recreational use off the public roads". Thus, the exception under paragraph "B" above would apply if the ATV was being operated on the insured premises. That becomes the essential question in this case.

         The accident did not occur on the Bischers' property. Rather, Bailey and Brandon were riding on trails on a neighboring property. According to Gary Bisher's deposition testimony, the Bischers own 18 acres with a large wooded area. Trails wind through the property, as well as through the property of other neighbors. According to the deposition testimony, the residents routinely use the trails on each other's properties.[1] The accident occurred on the property of a neighbor located across the street from the Bischers' ...


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