Home-Owners Insurance Company v. Dominic F Andriacchi
903 NW2d 197
| Mich. Ct. App. | 2017Background
- Home-Owners issued a businessowners (all-risk) policy to Dominic Andriacchi covering June 1, 2013–June 1, 2014; policy excluded loss caused by "any earth movement (other than sinkhole collapse), such as earthquake, landslide or earth sinking, rising or shifting."
- Andriacchi claimed building damage after nearby street/infrastructure work; Home-Owners’ engineer attributed the damage to earth movement caused by dewatering and construction vibration and denied coverage under the earth-movement exclusion.
- Home-Owners filed for declaratory judgment and summary disposition that it had no duty to cover; Andriacchi counterclaimed and argued the exclusion applied only to natural earth movement (or was ambiguous).
- Trial court granted Home-Owners’ MCR 2.116(C)(10) motion, concluding "any earth movement" is plain and unambiguous and excludes coverage regardless of natural or man-made cause; Andriacchi’s counterclaim was dismissed.
- Andriacchi moved to disqualify the trial judge (claiming ex parte communication and bias); the motion was denied, the denial was reviewed by an assigned judge who affirmed, and the trial court later found the disqualification motion frivolous but declined to award sanctions; Home-Owners was awarded statutory costs under MCR 2.625 (with one reporter fee later held improper).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the policy's "any earth movement" exclusion covers man-made as well as natural earth movement | The exclusion is plain and unambiguous; "any" means all earth movement, so losses from man-made causes are excluded | The phrase is ambiguous and should be limited to naturally occurring phenomena by ejusdem generis or context | Held for Home-Owners: "any earth movement" is unambiguous and covers both natural and man-made causes; ejusdem generis does not narrow because language is clear and "such as" gives examples, not limits. |
| Whether the undisputed facts establish the exclusion applies to this loss | Engineer’s report links subsidence and slab damage to earth movement from dewatering/construction; no material factual dispute | Andriacchi disputed causal scope but admitted engineer’s findings; argued interpretation/ambiguity created triable issue | Held for Home-Owners: no genuine issue of material fact; exclusion applies as a matter of law. |
| Whether Home-Owners could tax costs (expert fees, motion fees, reporter fees, statutory fees) under MCR 2.625 and MCL provisions | Prevailing party entitled to statutory costs including expert fees (MCL 600.2164) and motion fees (MCL 600.2529) and statutory filing/motion costs | Andriacchi argued limits (MCR 2.625(C) for trivial actions, MCL 600.2164 bars expert fees if expert did not testify, reporter fee for appeal transcript not taxable) | Held partly for Home-Owners: most statutory costs and expert fee taxable; MCR 2.625(C) inapplicable to declaratory action; court erred awarding reporter fee for transcript prepared for appeal—vacated that portion. |
| Whether the motion to disqualify was frivolous and whether sanctions were required under MCR 2.114/MCL 600.2591 | Home-Owners: disqualification motion frivolous and sanctions appropriate; sought taxation under MCR 2.114 and MCL 600.2591 | Andriacchi: motion not frivolous given unsettled law and asserted procedural concerns; contested mandatory sanctions and which rule/statute applied | Trial court found the motion frivolous under MCR 2.114 but declined to award sanctions; appellate court held the trial court erred by failing to impose mandatory sanctions if MCR 2.114 violation found and vacated the frivolousness finding for lack of articulated reasons—remanded for findings and appropriate sanction determination. |
Key Cases Cited
- Henderson v State Farm Fire & Cas. Co., 460 Mich 348 (Michigan Supreme Court) (courts interpret insurance contracts according to their plain language)
- Auto-Owners Ins. Co. v Churchman, 440 Mich 560 (Michigan Supreme Court) (exclusions are strictly construed in favor of insured but clear exclusions are enforced)
- Wilkie v Auto-Owners Ins. Co., 469 Mich 41 (Michigan Supreme Court) (respect freedom to contract; courts may not rewrite clear policy terms)
- McDonald v Farm Bureau Ins. Co., 480 Mich 191 (Michigan Supreme Court) (courts cannot rewrite an insurance contract that is clear)
- Ionia Ed. Ass’n v Ionia Pub. Sch., 311 Mich App 479 (Court of Appeals) (definition and ordinary meaning of "any")