James v. Toder v. Progressive Michigan Insurance Company, 332786

On May 8, 2013 James Toder was injured when his motorcycle collided with an uninsured car; he obtained $20,000 UIM from his Progressive motorcycle policy after surgeries for his injuries.
Toder also owned a Ford van insured under a separate Progressive automobile policy containing $50,000 UIM coverage; he sought UIM benefits under that auto policy as well.
The auto policy defined “auto” as a land motor vehicle with at least four wheels and defined “covered auto” as vehicles listed on the declarations page (or temporary autos); the UIM insuring agreement required an "insured person" to be operating a covered auto.
The auto policy excluded UIM coverage for bodily injury “while using or occupying . . . a motor vehicle that is owned by or available for the regular use of you” unless it was a covered auto.
Progressive initially denied coverage in correspondence arguing a motorcycle is not an “auto” under the policy (and relied on statutory definitions), later shifted to arguing the motorcycle was a “motor vehicle” excluded by the (1)(b) exclusion; Toder invoked waiver/estoppel (mend-the-hold doctrine).
The circuit court granted Progressive summary disposition; the Court of Appeals affirmed, holding the policy exclusion applied because the motorcycle was a “motor vehicle” (not a covered auto) and estoppel/waiver did not require coverage where no premium was charged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Toder can recover UIM benefits under his auto policy after recovering motorcycle UIM	Toder: Progressive waived/estopped from raising the (1)(b) exclusion because its earlier denial relied on a different ground (motorcycle not an "auto").	Progressive: No overlap — motorcycle is not a "covered auto" under the auto policy; later reliance on exclusion (motorcycle = "motor vehicle") is a proper defense; no premium charged for motorcycle under auto policy.	Held: No UIM under auto policy. The motorcycle was a "motor vehicle" excluded by (1)(b) and estoppel/waiver does not create coverage where none was purchased.
Whether the policy language is ambiguous as to "auto" vs "motor vehicle"	Toder: Inconsistent positions by Progressive and the trial court create ambiguity.	Progressive: Policy language is clear; “auto” (≥4 wheels) differs from broader “motor vehicle.”	Held: No ambiguity; contract construed by plain language and ordinary meaning—"auto" and "motor vehicle" have different scopes.

Smith v. Grange Mut. Fire Ins. Co., 234 Mich. 119 (estoppel/waiver requires insurer to disclose defenses or be barred from asserting others)
Gividen v. Bristol West Ins. Co., 305 Mich. App. 639 (doctrine preventing insurer from changing coverage defenses applies in no-fault contexts but does not expand coverage beyond premiums)
Lee v. Evergreen Regency Coop., 151 Mich. App. 281 (limits on waiver/estoppel where enforcing them would require insurer to cover unpremised risks)
Bianchi v. Auto Club of Michigan, 437 Mich. 65 (motorcycle is a “motor vehicle” in common and statutory senses for exclusion analysis)
Klapp v. United Ins. Group Agency, Inc., 468 Mich. 459 (contractual ambiguity exists only when provisions irreconcilably conflict)
Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc., 267 Mich. App. 708 (contract language given ordinary and plain meaning; give effect to all terms)