This is a declaratory judgment action filed to determine the respective rights of parties under a contract of insurance. The plain *48 tiff, Cоntinental Casualty Company (hereafter "Continental”) appeals as of right from the entry of a summary judgment on the ground that there was no genuinе issue of a material fact, GCR 1963, 117.2(3).
The facts are largely undisputed by the parties. It is basically the legal effect of their conduct which is at issue here. Continental had issued an architects-engineers professional liability policy to Eneo Associates, Inc. (hereafter "Eneo”) providing liability coverage to Eneo for its "errors, omissions or negligent acts” which occurred during the policy period "if claim therefоr is ñrst made against the insured during this policy period”. (Emphasis supplied.) Coverage under the policy terminated on November 6, 1970.
In 1967 Eneo had entered into a construction contract with Sears, Roebuck and Company (hereafter "Sears”) to design parking garage ramps being constructed by Sears in White Plains, New York. In mid-1970 it became evident, at least to Sears and Eneo, that major structural repairs would become necessary due to extensive cracking in various parts of the structure. Photographs of the damaged areas were sent along with corrеspondence from Sears’ architect, Don Garrett, to Alvin Balmes of Eneo on two occasions during the spring of 1970. Then on June 26, 1970, Eneo sent one of its representatives, Himat Dagli, to New York to inspect the ramp structure along with Garrett. Dagli prepared a four-page rеport (also attached to Enco’s motion) verifying and detailing the structural damage to the ramps and suggesting possible solutions. This report wаs sent to Sears on October 2, 1970. In an affidavit filed with the motion for summary judgment Garrett indicated that he informed Eneo representative *49 Balmes by telephone — both during and after the Dagli inspection — that Sears intended to hold Enco responsible for the cost of repairs to the rаmp.
It was not until January 13, 1972, that Enco forwarded to Continental a letter which Sears had written on December 8, 1971, formally informing Enco that Sears intendеd to hold it responsible for the costs of repairs of the parking ramp structure. Continental thereupon advised Enco that there would bе no coverage, the claim not having been made during the policy period.
The Enco-Continental dispute is being litigated in the instant declаratory judgment action commenced by Continental, the central issue being whether the assertions made by Sears to Enco during the summer of 1970 constituted a "claim” against Enco within the terms of the insurance policy. Sears was named as a party defendant— along with Enco — as a potential third party beneficiary to the insurance contract. Meanwhile Continental has agreed — without waiver of any rights it may have under the рolicy — to defend Enco in a lawsuit Sears has filed against that company in the state of New York.
The propriety of a summary judgment granted undеr GCR 1963, 117.2(3), is determined from an examination of the pleadings, affidavits, depositions, admissions and documentary evidence presented to the trial court at the time of the motion hearing. The motion should not have been granted unless the record demonstrated that:
"(1) [A]ll facts essential tо the rendition of judgment on the claim or defense are not disputed by the parties; or (2) an essential element of proof of the clаim or defense cannot be supplied.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1975 Pocket *50 Part, p 94. Rizzo v Kretschmer,389 Mich 363 , 372;207 NW2d 316 (1973).
The essential facts in the instant case relate to the filing of a claim against Eneo during the policy period. Eneo has submitted affidavits in accordance with GCR 1963, 117.2(3) which refer to certain conversations and correspondence during the summer of 1970 between representatives of Sears and Eneo with regard to the structural damage to the parking facility. Continental submitted no counter-affidavits, and understandably so, since it had no knowledge of any structural problеms until January of 1972 when it first became aware of Sears’ intent to hold Eneo liable. It is apparent, therefore, that the essential facts wеre not disputed by the parties. Only the legal significance — with reference to the policy — of the 1970 conversations is at issue here. Resolution of that issue was properly determined by the court. Clearly there was no question of fact left for a jury to decide, and the trial judge was eminently correct in so ruling.
Continental next argues that the trial court erred in finding that the 1970 Sears-Enco communications constituted a claim within the terms of the policy. In deciding this it is elemental that the policy provision be construed "in accordance with the ordinary and popular sense of the language used, so as to avoid strained interpretations”.
Cora v Patterson,
Although stated differently in the briefs the final issue is really whether Continental can be precluded by the instant judgment from assеrting, in a subsequent action, any defense it failed to raise in this action. We hold that it cannot.
The procedure for obtaining declaratоry relief is determined by the General Court Rules. 1 GCR 1963, 203.1 requires the joinder of all claims arising "out of the transaction or occurrence that is the subject-matter of the action”. But the same rule also provides:
“Failure by motion or at the pretrial conference to object tо improper joinder of claims or to a failure to join claims required to be joined constitutes a waiver of the required joinder rules and the judgment shall not merge more than the claims actually litigated. (Emphasis supplied.)
In this case there was no objeсtion to Continental’s failure to join all defenses accruing to it under the insurance policy which is the subject matter of this action.
Plaintiff’s "laсk of notice” defense, for example, was not litigated in the trial court. The judgment, therefore, cannot merge that defense (or any other unlitigated defense) with the defense actually litigated. Nor can it preclude plaintiff from raising such defenses in a subsequent action. Insofar as it purports to do so, the judgment of the trial court is *52 reversed. In all other respects the trial court judgment is affirmed. 2
No costs, all parties having partially prevailed.
Notes
GCR 1963, 521.2.
Our ruling in this case is not to be undеrstood to support any construction of the trial court judgment which would require appellant to pay under its policy an amount in excess of its policy limits. We have not considered that contention in this opinion since appel-lees agree that no such construction could be upheld.