Defendant, Travelers Property Casualty Company of America (Travelers), appeals by leave granted an August 27, 2008, order of the Oakland Circuit Court denying its motion for summary disposition. For reasons slightly different from those articulated by the trial court, we affirm the denial of the motion for summary disposition and remand this case back to the trial court for further proceedings consistent with this opinion. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
I. OVERVIEW
On November 2, 2004, plaintiff, Luann M. Dancey, was involved in a single-vehicle accident after hitting a ladder lying in the roadway. In November 2007, plaintiff filed a complaint seeking uninsured motorist (UIM) benefits from defendant under a policy issued to Maryland Electric Company, Inc. (Maryland Electric). Defendant moved for summary disposition on two grounds: (1) plaintiff was not an “insured” as that term is defined by the policy for purposes of UIM coverage, and (2) there was no evidence that the accident in question was caused by the driver of an “uninsured motor vehicle.” The trial court denied defendant’s motion, ruling that the vehicle that plaintiff was driving at the time of the accident, a 2004 GMC Envoy, was covered by the policy and that there was at least a genuine issue of fact whether
On appeal, defendant argues that an “insured” for purposes of UIM coverage is limited to anyone occupying a vehicle owned by Maryland Electric. Because Maryland Electric did not own or lease the Envoy, plaintiff was not entitled to coverage. Defendant also argues that based upon caselaw and the lower court record, no evidence exists that this accident was caused by the driver of an “uninsured motor vehicle.”
We agree with the trial court that there exists a question of fact regarding whether this accident was caused by the driver of an “uninsured motor vehicle.” However, while we disagree with the trial court that plaintiff has “conclusively” established that plaintiff is a named insured, we conclude that there exists a question of fact whether plaintiff is a named insured as that term is defined in defendant’s policy. Therefore, for slightly different reasons, we affirm the decision of the trial court. We remand this case back to the trial court for further proceedings consistent with this opinion.
II. FACTS
A. THE INSURANCE POLICY
Plaintiff is the former wife of David Dancey; the couple divorced in August 2007. David was employed by Maryland Electric, a company that was owned by his parents and a third person. Defendant had issued a commercial automobile policy to Maryland Electric covering the 2004 calendar year.
The policy at issue covers eight private passenger vehicles and 48 trucks, but they are not individually identified by year, make, or model. Rather, covered vehicles are identified by a symbol corresponding to the type of coverage available. Specifically, “[t]he symbols entered next to a coverage on the Declarations designate the only ‘autos’ that are covered ‘autos.’ ” The policy also contains a UIM endorsement, which provides, in part:
We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle”. The damages must result from “bodily injury” sustained by the “insured” caused by an “accident”. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle”.
Plaintiff had рreviously owned a GMC Yukon. In January 2004, David leased a 2004 GMC Envoy from the Pat Moran Oldsmobile dealership (the dealership) as a replacement vehicle for the Yukon. Plaintiff notified her insurance agent that the Yukon was being replaced with the Envoy. The lease that David signed with the dealership indicates that the Envoy was covered under defendant’s policy. Plaintiff testified that Maryland Electric indirectly purchased vehicles for certain employees by giving them a monthly car allowance and that the employees, as well as their spouses, were covered under the company’s insurance policy with defendant. She farther testified that she was required to sign а written lease agreement with Maryland Electric under which the Envoy, which was titled in plaintiffs name, was leased to Maryland Electric, thereby bringing the car and herself under the umbrella of defendant’s insurance policy. Plaintiff also produced a certificate of insurance that named both herself and Maryland Electric as insured parties under the policy issued by defendant. Plaintiff testified that “she was actually a named insured” because the certificate of insurance for the Envoy identified plaintiff as an insured.
B. THE ACCIDENT
On November 2, 2004, plaintiff was driving the Envoy when she was involved in an accident at the interchange of 1-696 and 1-75 in Royal Oak. She entered eastbound 1-696 at or near 1-75 and gradually moved toward the far left of the four lanes. In this area 1-696 rises far above 1-75, and noise mitigation and retaining walls line the roadway on either side of the interchange. It is not an areа that pedestrians or other nonvehicular traffic can enter. Access to the overpass, in essence, is limited to motor vehicles.
When plaintiff was in the center left lane or the far left lane, she noticed a “huge steel construction ladder partially opened” angled across the entire lane. Plaintiff had not seen it earlier because her view was obstructed by another vehicle. Plaintiff “had a split second to make a decision do I try to run over or do I swerve.” She opted to try to avoid the ladder and pulled sharply to the right, but was unable to avoid the ladder completely. Plaintiff lost control of the car, the “front left tire blew,” and thе car rolled over. The area where the accident occurred was not under construction and none of the evidence presented suggests how long the ladder had been in the road, how it came to be there, or who was responsible for leaving it there.
Plaintiff argues that because she is a named insured under defendant’s policy and her vehicle is leased to Maryland Electric, both the vehicle and plaintiff are covered under the policy. Furthermore, she contends, because the ladder fell from another vehicle that could not be identified, this accident is covered under the UIM endorsement to the policy.
III. ANALYSIS
As we have previously stated, defendant moved for summary disposition on two grounds: (1) plaintiff was not an “insured” as that term is defined by the policy for purposes of UIM coverage,
a. standards of review and basic principles of insurance contract interpretation
We review the trial court’s ruling on a motion for summary disposition de novo. Gillie v Genesee Co Treasurer,
“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp,
“An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties.” Auto-Owners Ins Co v Churchman,
B. WHETHER PLAINTIFF IS AN INSURED
The UIM endorsement obligates defendant to pay those sums that an “insured” is entitled to recover from the owner or driver of an uninsured vehicle. Although
Anyone “occupying” a covered “auto” or a temporary substitute for a covered “auto”. The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.
For purposes of UIM coverage, a covered “auto”
OWNED “AUTOS” ONLY. Only those “autos” you own (and for Liability Coverage any “trailers” you don’t own while attached to power units you own). This includes those “autos” you acquire ownership of after the policy begins.
The term “you,” as defined in the policy, refers to “the Named Insured shown in the Declarations.” Thus, an “insured” for purposes of UIM coverage is a person who is occupying an auto owed by the named insured, i.e., Maryland Electric.
Defendant claims that because the Envoy occupied by plaintiff was owned by the dealership and leased to plaintiffs then-husband David, it was not owned by the named insured and was not covered by the UIM endorsement. Because plaintiff was not occupying a covered auto, she was not an insured for purposes of receiving UIM benefits.
Plaintiff did not specifically dispute defendant’s reading of the relevant policy terms. Rather, she noted that the policy included an endorsement for leased vehicles, that there existed a leaseback agreement, a certificate of insurance naming her as a named insured, and a policy change request that added the Envoy to the policy and named her as an additional insured. Therefore, plaintiff claimed, she qualified as an insured for the purpose of entitlement to UIM benefits. The crux of plaintiffs argument was that despite what the policy said, “she was actually a named insured” on the policy because her insurance agent had added both her and the Envoy to the policy.
At oral argument on the motion for summary disposition, defendant asserted that there was caselaw indicating that the insurance certificate was not controlling and submitted copies of the relevant cases to the court. Plaintiff responded that defendant had already paid her benefits under the policy and if defendant paid benefits, she must be an insured. The trial court ruled, in pertinent part, as follows:
The Court finds that the Envoy is a covered vehicle'under the policy. Under the policy, Maryland Electric is listed as the insured and the vehicle listed is the Envoy at issue, Plaintiffs Exhibit D.[4 ] Under section B-2 of the policy an insured includes anyone occupying a covered auto.
Here, Plaintiff was occupying a covered auto. Further, on the certificate of insurance issued by the State of Michigan for the Envoy at issue, the insuredsare listed as Maryland Electric Company and Luann Dancey, Plaintiff.
Now, counsel, you did provide me with two cases that say that an insurance certificate is not an insurance policy, but then you also bring up the fact that they’re covering her now under no fault.
[Defense counsel]: Your Honor, I don’t admit that. I don’t admit that. He brought that up today, and there’s no — I just — I can’t admit it on the record. I —
The Court: (Interposing) Okay. All right.
We conclude that the trial court erred by conclusively finding that the Envoy was a covered auto, thus making plaintiff an insured under the UIM endorsement. However, we also conclude that the trial court reached the right result with regard to its denial of summary disposition on this point, albeit for the wrong reasons. See Etefia v Credit Technologies, Inc,
C. WHETHER THE ACCIDENT WAS CAUSED BY THE DRIVER OF AN “UNINSURED MOTOR VEHICLE”
UIM benefits are only available if plaintiff was injured in an accident with the driver of an “uninsured motor vehicle” and that driver’s liability results from the ownership, maintenance, or use of the “uninsured motor vehicle.” An “uninsured motor vehicle” is defined, in part, to include any land motor vehicle, i.e., “auto,”
[t]hat is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit, or cause an object to hit, an “insurеd”, a covered “auto” or a vehicle an “insured” is “occupying”. If there is no direct physical contact with the hit-and-run vehicle, the facts of the “accident” must be corroborated by competent evidence, other than the testimony of any person having a claim under this or any similar insurance as the result of such “accident”.
Defendant claims that in order for the hit-and-run vehicle to “cause an object to hit” plaintiffs vehicle, there must be a physical nexus between the hit-and-run vehicle and the object. Defendant argues that because no one could affirmatively state that the ladder fell off another vehicle, only speculation would permit a jury to conclude that there was any nexus between the ladder and the hit-and-run vehicle, and speculation is insufficient to establish a genuine issue of fact. Plaintiff argues that there was no other logical explanation for how the ladder came to be in the roadway, given that the area was not under construction, was not open to pedestrian traffic, and was not beneath an overpass from which a ladder could have fallen. Further, the language used in defendant’s policy differs from that involved in the various cases cited by defendant. The trial court ruled, in pertinent part, as follows:
Now, as to the uninsured motorist claim, the Court finds that to recover under this endorsement there must be a causal connection, a substantial physical nexus between the hit and run vehicle and Plaintiffs vehicle for Plaintiff to recover.
And proof of a substantial connection with a disappearing vehicle, and in this case Plaintiff alleged that the ladder she hit must have dropped off another vehicle, is required for recovery under the uninsured motorist endorsement.
If there’s no direct physical contact with a hit and run vehicle, as in thiscase, the Plaintiff is required to show a connection between the ladder, the alleged disappearing vehicle, which must be corroborated by competent evidence.
Here, the Plaintiff hаs provided evidence whereby a jury could find it more likely than not that the ladder came from a disappearing vehicle, which is sufficient for Plaintiff to maintain her claim for uninsured motorist benefits under her policy.
In several cases, this Court has addressed issues regarding coverage of accidents in which an object was alleged to have come from an unidentified vehicle. In Kersten v Detroit Auto Inter-Ins Exch,
Recovery is permitted where the evidence discloses a direct causal connection between the hit-and-run vehicle and plaintiffs vehicle and which connection carries through to the plaintiffs vehicle by a continuous and contemporaneously transmitted force from the hit-and-run vehicle. For example, the intermediate vehicle cases [in which the hit-and-run driver strikes a vehicle, which is then propelled into the insured vehicle] are explained because there is evidence of a simultaneous causal connection. Similarly, in the propelled object cases ... , there is a direct causal connection by means of a continuous and contemporaneously transmitted force. Further, in such cases there is convincing evidence of a hit-and-run vehicle. But where a tire or a trunk or other piece of cargo lying on the highway is struck and, unlike the propelled stone cases, there is no clear testimony but only an inference of a contemporaneous and continuing propulsion of the object from a disappearing hit-and-run vehicle, recovery is denied. The chain of causation is stretched too thin and is too speculative. [Id. at 471-472.]
Given that, the Court held that the plaintiff was not entitled to UIM coverage because even though the facts permitted an inference that the tire came from a passing vehicle, they
[did] not show a clearly definable beginning and ending of a contemporaneously occurring chain of events. Nothing links the tire and rim with the hit-and-run vehicle except an inference drawnfrom the presence of a spinning tire and rim on the road. Both the intermediate vehicle cases and the propelled object cases require clearly definable or objective evidence (rather than inferential evidence) of a link between a disappearing vehiclе and plaintiffs vehicle. [Id. at 472 (emphasis omitted).]
In Adams v Zajac,
In Hill v Citizens Ins Co of America,
The Berry Court held that the presence of scrap metal in the trailer “at a time and location that was temporally and spatially proximate to plaintiffs striking a piece of metal in the road” was sufficient to establish “a substantial physical nexus between the hit-and-run vehicle and the object struck by plaintiff. ...” Id. at 350. Further, given the conflict between Kersten and Adams regarding the necessity of “ ‘a continuous and contemporaneously transmitted force from the hit-and-run vehicle’ ” to the insured vehicle, the Berry Court held that “the presence of a ‘continuous and contemporaneously transmitted force’ is a significant, but not dispositive, factor to be considered in indirect contact cases in determining whether the requisite substantial physical nexus has been established.” Id. at 350-351 (citation omittеd). Although there was no such evidence in the Berry case, there was testimony providing the “convincing and objective evidence of a hit-and-run vehicle in the absence of a continuous and contemporaneously transmitted force.” Id. at 351. The witness’s testimony “establishe[d] a continuous sequence of events with a clearly definable beginning and ending, resulting in plaintiffs coming into contact with the piece of metal.” Id.
The distinguishing feature between our case and cases like Berry, Hill, and Adams is that in those cases, there was objective and convincing evidence of another unidentified vehicle that could have been the source of the object that made contact with the insured vehicle. In Adams, there was a truck stopped in the same area of the road where the truck tire was located. In Hill, there was a camper-truck passing by at the same moment the rock was sent flying. In Berry, the only case that is binding on this Court, there was a truck hauling scrap metal just down the road from the accident site and a piece of scrap metal in the road at the accident site. This case is more like Kersten, in that there was an object in the road and circumstantial evidence that it could have come from a vehicle, but no objective evidence of any vehicle in the area that could have been the source of the object.
Plaintiff testified that she did not see the ladder fall off a vehicle. She testified that she saw a vehicle in front of her in the center left lane just before she came upon the ladder, but this vehicle blocked her view of the ladder and thus was not the source of the ladder. Plaintiff also stated that there might have been another vehicle
Defendant’s policy is somewhat different from those at issue in Kersten and Hill and from the statute at issue in Adams, because rather than requiring direct physical contact between an unidentified vehicle and the insured’s vehicle, it provides that coverage is available in two situations: (1) where there is vehicle-to-vehicle contact (direct physical contact); and (2) where the unidentified vehicle causes an object to hit the insured’s vehicle (indirect physical contact). It is undisputed that plaintiffs car was not hit by another car. Further, there was no evidеnce that another vehicle caused the ladder to hit plaintiffs car. Even if the phrase “cause an object to hit” was not limited to instances of a direct and immediate connection between the unidentified vehicle and the object, as in Hill, but could be interpreted to include instances of an indirect and intermediate connection between the unidentified vehicle and the object, as in Berry, there was still no evidence of another vehicle in the area that was carrying a ladder at or near the time of the accident.
If this were the only evidence presented below, we would reverse the order of the trial court. However, this cаse is factually distinguishable from the cases cited above. Plaintiff presented evidence of the location of the accident, which supports an inference that the ladder in question must have fallen off another vehicle. This accident occurred at the intersection of 1-696 and 1-75 in Royal Oak. In the location where the accident occurred, the freeway on which plaintiff was operating her vehicle, 1-696, rises high above another freeway, 1-75. Exhibit 1 of plaintiffs brief, which we reproduce here, depicts the area as follows:
[[Image here]]
Further, Berry, which is the only case that is binding on us, does not preclude us from considering the unique location of this accident in determining that a question of fact exists in this case. The Berry holding simply discussed a situation in which the Court determined that a “substantial physical nexus” was established by the proofs. See Berry,
Although some degree of speculation is necessary to determine exactly how this ladder arrived at its location, we conclude that, under the unique set of facts in this case, such speculation is permissible. In fact, we believe that such speculation does not surpass the level of speculation permitted by the Berry Court when finding that a reasonable juror could conclude that the metal found in the roadway had fallen from a truck thаt a witness saw in the vicinity of the accident approximately 15 minutes before the accident.
We affirm the denial of the motion for summary disposition and remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
We make no determination whether such a leaseback agreement exists and leave that decision to the fact-finder.
In particular, defendant argued that an “insured,” for purposes of UIM coverage, was limited to anyone occupying a vehicle owned by Maryland Electric. Because Maryland Electric did not own or lease the Envoy, plaintiff was not entitled to coverage.
Thе term “auto” refers to a motor vehicle. There is no dispute that the Envoy is an “auto.”
The exhibit referenced consisted of various pages of the policy. As previously noted, the policy did not describe any of the covered vehicles by year, make, or model, and the pages submitted by plaintiff do not do so either. They certainly do not refer specifically to the Envoy. In this regard, we find that a question of fact exists regarding whether the Envoy is listed as one of the eight private passenger vehicles covered by the policy.
Because Kersten was issued before November 1,1990, it is not binding on this Court. MCR 7.215(J)(1).
Because Adams was issued before November 1, 1990, it is also not binding on this Court. MCR 7.215(J)(1).
MCL 257.1112 is designed “to provide a remedy tо the victim of an unidentified hit-and-run driver.” Adams,
Because Hill was issued before November 1,1990, it is not binding on us. MCR 7.215(J)(1).
Panels of this Court have held, in unpublished cases, that absent evidence of an actual vehicle that is the source of the object in the road, a “substantial physical nexus” between the unidentified vehicle and the object struck is not established. See, e.g., Kerr v Citizens Ins Co of America, unpublished opinion per curiam of the Court of Appeals, issued January 22, 2008 (Docket No. 273319) (bale of hay in the road, no evidence of any vehicle seen in the area from which it could have fallen); Girodat v Auto Club Ins Ass’n, unpublished opinion per curiam of the Court of Appeals, issued March 4,1997 (Docket No. 194688) (tire lying in the road, no evidence of any vehicle seen in the area from which it could have fallen). Because these cases are unpublished, they are not binding on us.