Fitch v. State Farm Fire & Casualty Co.Fitch v. State Farm Fire & Casualty Co.
Plаintiff, Joyce Fitch, appeals as of right from a grant of summary disposition in favor of defendant, State Farm Fire and Casualty Company. MCR 2.116(C)(10). This is a
i
In December, 1992, plaintiff was served with a lawsuit which alleged that she had defamed and intentionally inflicted emotional harm upon William Froling. It also alleged that, аs the result of public comments plaintiff made about him, Froling suffered economic loss, business loss, loss of potential business and business opportunity.
Plaintiff sought insurance coverage and defense of the lawsuit from defendant under her homeowners’ insurance policy. Defendant denied her claim. Plaintiff commenced a declaratory judgment action to determine whether defendant had a duty to defend her. Defendant filed a motion for summary disposition. The judge granted the motion. He concluded that thе language of the policy did not require coverage for economic loss or injury to reputation, humiliation or the other injuries Froling had alleged.
On appeal, plaintiff asserts that the trial court erred in concluding that the injuries claimed in the underlying suit were not covered by her homeowners’ policy. We disagree.
ii
A
We review de novo a grant of summary disposition madе under MCR 2.116(0(10).
Borman v State Farm Fire & Casualty Co,
B
Whether an insurance carrier has a duty to defend its insured in an underlying tort action depends upon the allegations in the complaint.
State Farm Fire & Casualty Co v Basham,
An insurance contract is clear if it fairly admits of but one interрretation.
Stark,
p 182. A clear contract which does not contravene public policy will be enforced as written, evеn if inartfully or clumsily worded.
Bianchi v Automobile Club of Michigan,
Contractual language is to be given its ordinary and plain meaning. Technical and strained constructions should be avoided.
Bianchi,
p 71, n 1. Terms are to be given their commonly used meanings unless clearly defined in the policy. Omitting the definition of a wоrd which has a common usage does not create ambiguity.
Group Ins Co of
c
Plaintiffs policy provided for coverage оf "bodily injury.” It states:
"[B]odily injury” means physical injury, sickness, or disease to a person. This includes required care, loss of services and dеath resulting therefrom.
Bodily injury does not include:
c. emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physiсal injury to some person.
Under Michigan law, when mental injury is alleged, at least some physical manifestation of the injury is required in order to bring it within the definition of "bodily injury.”
Greenman v Michigan Mutual Ins Co,
Furthermore, in addition to the definition of "physical injury” set out above, plaintiffs policy specifically states under a heading entitled "Reductions or Eliminations of Coverage”:
The definition of bodily injury has been revised tо exclude emotional and mental disorder or disturbance unless it arises out of actual physical injury.
Consequently, both because of the plain language of plaintiffs policy and Froling’s claimed injuries, plaintiff cannot claim coverage for thе emotional injuries and injuries to reputation in Froling’s complaint. They are apparently without physical manifestation or injury and, most importantly, did not stem from an actual physical injury.
D
Plaintiffs policy also provides coverage for "property damage.” The policy states:
"[Property damage” means physical damage to or destruction of tangible property, including loss of use of this property. Theft or conversion of property by an insured is not property damage.
Plaintiff argues that Froling’s claimed economic damages are a form of "property damage” which falls within this definition and gives rise to а duty to defend and indemnify her. Defendant counters that the policy’s definition of "property damage” refers only to physical damage to or destruction of tangible property. The policy also provides for loss of use of the propеrty. Defendant asserts that, under this definition, the economic and business losses Froling alleges are not "physical damage to оr destruction of tangible property” and do not give rise to a duty to defend or indemnify plaintiff.
Michigan appellate cоurts have not yet considered the parameters of "property damage” and the meaning of "tangible property” as defined here.
Other jurisdictions, notably California, have con
Whilе the opinions are instructive, it is unnecessary to look to other jurisdictions or to adopt their definitions of "property dаmage.” Froling did not allege, and the record does not support, a claim that his tangible property was damaged or destroyed as a result of plaintiffs statements. Moreover, the damages Froling claims do not stem from physical damage to оr destruction of tangible property. The insurance policy language under scrutiny here is concrete and specifiс. It is too narrow to encompass Froling’s claimed economic and business losses under the aegis of "property damаge.” Defendant did not have a duty to defend and indemnify plaintiff in the underlying suit.
Because the claimed injuries were not covered by the policy, we need not decide if the cause of the injuries requires coverage under the policy. State Farm v Basham, supra, p 242.
Affirmed.