333 N.W.2d 42 | Mich. Ct. App. | 1982
FRENCH
v.
AUTO-OWNERS INSURANCE COMPANY
Michigan Court of Appeals.
William L. Fisher, for plaintiffs.
Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Terrance M. Lynch and Michael L. Updike), for defendant Auto-Owners.
Before: M.F. CAVANAGH, P.J., and R.B. BURNS and CYNAR, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the entry of an order granting the motion for summary judgment filed by defendant Auto-Owners Insurance Company.
Where a plaintiff has failed to state a claim upon which relief may be granted, summary judgment is proper under GCR 1963, 117.2(1). Sowels v Laborers' Int'l Union of North America, 112 Mich. App. 616; 317 NW2d 195 (1981). A party against whom a claim is asserted may move for summary judgment in his favor at any time. GCR 1963, 117.1. In determining whether to grant summary judgment for failure to state a claim, the pleadings alone are considered. May v Leneair, 99 Mich App *290 209, 213; 297 NW2d 882 (1980); Todd v Biglow, 51 Mich. App. 346, 349; 214 NW2d 733 (1974), lv den 391 Mich. 816 (1974). Factual allegations contained in the complaint are taken as true, along with inferences or conclusions which may be fairly drawn from the facts alleged. McCallister v Sun Valley Pools, Inc, 100 Mich. App. 131, 135; 298 NW2d 687 (1980), lv den 411 Mich. 905 (1981).
In order to adequately state a claim of Auto-Owners' liability based on its negligent failure to inspect, plaintiffs had to establish that Auto-Owners had actually undertaken a duty to inspect. The law is clear that there is no general duty to inspect on the part of an insurer. Smith v Allendale Mutual Ins Co, 410 Mich. 685, 705; 303 NW2d 702 (1981). A duty may arise only where an exception has occurred, i.e., the parties have contracted for inspection or the insurer has voluntarily undertaken it for the insured's benefit. It was insufficient to baldly state that Auto-Owners had a duty to inspect. Plaintiffs were required to allege the facts which created Auto-Owners' duty because a duty does not exist and cannot be presumed unless Auto-Owners is acting under an exception to the general rule. Where no exception is alleged, plaintiffs cannot show that Auto-Owners had a duty to inspect. Merely stating that Auto-Owners had such a duty, without alleging the agreement or intent which alone can create such a duty, is insufficient to state a claim.[1] Where well-pleaded facts in plaintiffs' complaint fail as a matter of law to establish that Auto-Owners owed any duty to plaintiffs, summary judgment is appropriate. Lahti v Finnish Mutual Fire Ins Co, 76 Mich. App. 398, 400; 256 NW2d 610 (1977).
Affirmed.
NOTES
[1] Plaintiffs' alternative allegations that Auto-Owners had a duty to repair or a duty to warn plaintiff Kenneth French are totally meritless.
