228 Mich. App. 84 | Mich. Ct. App. | 1998
Plaintiff appeals as of right from orders setting aside a default against garnishee defendant and granting garnishee defendant’s motion for summary disposition. We affirm.
This claim arises out of a garnishment action filed against garnishee defendant on the basis of a judgment entered against Bonnie Bohman, guardian ad litem of Kendra K. Frazier, a minor. The underlying litigation arose from an automobile accident that occurred on March 9, 1991. On September 15, 1992, plaintiff brought personal injury claims against the
Bohman accepted plaintiff’s offer to stipulate the entry of judgment, and judgment was entered against her on September 21, 1994. A request and writ of garnishment was entered by the court on December 12, 1994, for the amount of the judgment. The writ was served by mail on December 21, 1994, on garnishee defendant. An employee of garnishee defendant spoke with plaintiff’s counsel about the writ of garnishment. The parties now dispute whether an extension was given to garnishee defendant to respond to the writ. When garnishee defendant did not respond to the writ by January 17, 1995, plaintiff filed an application for default, which was granted. Garnishee defendant filed a motion to set aside the default on January 27, 1995. The trial court granted garnishee defendant’s motion and set aside the default. Subsequently, both garnishee defendant and plaintiff filed motions for summary disposition pursuant to MCR 2.116(C)(10). The trial court granted summary disposition for garnishee defendant.
Plaintiff argues that the trial court abused its discretion in setting aside the default against garnishee defendant. We disagree.
While the policy of this state generally favors the meritorious determination of issues and, therefore, encourages the setting aside of defaults, whether a default should be set aside is within the sound discretion of the trial court. We will not reverse on appeal absent a clear abuse of that discretion. Park v Ameri
Garnishee defendant argues that a reasonable excuse exists for its failure to timely respond to the writ of garnishment. We do not find a good reason for garnishee defendant’s negligence in not taking action to timely respond. Merely calling plaintiff’s counsel and “receiving the impression” that an implied extension for an unknown amount of time had been given, and not confirming the extension in writing, is inadequate. However, the mere existence of negligence does not preclude a finding of good cause. Komejan v Suburban Softball, Inc, 179 Mich App 41, 51; 445 NW2d 186 (1989). A showing of a meritorious defense and factual issues for trial can fulfill the “good cause” requirement because in some situations, allowing such a default to stand would result in manifest injustice. Park, supra at 67. We therefore must determine whether the garnishee defendant presented a meritorious defense.
Not surprisingly, plaintiff contends that garnishee defendant did not have a meritorious defense. Specifically, plaintiff argues that Frazier was covered for the
We do not provide Liability Coverage for any person: Using a vehicle without a reasonable belief that person is entitled to do so.
The critical issue here is whether Frazier had a “reasonable belief” that she was “entitled” to drive the Jencks’ automobile. Although it does not appear that this issue has been squarely addressed in a published Michigan decision,
Even viewing the facts in the light most favorable to plaintiff (i.e., assuming that Frazier had permission to drive the automobile), we find that rational minds would agree that Frazier, an underage, unlicensed, inexperienced driver, was not “entitled” to drive the automobile. She had only one of the grounds required to drive the automobile, permission. However, without a driver’s license, she did not have all the proper grounds that entitle one to drive a vehicle. Without a driver’s license she could not reasonably believe that she had met all the requirements necessary to entitle her to drive the Jencks’ automobile. See General Accident Fire & Life Assurance Corp, Ltd v Perry, 75 Md App 503, 523; 541 A2d 1340 (1988) (“From the language of the clause it is clear that coverage is excluded if the driver [a] knew he was not entitled to drive the vehicle, or [b] if he claimed he believed he was entitled to drive the vehicle, but was without reasonable grounds for such belief or claim.”); Omaha Property & Casualty Ins Co v Johnson, 866 SW2d 539
Moreover, clear and specific exclusions in an insurance policy should be given effect. Garnishee defendant cannot be held liable for a risk it did not assume. McGuirk Sand & Gravel v Meridian Mut Ins Co, 220 Mich App 347, 353; 559 NW2d 93 (1996). It would be unreasonable to find that garnishee defendant assumed the risk of an unlicensed underage driver being involved in an accident in a vehicle not specifically covered by the policy. It is also unlikely that Frazier’s father intended the insurance policy to cover his underage unlicensed daughter while driving an automobile not owned by a relative living in the same household. No evidence was presented that the intent of the parties was to cover this situation.
Accordingly, we hold that (1) the garnishee defendant presented a meritorious defense through the affidavit of the employee who handled the claim, (2) the trial court did not abuse its discretion in setting aside the default, and (3) the trial court properly granted garnishee defendant’s motion for summary disposition.
Affirmed.
We have reviewed Bronson Methodist Hosp v Forshee, 198 Mich App 617; 499 NW2d 423 (1993), which in relevant part addressed whether an injured minor was excluded from receiving personal protection insurance benefits “because he was using the vehicle and had no reasonable belief that he was entitled to use it.” (198 Mich App 622; emphasis added.) Despite the fact that the driver did not hold a driver’s license, the Court of Appeals found that his use was lawful under the exigent circumstances presented there. Cf. Priesman v Meridian Mut Ins Co, 441 Mich 60, 71; 490 NW2d 314 (1992) (although the case addresses primarily “lawfulness” of a minor’s joyride, Justice Griffin states in dissent, “[n]or would he have a reasonable belief that he was entitled to take and use his mother’s car, since he was not licensed and had never been allowed to use the car.”)