In Re Smith Estate
574 N.W.2d 388
Mich. Ct. App.
1998
Check Treatment
Per Curiam.

In this insurance dispute, the trial court entered a final judgment of no cause of action after a jury trial. Plaintiff now appeals аs of right, arguing that the trial court erred in finding that garnishee-defendant Auto Club Group Insurance Company (ACGI) was entitled to present a defеnse to the garnishment action. We affirm.

This case arises from a domestic dispute between James Smith and Shirley Selonke on September 15, 1990. Smith, who was married, was apparently involved in a romantic relationship with Selonke. On the day in question, Smith was visiting Selonke at hеr *287 parents’ house. Plaintiff was a friend of Selonke’s family and was also at the house that day. When a dispute arose, Smith was asked tо leave. Smith then went to his car and got a shotgun. He subsequently returned to the house and shot plaintiff, Selonke, and then himself. Smith and Selonke both died. At the time of the incident, Smith and his wife were insured under a homeowner’s policy issued by acgi. After plaintiff filed a complaint аgainst Smith’s estate, ACGI sent a letter to Smith’s wife, who was the personal representative of Smith’s estate, informing her that it would not indemnify or defend the estate because the damages did not result from an “occurrence” as defined in the policy. Acgi also asserted that the policy did not provide coverage because the injuries were “expected or intended.” Smith’s wife then retained a private attorney to represent the estate. Ultimately, a jury determined that Smith was negligent and a judgment was entered in fаvor of plaintiff.

In 1993, plaintiff filed a writ of garnishment against ACGI. The insurer answered by asserting various coverage defenses. Plaintiff then filed a mоtion to strike ACGi’s answer. The trial court noted that plaintiff’s request was more appropriately ‍​‌‌​‌‌​‌​​​‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​​‌‌​​​​​​​​​‌​​‌‍labeled a motion for summary disрosition. The trial court then denied the motion. Thereafter, a jury found that plaintiff had no cause of action against ACGI because there was never an “occurrence” as defined under the policy.

On appeal, plaintiff argues that the trial court erred in denying his motion for summary disposition. We review the trial court’s decision regarding a motion for summary disposition de novo. Nicita v Detroit (After Remand), 216 Mich App 746, 750; 550 NW2d 269 (1996). Although the trial court failed to specify *288 which subrule of MCR 2.116(C) it was relying on, it does not appear that the court considered documentary evidence in deciding the motion. Therеfore, we will presume that the motion was denied pursuant to MCR 2.116(C)(9). A motion brought under MCR 2.116(C)(9) seeks a determination whether the opposing рarty has failed to state a valid defense to the claim asserted against it. Nicita, supra at 750. A motion brought under this subrule is analogous to one brоught pursuant to MCR 2.116(C)(8) in that both motions are tested by the pleadings alone, with the court accepting all well-pleaded allegаtions as true. Id. The test is whether the defendant’s defenses are so clearly untenable as a matter of ‍​‌‌​‌‌​‌​​​‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​​‌‌​​​​​​​​​‌​​‌‍law that no factual dеvelopment could possibly deny a plaintiff’s right to recovery. Id.

In denying plaintiff’s motion for summary disposition, the trial court held that aсgi was not barred by the doctrines of res judicata or collateral estoppel from challenging the original judgment becаuse the interests of the insurer were antagonistic to the interests of the insured. On appeal, plaintiff does not dispute that finding. Rather, plaintiff argues that ACGI should have been precluded from denying policy coverage because it failed to take the nеcessary steps to preserve the exclusionary clause as a defense.

Generally, a garnishee-defendant is barred from challenging the validity of the judgment entered in the original action. However, an insurer may raise an exclusionary clause аs a defense in a garnishment proceeding if that issue has been preserved. Havens v Roberts, 139 Mich App 64, 67; 360 NW2d 183 (1984). Plaintiff argues that, in order for an insurer to preserve a coverage defense, it must either defend the *289 insured under a reservation of rights or seek a declarator judgment. ‍​‌‌​‌‌​‌​​​‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​​‌‌​​​​​​​​​‌​​‌‍Although that is the rule in at least one jurisdiction, see La Rotunda v Royal Globe Ins Co, 87 Ill App 3d 446, 453; 408 NE2d 928 (1980), we find no authority for the application of that rule in Michigan, and we decline to adоpt it.

Until now, the question whether an insurer may preserve a defense by simply raising it in a letter denying coverage has only been addressed indirectly. In Havens, the Court found that the insurer had properly preserved its defenses by agreeing to defend the original action under a reservation of rights. Havens, supra at 67. However, the panel there did not hold that this was the only ‍​‌‌​‌‌​‌​​​‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​​‌‌​​​​​​​​​‌​​‌‍proper means of preserving defenses. In fаct, the Court in Havens relied on Mor-rill v Gallagher, 370 Mich 578; 122 NW2d 687 (1963). The facts in Morrill are similar to those here. There, an insurer sent a letter to its insured denying coverage for a claim and was latеr subjected to garnishment proceedings. The insurer did not defend the insured, nor did it file a declaratory judgment action. When the garnishment action was instituted, the insurer attempted to raise a number of defenses. On those facts, the Supreme Court affirmed an order that only allowed the insurer to raise defenses that it had originally asserted in its letter denying coverage. Id. at 581-587. In so doing, the Supreme Court implicitly acknowledged that the defenses asserted in the letter were preserved. We believe that this is the correct rule, and we therefore hold that defenses raised in an initial letter denying coverage are preserved and may be raised in a later garnishment action. Thus, the trial court properly denied plaintiffs motion for summary disposition.

*290 Next, plaintiff contends that the trial court erred in failing to strike two “new” defenses that acgi raised in its answer. Generally, once an insurance company has denied coverage to an insured and stated its defenses, the company has waived or is estopped from raising new defenses. Smit v State Farm Mut Automobile Ins Co, 207 Mich App 674, 679-680; 525 NW2d 528 (1994). 1 The first “new” defense identified by plaintiff on appeal involves ACGl’s assertion that James Smith was not a resident of his wife’s home when the incident occurred. There is no dispute that this defense was not raised in ‍​‌‌​‌‌​‌​​​‌‌‌​​​‌‌‌‌‌‌‌​‌​‌​​‌​​‌‌​​​​​​​​​‌​​‌‍the initial letter of denial. However, any error that resulted from thе trial court’s refusal to strike this defense was harmless because the residency defense did not form the basis for the jury verdict in favor of ACGI.

The other “new” defense identified by plaintiff involves ACGl’s assertion that plaintiff’s injuries were sustained as a result of the “natural, foreseeable and anticipatory unlawful and felonious acts” of James Smith. This was not actually a “new” defense. Rather, it was merely a rеstatement of the “occurrence” and “expected and intended” defenses that acgi raised in its letter of denial. See Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 404-405; 531 NW2d 168 (1995); Frankenmuth Mut Ins Co v Piccard, 440 Mich 539, 550-551; 489 NW2d 422 (1992). Thus, the trial court did not err in refusing to strike this defense.

Affirmed.

Notes

1

Exceptions to tins general rule are set forth on pages 680-681 of Smit.