Schubiner v. New England Insurance, 207 Mich. App. 330

207 Mich. App. 330 | Mich. Ct. App. | 1994

207 Mich. App. 330 (1994)

SCHUBINER
v.
NEW ENGLAND INSURANCE COMPANY

Docket No. 156350.

Michigan Court of Appeals.

Submitted August 1, 1994, at Detroit. Decided September 16, 1994. Approved for publication October 28, 1994, at 9:00 A.M.

Sommers, Schwartz, Silver & Schwartz (by Leonard B. Schwartz and Patrick Burkett), for the Schubiners.

Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Hans H.J. Pijls), for New England Insurance Company.

Before: TAYLOR, P.J., and CONNOR and M.J. CALLAHAN,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from the trial court order that granted summary disposition to defendant New England Insurance Company and dissolved plaintiffs' writ of garnishment. We affirm.

In granting summary disposition to defendant New England, the trial court found that plaintiffs failed to show that the insured, defendant Perry T. Christy, had given formal written notice of claim to defendant New England as required under the contract. While the parties have briefed a number of other issues on appeal, this is the sole issue actually decided by the trial court, and so we limit our review to that issue. Alyas v Gillard, 180 Mich. App. 154, 159; 446 NW2d 610 (1989).

It is clear from the record that there was a written-notice provision in this "claims made" insurance policy. Plaintiffs presented no evidence that the required notice was made within either the 1984-85 or the 1985-86 policy period. Nor did plaintiffs present evidence indicating that there is a question of fact regarding whether notice was given as soon as "reasonably possible." Stine v Continental Casualty Co, 419 Mich. 89, 107; 349 NW2d 127 (1984). The trial court did not err in granting summary disposition on the facts presented. MCR 2.116(C)(10); Check Reporting Services, Inc v Michigan Nat'l Bank-Lansing, 191 Mich. App. 614, 621-622; 478 NW2d 893 (1991).

We decline to apply the general insurance principle that the insurer must show prejudice where it is claiming lack of notice. See Sherlock v Perry, 605 F Supp 1001 (ED Mich, 1985). That principle developed in the context of "occurrence" insurance policies. See Wendel v Swanberg, 384 Mich. 468; 185 NW2d 348 (1971). Given the facts of this case, and the clear discussion of "claims made" policies in Stine, supra, we see no basis for applying that principle here. See Pacific Employers Ins Co v Superior Court, 221 Cal App 3d 1348, 1357-1358; 270 Cal Rptr 779 (1990).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.