*1 Stanke v State Farm Ins 307 STANKE STATE FARM MUTUAL AUTOMOBILE INSURANCE v
COMPANY 2, 1993, February Rapids. Docket No. 136837. Submitted at Grand 22, 1993, Decided June at 9:25 a.m. brought Stanke Richard action in the Osceola Circuit Court against Company, State Farm Mutual Automobile Insurance seeking payment judgment damages aof that the separate against Roy Clothiér, obtained in a action the defen- alleged injured dant’s The insured. was in an automo- passenger bile accident while a in a Chevrolet Camaro driven Roy Clothier, allegedly belonged Roy Clothier. vehicle The apparently but title had not heen transferred to him or previously either the three individuals to whom the vehicle registered had been transferred since its last owner. The defen- Roy underlying dant had declined defend Clothier in the action, maintaining coverage owed no to him under the issue, policy Clothier, insurance which was issued to John father, Roy’s covering Chrysler. initially The defendant coverage claimed no was owed to because he was not and, parents’ therefore, a resident of his domicile was not an insured under the issued to his father. Seventeen months filed, complaint after the the defendant moved for sum- mary disposition alleging was not owed because the Camaro was an owned vehicle not named on the declara- page court, J., policy. George Kula, tions of the The Van denied ground the motion on the the issue had waived been specifically because the had raised it its denied, answer or as an affirmative defense. The court also delay, the basis of inexcusable the defendant’s motion to amend specifically policy’s its answer to add the owned-vehicle exclu- sion as a defense and denied the defendant’s motion for recon- summary dispo- sideration of the order the motion for Appeals granted The sition. Court of the defendant leave to appeal, questions limited to the whether the defendant had References 2d, 69, 127, 130, 143, 152, 311, Pleading, 315-317, Am Jur 330. §§ Pleadings; Answer; Pleadings. See ALR Index under Amendment of 200 Mich and, so, if whether defen- waived owned-vehicle granted its to amend answer. been leave dant should have Appeals held: The Court of that the Camaro defendant did not waive defense *2 page. In not named on the declarations was an owned vehicle vehicle, arguing was an owned the defendant that the Camaro rather, defense, but, seeking was was not to raise an affirmative coverage denying that exists. The defendant’s answer regard requirements satisfy pleading to with to the sufficient ordinary negative specificity or must the which defenses with pleaded. gave It of the nature the claim or defense be notice of responsive opposite party permit take a to the to sufficient 2.116(D)(3), position. to MCR the issue could be raised Pursuant plead any time. did not have to the issue with The defendant any beyond denying specificity that exists. It was not necessary its in order be for the defendant to amend answer to summary disposi- in motion to raise the issue its for allowed tion. alternative, assuming 2. that the issues whether In the even is a the is nonowned and whether there Camaro regarding question of concern matters that material fact waived, pleaded the must or trial court abused its discretion pleading its to add the defendant leave to amend given pleadings to should be such a defense. Leave amend granting Although delay freely. to a is a factor be considered pleadings, delay does not warrant motion to amend alone to denial of motion amend. plead- 3. is not amendment of the defendant’s It clear that ings possibility is that the would be futile. There a reasonable prevail the if allowed to raise its issue. defendant will on merits title the in the of The fact the to vehicle remained name not some other individual does establish the vehicle is purposes finding coverage of Clothier nonowned vehicle under the at issue. 4. the motion for The substantive merits of summary disposition not because that issue need be addressed scope granting appeal beyond is the of the order leave to and by the has not been addressed trial court. the that the 5. The case must be remanded to trial court so by way may raise of renewal of its motion for summary disposition whether the Camaro was a the issue policy. nonowned vehicle under the insurance Reversed and remanded. Murphy, J., findings that the concurred in result and attempted argue in to its motion for defense the defendant State Farm Stanke v Ins summary disposition was not an affirmative and that defense defense, sufficiently making raised the the defendant’s answer unnecessary to seek leave to amend. Pleading — 1. Affirmative Defenses. accepts plaintiffs allegation
An affirmative defense as true plaintiffs prima even and case, admits the establishment of facie but denies that the is entitled to recover plaintiffs pleadings. claim some reason disclosed in the Pleading — 2. Amendments. primary give pleading function of a tois notice of the claim permit opposite party or defense sufficient to take a responsive position; specific sufficiently an answer must be so case, prepare adequate that a will be able to an and complaint sufficiently specific must be so that the defendant prepare adequate defense. Pleading Raising — Issues Motion. jurisdiction persons property
Issues related to over or service process motion, responsive pleading must in a be raised first; sue, capacity whichever comes issues related other *3 pending, action and affirmative defenses must raised be not responsive pleading; later than the first issues related to sub- ject-matter jurisdiction, defense, failure to state a claim or valid may and the a existence of issue material fact (MCR any 2.116[D]). at raised time Pleading — 4. Amendments. (MCR pleadings given freely 2.118[A][2]). to Leave amend is to be Pleading Delay — — Seeking Amendments in Amendment. Although delay ruling is a factor to be considered when on a give pleadings legitimate motion to amend and rise to a denying delay for motion basis a to amend where the was in prejudice opponent, delay faith bad or causes actual to the motion; only does not alone warrant denial of the where the proffered opposition reason in to an amendment is an inexcusa- delay, remedy offending party ble is to sanction to opponent expense reimburse the for the additional and attor- (MCR ney delay 2.118[A][3]). fees incurred because of the Williams,
Eric D. plaintiff. for the Fortino, & Plaxton Moskal Charles M. For- (by tino), for defendant. 200 307 310 Mich Opinion op the Court Sawyer Taylor, P.J., Murphy, Before: and and JJ. appeals by leave
Per Curiam. Defendant denying granted court from an order of circuit motion leave to amend its answer for defendant’s deny- add an additional affirmative defense to ing of the court’s a motion reconsideration summary motion order disposition. reverse. We against sought judgment declaratory
Plaintiff a damages payment a under to recover against judgment Clothier, obtained alleged insured. Plaintiff’s claim defendant’s against out of automobile acci- Clothier arose passenger a in a vehi- dent which was vehicle, The Chevro- cle driven let longed Clothier. allegedly, apparently, Camaro, be- least improper Clothier, had an title his- but tory. is, of transac- That involving there had been a series title tions the Camaro which was regis- purchaser. The last transferred to new Terry Vallett, who tered owner of vehicle was Miller, Cameron had transferred the vehicle to Reeves, it to Scott who had had transferred who Henry Cleaves, who had trans- transferred Defendant aware of ferred it to Clothier. litigation against Clothier, but to defend declined maintaining Clothier, no owed At issue here is an insurance Clothier. covering Clothier, father, John issued to Clothier’s Chrysler Newport. vigorously pursued by theory defen- most *4 litigation beginning no this was that dant at the of Roy he was owed to Clothier because was parents’ and, there- not a resident his domicile policy by fore, under the issued was not insured approxi- However, defendant to John Clothier. Stanke State v Farm Ins Opinion op the Court mately seventeen months after com- plaint filed, theory was defendant raised a new regarding why coverage, namely, it owed no the Camaro constituted an owned vehicle not page. named on the declarations Defendant raised by way summary disposi- this issue of a motion for ground tion, which the trial court denied on the that defendant had waived the issue because it specifically had not raised as a defense in its answer or as an affirmative defense. Defendant sought thereafter leave to amend its answer to specifically add the "owned vehicle exclusion” as a defense. The trial court denied the motion on the delay. basis inexcusable Defendant thereafter sought appeal leave Court, to this which was granted. question We first turn to the whether defendant did, fact, waive this defense. We conclude that it 2.111(F), did not. Under MCR a defendant must raise defenses and affirmative defenses its re- sponsive pleading, and the failure to do so consti- tutes a waiver of the defense or affirmative de- reviewing fense. After raised the nature of the issue summary in its motion for disposition, we are not convinced that defendant endeavoring to raise a "defense” or an "affir- defense,” mative beyond at least not to an extent pleadings. that which was raised in the plaintiffs complaint First, we note that in this general, very alleging matter was itself little be- yond judgment the fact had obtained a against alleged Roy insured, Clothier, and that meaning Clothier was an insured within the of an insurance issued defendant to John and Julliette Clothier. Defendant answered the complaint any coverage and denied that it owed policy. under the Later it raised its motion for 2.116(C)(8) summary disposition, under both MCR *5 307 200 312 Mich Opinion of the Court (10) (failure and no to state a claim and fact). denied The trial court of material issue concluding motion, had not operating an the issue whether Clothier was raised owned previously an- in its nonowned vehicle and, therefore, the We defense was waived. swer disagree. 2.111(F)(3), defenses affirmative
Under MCR pleading, responsive unless in the must be raised they previously in motion have been raised a filing respon- summary disposition the of a before 2.111(F)(2)(a). pleading, failure MCR sive required by the as raise an affirmative defense rule a of that affirmative court defense. constitutes waiver Hosp, Campbell 608, St 434 Mich v John (1990). However, case, 616; 455 695 in this NW2d seeking not to raise an affirmative defendant was An is a defense defense. affirmative defense establishing plaintiff’s a not the does prima controvert case, relief facie but that otherwise denies plaintiff. Campbell, supra. words, it In other to the allegation accepts plaintiff’s as is a matter that of the true and admits the establishment even prima plaintiff’s case, facie that denies but is entitled to recover the claim plead- plaintiff’s in the reason not disclosed some ings. Michigan Martin, Webster, See Dean & p example, Practice, 192. For Court Rules running of the statute of limitations is an affirma- 2.111(F)(3)(a). although Thus, defense. MCR tive very plaintiff may well have valid claim prima case, defen- facie is able establish matter, dant, as an affirmative nevertheless prevail is not entitled to establish that the claim defendant can show on the because expired period therefore, and, of limitation has untimely. the suit is bar, the whether defendant’s
In the case at Stanke State Farm v Ins Opinion of the Court alleged operating insured owned or non- owned vehicle the time of the not accident does constitute a matter anof affirmative defense. That is, the issue does not allow for establish- ing prima coming case, his facie with defendant why plaintiff forth with some other reason should prevail directly Rather, on that claim. con- *6 prevail. Thus, troverts entitlement to directly plaintiff prima denies that can establish a stating by facie case prove that will to be unable policy that a there exists of insurance issued provides by for the acci- thereby establishing liability dent, to pay underlying judgment. claim, establish,
To his establish must person against minimum, at a whom he judgment, Roy Clothier, obtained a anwas insured policy under a issued defendant and that policy policy covered the accident. The at provides liability coverage for which an insured involving "your is liable because of an accident car,” is, the insured’s car: pay damages We will an which insured becomes
legally pay liable because of: others, a. bodily injury to damage b. property or destruction of includ- ing use, loss of its resulting caused ownership, accident from the or of your [Emphasis maintenance use car. original.] policy "your being The elsewhere defines car” as car or vehicle described the declarations page. page above, As noted the declarations of the policy Chrysler Newport. lists a 1969 provides policy
However, issue also cover- age for an use of a insured’s nonowned automobile: 200 Mich Opinion of the Court Cars
Coverage the Use of Other use, by coverages extend to liability The car, temporary insured, acquired newly aof [Emphasis in car. car or a non-owned substitute original.] policy follows: car as a nonowned defines The a car not: Car —means
Non-Owned by, 1. owned of, or registered in the name
2. or regular for the or available 3. furnished of: frequent use [Emphasis in spouse, any relatives. your
you, original.] meaning of the word also defines
"insured” as follows: car, newly acquired car your we refer When car, means: insured temporary substitute
or a you; *7 your spouse; 2. in the person named of the first 3. the relatives
declarations; if its using such a car person any 4. other while your you of or scope of consent is within the use spouse; and for the organization liable person or any 5. other insureds. by one of the above of such a car
use car, insured to a non-owned we refer When means: declarations; in the person named
1. the first spouse; 2. his or her relatives; and
3. their does not organization which any person by one for its use the car is liable or hire but own original.] persons. [Emphasis above "you” as the word defines elsewhere Stanke v State Farm Ins Opinion of the Court meaning the named insured on the declarations Clothier). (i.e., page John A "relative” means a person related to a named insured and who lives including insured, with the named unmarried and unemancipated away Roy children at school. Clo- thier was not a named insured on the declarations page, but would be an if insured he is deemed a meaning only "relative,” that he not was related Clothier, to John but also lived with John Clothier. plaintiff brief, In his maintains that he is seek- ing coverage coverage under the nonowned car provisions policy quoted Thus, of the above. prevail, necessary it will be for him to show, alia, inter Clothier is an "insured” (i.e., he insured, resided with the named John Clothier), and that the Camaro is a nonowned (because automobile it was not a named vehicle on page and, therefore, declarations it is not a "your provision policy). car” under of the argument Therefore, defendant’s in the motion for disposition, summary the Camaro was not a (or, affirmatively, nonowned vehicle to state it vehicle), it was an owned does not constitute an is, affirmative defense. That it does not admit or plaintiff’s having prima allow for established his yet provides case, deny facie some other basis to Rather, relief. it denies that would be able prove prima Specifically, his facie case. it as- serts that there is no issue of material regarding fact whether the Camaro involved plain- vehicle, accident was a nonowned and that prove tiff therefore will be unable to that was a purposes nonowned car for under the policy. position Because defendant’s denies the prima claim, existence of a affirmative defense. facie is not an subject
Therefore, it is not *8 plead the rule that the failure to affirmative defen- responsive pleading, prior ses in the first or to the App 307 200 Mich op Opinion the Court motion, consti- by way pleading responsive first defense. of the affirmative a waiver tutes re- however, question does, remain some There specificity what and with degree what garding pleaded. must be defense "negative,” or ordinary, 2.111(F)(2) all defenses be require that does MCE pleaded defense not any and that pleaded, waived, excep- with certain motion is raised 2.111(D) that all denials requires tions, MCR and of the matters which the substance must state denial. The support the rely will pleader the Webster, Martin, & in 1 Dean comment authors’ (1992 43, Supp), p Rules Practice Michigan Court rules envision that the court suggests certainly denial: simple more than a (C) message of subrules Certainly the overall (D) inappropriate. general denials are is that pleader "nei- merely states that the A denial that para- allegations of nor denies the ther admits _, proofs” is plaintiff to its graph but leaves as un- that a allegation merely An "denied insufficient. true” intent frequently violates the rule’s grounds for the de- the reason and pleader state pleader ex., rule is that intent of the nial. The state facts is "untrue”, allegation is "why” the incorrect, amount of the debt alleged are incorrect, etc. however, This not, question answer does the court rule specificity degree what regarding rule seems to Certainly, pleadings. requires something beyond requirement envision it necessary, in an answer.1 Is be stated "denied” element of however, plead every a defendant the defendant believes claim substantiate, and the unable to will be requirement Though is honored more this it would seem application. than in its its breach *9 317 State Stanke v Farm Ins Opinion the of Court belief, reasons for the defendant’s in its first re- pleading? sponsive certainly That would un- seem pleading stage reasonable because at the there has discovery and, therefore, no the defendant been will not know what evidence the will be present support in able to of the elements of his necessarily claim, nor the will defendant have may all the evidence it discovered marshal plaintiff’s be able to disprove one or more elements of the Rather, claim. we must resolve this looking question by purpose pleading. at the the of Martin, Webster, It in 1 is observed Dean & Michigan p Practice, 186, Court Rules the primary pleading Michigan function of in is to give notice of the nature of the claim or defense permit opposite party sufficient to the to take a responsive position. Similarly, Campbell, supra in Supreme following 616, the Court made the concerning necessity pleading observation of an affirmative defense and the waiver of that pleaded: affirmative defense if not interpret if Even we were to subsection MCR in MCR 2.111(F)(3)(a) restrictively, 2.111(F)(3) suggests language other upon was incumbent agreement the defendants to assert the arbitration 2.111(F)(3)(c) responsive pleadings. in their MCR requires ground the inclusion of "a of defense” likely” surprise which "would be the adverse party. may While the instant surprised in have been fact the existence of the agreement, personal representatives arbitration patients following signing agree- who die of an quite generally may likely ment be to be taken surprise by the existence of such a document. Finally, language employed broad MCR 2.111(F), coupled recognizing with case law specifically existence of affirmative defenses not 2.111(F)(3)(a) provides adequate in MCR set forth warning practitioner go to the that defenses which 307 Mich Opinion Court case, prima facie plaintiff’s rebutting beyond jurisdiction subject matter than lack of other in the be stated claim, should to state a failure have deemed to they lest responsive pleading, [Emphasis been waived. added.] mind, we believe these ideas With interpretation appropriate rule is that of the court sufficiently specific that a so must be an answer plaintiff prepare adequately his will be able *10 sufficiently complaint just must be case, specific as adequately may the defendant so that prepare plead must as the his defense. Just general something beyond the "defendant something plead injured me,”2 defendant must deny specific In the case "I I’m liable.” than more although laying answer, bar, defendant’s at theory exacting every detail out allege regarding why possibly no there was could coverage, specific something plead than more did Namely, answer defendant’s not liable.” "we are specifically an "in- Clothier was denied that there was further denied that and sured” under pleading policy this as We view at issue. satisfy being rule. Had the court to sufficient present a defense to endeavored defendants involved an issue coverage there was other than whether perhaps, policy, then, defen- under inadequate pre- to have been dant’s answer would defense.3 such a serve 2 Webster, Martin, supra & at See 1 Dean example, arguably, inad answer would have been For pursu argument equate preserve that defendant was not liable an duty perform policy failed to some the insured had to the because ant under the underlying giving lawsuit policy, of the as notification such case, denying not be the defendant would In such a
to defendant. directly liability related to coverage, some reason not but is, prima ability case. That such make out a facie the a to the defendant circumstance, plaintiff might lack of notice not be aware and, therefore, of such a have no reason to be aware Stanke v State Farm Ins Opinion Court interpretation supported by This is further 2.111(F)(2) reading careful of MCR and MCR 2.116(D). 2.111(F)(2), MCR Under as discussed pleaded above, a defense is waived if not or raised 2.116(D) by motion. MCR forth sets the timetable particular to raise to issues motion. Issues related jurisdiction persons property over as well as process responsive service of pleading 2.116(D)(1). must be raised in a by motion, whichever comes first. MCR capacity sue,
Issues related to other pending, action and affirmative defenses must be responsive pleading. raised not later than the first 2.116(D)(2).Finally, subject- MCR issues related to jurisdiction, matter failure to state a claim or defense, valid and the existence of a any of material fact be raised at time. MCR 2.116(D)(3).The issue defendant seeks to raise falls category and, thus, into this latter could be raised any time. bar, In the case at defendant’s answer has satis- purpose: fied its it notified that defendant disputing Roy Clothier’s status as insured provided coverage and that the involved Certainly, this accident. defendant’s answer was as specific plaintiff’s complaint. as Plaintiff’s com- *11 plaint said little more than that Clothier was an policy provided coverage. insured and that Defendant’s answer denied those two facts. We think it unreasonable to
expect defendant’s answer specific alleging plain- why to be more theories plaintiff’s complaint tiff should not recover than alleging regarding why plaintiff was in theories plaintiff’s complaint is, should recover. That if potential prepare defense to the claim and would have no reason to might Accordingly, argued his case with that issue in mind. it that require the court rule would answer or waive that the defendant to include that issue in its However, defense to claim. in the case at bar, directly plaintiff’s ability prove the issue involved involves to prima facie case. 200 Mich Opinion op the Court explain why expected there is to not be should coverage, should not be then defendant’s answer coverage. explain why expected there is not to expected iden- Indeed, tify coverage that defendant it cannot be argument regarding why no there is each plaintiff why until defendant has learned coverage. words, if the In other claims there is state of defendant’s answer adequately it to
is such that failed raised, that can be then state a defense inadequate complaint it has so that is and should have been failed to state a claim dismissed. sum, is the Camaro
In because issue whether there is a is nonowned and whether concerning question, con- fact that we of material clude that defendant did not have plead
to that denying any specificity beyond issue with coverage plaintiff exists. Because one element have to establish was that the automobile would was have to surprise nonowned, no that he would there is might prove that element at trial point summary be faced with a motion some disposition ownership represents regard to that issue. Because non- with would
an element prove prevail affirmatively order have his represents claim, would reason- an issue that prepara- subject discovery ably and other be the Similarly, once it tions in advance of trial. became apparent that, to defendant at least from defen- viewpoint, genuine issue of dant’s material there was no be unable to
fact would appropriate prove claim, that element of his dispo- summary for defendant to file its motion sition on basis. assuming rep- alternative,
In the even that this pleaded waived, matter that must be resents a discretion in the trial court abused its we believe pleading its leave to amend *12 321 State Farm Ins Stanke v Opinion of the Court rule of It is a fundamental add such a defense. procedure in leave to amend this state civil pleadings 2.118(A)(2); given freely. MCR
should be Fyke Co, 649, 390 Mich Ben P & Sons v Gunter (1973). Although delay a 656; 213 134 is NW2d granting considered in a motion factor to be pleadings, delay 656, id. at alone does amend 663- of a motion to amend. Id. at warrant denial Fyke noted, Court amendments of As the point pleadings by necessity must come at a later pleading they the seek to amend. Id. in time than always delay Thus, some at 664. there must be pleading. a De- with an amendment of associated legitimate give denying lay may to a basis for rise delay amend, the motion to such as where a prejudice to the or causes actual in bad faith longer opponent. Indeed, an amend- Id. at 663. the greater delayed, the ment is the risk substantial 2.118(C)(2) imposes prejudice. In MCR Id. fact ability on the to offer substantial restriction during of trial. amendments the course only bar, offered In the case at reason in motion was inexcusa- court ground presented. delay. However, other is ble No ignored Fyke and the trial court directives give freely. the court rule to leave to amend remedy Indeed, the court rule further envisions remedy delay is was inexcusable. where delay deny is the not to the amendment where opposition only proffered amend- to the reason remedy rather, ment, but, offending party is to sanction the opponent for the to reimburse expenses attorney fees incurred additional requesting delay of the inexcusable because 2.118(A)(3). amendment. MCR Assuming raised is plead- preserved by specifically that had to one ing certainly sympathize answer, can it in its we 200 Mich *13 Opinion op the Court in the the lateness the court’s irritation at with proceedings the in first raised which defendant argument Assuming to meri- issue. torious, stage it at an earlier had defendant raised litigation proceedings, the could have been of the concluded in a more
expeditious That, manner. deny however, an insufficient reason to an is justify the of the answer. To amendment necessary identify amend, motion to thing it is to some- delay or the trial court’s more than mere delay. only does the trial irritation with that court’s Not opinion nothing beyond delay, cite appeal only futility of brief on cites delay. However, in to amendment are not convinced that this is an addition we
appropriate basis uphold to the trial court’s decision.
First, the trial court did not base its conclusion part upon in either in whole or a conclusion Thus, mini- an amendment would be futile. mum, at a appropriate it would be more to remand to the trial court to determine if amend- matter ment would be futile rather
than this Court Second, declare amendment all clear to us that an amendment to be futile. is not at
would, fact, appears relying upon be futile. Plaintiff to be relatively ownership of what constitutes narrow definition namely, vehicle,
of a motor whom currently respect vests, the title without subsequently the vehicle has been sold whether without proper title has transfer of or who possession and use of the vehicle. actual However, as the Vehicle Code defines "owner” including any person who has exclusive use of a period greater thirty days. vehicle for a than MCL 9.1837(a). 257.37(a); Thus, MSA if Clothier had thirty use of the vehicle for more than exclusive days, of the vehicle he would be deemed owner though Code even title owner- under Vehicle Stanke v State Farm Ins Opinion of the Court ship Furthermore, vested in someone else. a simi- incorporated lar definition is in the insurance policy itself. The definition of a nonowned car policy, quoted requires above, under the only as registered car is not owned or insured, but also that the car is not furnished regular frequent or available for the use of the insurer.
Thus, the fact that the title to the vehicle re- mained in the name of some other individual does not establish that the vehicle is a nonowned car purposes finding coverage Clothier plaintiff’s under the Indeed, at issue here. appeal acknowledges own brief on *14 that the vehicle had been "transferred” there is at least some basis for Thus, Clothier.
concluding that the vehicle does not fit within the definition of a nonowned car as that term is used in the insur- policy. Therefore, ance it is not at all clear that Indeed, amendment would be futile. appear possibility would that there is a reasonable prevail that defendant will on the merits if al- lowed to raise this issue. suggests
Plaintiff also that amendment would be ownership futile because the issue of has been prior litigation. determined in decline, We how- plaintiff points ever, First, to affirm on this basis. support us to no evidence of his claim that the previously. Second, issue was decided even if ownership previously, issue of was decided we are persuaded necessarily not that follows that de- precluded relitigating fendant is the case at bar. At a from that issue in analysis
minimum, an under estoppel the doctrine of collateral would be neces- sary, an issue not raised in the trial court and not present appeal. given Third, the broad defini- tions of what constitutes an "owner” under the policy, Vehicle Code and under the insurance it is 200 Mich Opinion of the Court more there cannot be clear to us that not at all purposes of the nonowned than one "owner” for policy. coverage provisions of the insurance vehicle That thier merely is, other than Clo- because someone may the owner been determined be have prior litigation does not in some of the vehicle compel that Clothier is not also the conclusion purposes the insurance of the vehicle for owner policy. kept in only that the nonowned It must be mind requires not vehicle vehicle insured, it not but also be owned regular frequent for the or use of be furnished Thus, if someone other than Clothier insured. actually even vehicle, there still not be
owned provision coverage under the nonowned vehicle supplied to the vehicle was nevertheless because regular frequent his use. Clothier for sum, In there are a number of issues that would resolved before we could conclude have be futile. Because those issues amendment would court, trial we decline not addressed were to address them ourselves to determine
if amend- particularly true in ment would be futile. This is light above that it was not even of our conclusion necessary for State Farm to amend its answer regarding the issue order to be allowed to raise is a nonowned vehicle. whether vehicle argues Finally, also the trial *15 summary its motion for court erred regarding disposition the issue whether this was decline, however, to address nonowned vehicle. We the merits of the issue. issue appears
First, it concerning the merits of defendant’s motion disposition beyond scope summary of our is appeal. appeal granting leave to Leave to order questions defendant limited to the whether was had waived the issue so,
and, if defendant whether granted leave to amend its an- should have been Stanke State v Farm Ins by Murphy, J. Concurrence grant appeal regard swer. We did not leave to with concerning to the issue the substantive merits of summary disposition. defendant’s motion for Sec- ond, we would also decline to address the merits of summary disposition defendant’s motion for light of the fact that the trial court itself has not yet argument. addressed the merits of defendant’s imprudent It would be for this Court to address affording the merits of the issue without first opportunity trial court an to do so.
Accordingly, remand, the trial court shall permit by way defendant to raise of renewal of its summary disposition regard- motion for the issue ing whether the vehicle involved in the accident policy. was a nonowned car under the insurance If the court concludes that a issue of mate- exist, rial fact does shall further allow defendant litigate this issue at trial. proceedings Reversed and remanded for further opinion. consistent with this We do not retain jurisdiction. Defendant tax costs. (concurring). J. I concur in the result
Murphy, majority. agree reached I also with the reasoning majority of the the defense that attempted argue in its motion for summary disposition was not an affirmative de- sufficiently fense, and that defendant’s answer making unnecessary defense, raised the for de- fendant to seek leave to amend its answer. Be- necessary cause I do not believe that it is to reach questions majority, the additional discussed only however, I concur for the reasons stated herein.