Plaintiff commenced this action against his insurer, defendant St. Paul Fire & Marine Insurance Company, to cоllect on a claim under his insurance contract with defendant. Upon motion of defendant, after a hearing held on February 17, 1982, the trial court granted summary judgment in favor of defendant under GCR 1963, 117.2(3). Plaintiff appеals as of right.
Plaintiff owns and operates Via Veneto Importers, a wholesale jewelry outlet. Beginning on July 21, 1980, plaintiff’s business was insured against property damage with defendant under a "Jeweler’s Block Pоlicy”. The application for the insurance was incorporated as part of the policy. Under the terms of the policy, plaintiff purported to warrant that 100% of the jewelry would be kept in locked safes when the business was closed. On November 29, 1980, while the business was closed, burglars entered the premises and removed over $75,000 worth of jewelry which had been left outside of the locked safes. No jewelry located inside either locked safe was stolen. Plaintiff’s attorney stated at the summary judgment hearing that plaintiff was unable to place the jewelry in a locked safe because he became very ill and had to leave. Defendant rejected plaintiff’s insurance claim.
A mоtion for summary judgment brought under GCR 1963, 117.2(3) tests the factual sufficiency of the claim or defense. The court is to consider affidavits, pleadings, depositions and other documentary evidence submitted by the parties.
Partrich v Muscat,
Defendant argued below and the trial court held that plaintiff breached his warranty that he would keep 100% of his stock in locked safes when the business was closed. Plaintiff admitted that only jewelry left outside the locked safes was stolen.
The first paragraph of the insurance policy between plaintiff and defendant, entitled "Jewelеr’s Block Policy”, provides:
"This Policy is issued in consideration of the premium specified, and of the Declaration^) and Proposals) attached hereto and made a part hereof and which is (are) agreed to be the basis of this Policy. The Insured hereby warrants to be true each and every statement and particular contained in the Proposal(s).”
At the top of the third page of thе policy the following boldface notice was attached:
"NOTICE
"THE ANSWERS to the questions in the propоsal attached to this Policy CONSTITUTE WARRANTIES. If they are incorrect or are not followed, YOUR INSURANCE CAN BE VOIDED.”
Paragraph 16 of the attached and incorporated "Proposal for Jeweler’s Block Policy” is entitled "WARRANTIES AS TO PROPERTY INSURED DURING TERM OF INSURANCE AT ALL TIMES WHEN PREMISES ARE CLOSED”. The form, completed by plaintiff, indicates that 100% *447 of the stock would be kept in a locked safe or vault.
An insurance contract which is ambiguous must be liberally construed in favor of the insured.
Foremost Life Ins Co v Waters,
It is well settled that an insured must be held to a knowledge of the terms and conditions contained in his insurance policy, even though he may not have read it.
Russell v State Farm Mutual Automobile Ins Co,
Plaintiff also argues that summary judgment was impropеrly granted because there is a factual question as to whether a special relationship existed between plaintiff insured and defendant insurer’s agent, which required the agent to disclose to plaintiff the adequacy of the policy’s coverage and the conditions under which the poliсy could be voided. It is clear that an insurance contract may be reformed where there is mutuаl mistake or mistake by one party and fraud or inequitable conduct by the other.
Stein v Continental Casualty Co,
This argument is raised for thе first time on appeal. Plaintiff’s complaint does not allege any facts in support of a fraud or mistake theory. Nor were essential facts set forth by affidavit, deposition or other documentary evidence. Because plaintiff failed to properly raise this issue below, it is not proрerly before us on appeal and cannot be considered a basis for reversal of the lower court’s grant of summary judgment.
Affirmed.