TINA L BLACKBURN V STEPHEN P CASSANI
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STATE OF MICHIGAN
COURT OF APPEALS
TINA L. BLACKBURN,
UNPUBLISHED
January 7, 2000
Plaintiff-Appellee,
v
No. 209062
Wayne Circuit Court
LC No. 96-609202 NO
STEPHEN P. CASSANI,
Defendant-Appellee,
and
STATE FARM INSURANCE COMPANY,
Garnishee Defendant-Appellant.
Before: Doctoroff, P.J., and Holbrook, Jr. and Kelly, JJ.
PER CURIAM.
Plaintiff filed suit against defendant Stephen Cassani ("Cassani"), alleging claims for assault and
battery and negligence, arising from an alleged physical and sexual assault by Cassani. Cassani's
insurer, State Farm Insurance Company ("State Farm"), provided Cassani with a defense, but notified
Cassani by letter that it was reserving its right to challenge liability for coverage under its policy with
Cassani. The action between plaintiff and Cassani was thereafter mediated for $25,000 and both
parties accepted the mediation evaluation, whereupon judgment was entered in favor of plaintiff and
against Cassani in accordance with the mediation evaluation. Plaintiff subsequently filed a request for a
writ of garnishment against State Farm, seeking to collect under the terms of the insurance policy
between State Farm and Cassani. State Farm contested its liability for the judgment, but, after a
hearing, the trial court ruled that State Farm was legally estopped from denying liability and ordered
State Farm to pay the judgment in accordance with its insurance policy with Cassani. State Farm now
appeals as of right. We reverse.
The trial court erred in concluding that State Farm was estopped from contesting coverage
under its policy with Cassani because Cassani primary attorney, who had been retained by State Farm,
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had accepted the mediation evaluation. Our Supreme Court has recently clarified that an attorney
retained by an insurance company to represent an insured owes his or her duty to the insured, not the
insurer. Kirschner v Process Design Associates, Inc, 459 Mich 587, 597; 592 NW2d 707 (1999).
Thus, counsel's role in accepting the mediation award on behalf of Cassani cannot be used against State
Farm to support an estoppel theory against State Farm's challenge to coverage under the policy. Id. at
597-598.
Moreover, as the Court also makes clear in Kirschner, there is no merit to plaintiff ’s alternative
argument in support of estoppel, i.e., that State Farm either did not timely reserve its right to dispute
coverage or that it did not provide earlier notice to plaintiff of the existence of a dispute over coverage.
State Farm properly reserved its right to challenge coverage under the policy when it sent its reservation
of rights letter to Cassani soon after this matter was commenced, regardless of whether plaintiff had
notice of the existence of a dispute over coverage. Kirschner, supra at 595-596.
State Farm also argues, for the first time on appeal, that it was entitled to summary disposition
under MCR 3.101(M)(2), because plaintiff failed to comply with the discovery time limits set forth in
that court rule. This issue was not raised or addressed below, nor is the present record adequately
developed to enable this Court to decide the issue. Accordingly, we decline to review it. Richards v
Pierce, 162 Mich App 308, 316; 412 NW2d 725 (1987).
Reversed.
/s/ Martin M. Doctoroff
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Kelly
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