LATHRUP INVESTMENT CO V WEST AMERICAN INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
LATHRUP INVESTMENT COMPANY,
UNPUBLISHED
December 15, 2000
Plaintiff-Appellant,
v
WEST AMERICAN INSURANCE COMPANY,
No. 212269
Oakland Circuit Court
LC No. 95-509985-CK
Defendant-Appellee,
and
IBRAHIM KHALIL KAZAN, GERALD A.
HOFFMAN, and GERALD A. HOFFMAN
INSURANCE AGENCY, d/b/a BARACK &
HOFFMAN AGENCY,
Defendants.
Before: Gribbs, P.J., and Kelly and Sawyer, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition to
defendant West American Insurance Company regarding its estoppel claim pursuant to MCR
2.116(C)(8). Plaintiff brought this lawsuit alleging breach of contract, estoppel, and negligence
on behalf of defendant after defendant failed to pay plaintiff for building losses after his building
was destroyed by a fire. We affirm.
Plaintiff argues that the trial court erred in granting summary disposition for defendant.
This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). However, a trial court’s decision
regarding whether to invoke equitable estoppel will only be reversed if the trial court’s findings
of fact were clearly erroneous or if this Court would have reached a different result in the lower
court’s position. West American Ins Co v Meridian Mut Ins Co, 230 Mich App 305, 309; 583
NW2d 548 (1998).
Plaintiff argues that there were genuine issues of material fact that prevented the trial
court from finding that the elements of estoppel were not present. However, regardless of
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whether factual issues were present, summary disposition was appropriate under MCR
2.116(C)(8) because plaintiff failed to state a claim on which relief can be granted.
As a preliminary matter, plaintiff never clearly indicated whether its estoppel claim was
based on equitable or promissory estoppel theories. However, its brief on appeal discusses the
test for equitable estoppel. Accordingly, we will analyze the issue as one of equitable estoppel
and not of promissory estoppel.
Our Supreme Court recently stated that a plaintiff, in an insurance case, must establish the
following elements for equitable estoppel to apply:
(1) that the defendant’s acts or representations induced plaintiff to believe
that the policy was in effect at the time of the accident, (2) that the plaintiff
justifiably relied on this belief, and (3) that plaintiff was prejudiced as a result of
his belief that the policy was still in effect. [Morales v Auto-Owners Ins Co, 458
Mich 288, 296-297; 582 NW2d 776 (1998), citing Fleckenstein v Citizens’ Mut
Automobile Ins Co, 326 Mich 591, 599; 40 NW2d 733 (1950).]
Plaintiff set forth these elements in its complaint as a cause of action. Accordingly, this
claim was properly dismissed by the trial court because a plaintiff cannot use the doctrine of
equitable estoppel as a cause of action. Hoye v Westfield Ins Co, 194 Mich App 696, 707; 487
NW2d 838 (1992).
In Van v Zahorik, 227 Mich App 90, 102; 575 NW2d 566 (1997), aff’d 460 Mich 320;
597 NW2d 15 (1999), this Court stated regarding equitable estoppel:
Equitable estoppel is not a cause of action and therefore provides no
remedy. Hoye v Westfield Ins Co, 194 Mich App 696, 707; 487 NW2d 838
(1992). . . . The doctrine is generally available as protection from a defense raised
by a defendant or as an aid to the plaintiff, but it has never been recognized as a
cause of action in itself. Hoye, supra at 705-707; 487 NW2d 838. In the case at
bar, plaintiff does not assert equitable estoppel as a defense against defendant, or
even as an aid to his claim. Plaintiff essentially asserts equitable estoppel as a
cause of action and seeks relief on that ground. As a result, we think plaintiff
misuses the doctrine. Plaintiff has failed to state a claim upon which relief can be
granted. Therefore, the trial court did not err in granting defendant’s motion for
summary disposition. [Van, supra at 102.]
Similarly, in Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438; 505
NW2d 275 (1993) this Court stated that “plaintiff’s claim of equitable estoppel also fails . . .
[because] it is not a cause of action in itself and provides no remedy such as damages . . . . The
trial court did not err in dismissing this count.” Id. at 443-444, citing in part Hoye, supra at 707.
Applying Van and Marrero to this case, plaintiff erroneously relied on equitable estoppel
as a cause of action and summary disposition pursuant to MCR 2.116(C)(8) was appropriately
granted to defendant on this issue as long as plaintiff did not have a proper defensive use for the
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doctrine. Westfield Companies v Grand Valley Health Plan, 224 Mich App 385; 568 NW2d 854
(1997).
Plaintiff did not have a proper defensive method for the doctrine. Plaintiff contends on
appeal that he asserted estoppel in response to defendant’s summary disposition motion.
However, plaintiff argued promissory estoppel, not equitable estoppel, in that response. Because
plaintiff never used equitable estoppel in a defensive manner, summary disposition was thus
properly granted to defendant pursuant to MCR 2.116(C)(8).
We decline to address the issue whether promissory estoppel applied or whether the trial
court erred in granting summary disposition of its agency claim because plaintiff has abandoned
these issues on appeal. Plaintiff failed to list these issues in its questions presented and has failed
to provide any specific argument regarding them in its brief. Accordingly, we conclude that
these issues have been waived by plaintiff. Caldwell v Chapman, 240 Mich App 124, 132; 610
NW2d 264 (2000); see also In re Coe Trusts, 233 Mich App 525, 536-537; 593 NW2d 190
(1999).
Affirmed.
/s/ Michael J. Kelly
/s/ David H. Sawyer
Gribbs, P.J., did not participate.
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