NICOLE HILL-HAYNES V AUTOMOBILE CLUB INS ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
NICOLE HILL-HAYNES, assignee of SUZANNE
COMER and PATRICK LEE JACOBSON,
UNPUBLISHED
January 2, 2001
Plaintiff-Appellee,
v
No. 214768
Wayne Circuit Court
LC No. 97-733160-NI
AUTOMOBILE CLUB INSURANCE
ASSOCIATION,
Defendant-Appellant.
Before: Jansen, P.J., and Doctoroff and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from an order granting summary disposition pursuant to
MCR 2.116(C)(10) in favor of plaintiff Nicole Hill-Haynes and denying defendant’s motion for
summary disposition. We reverse and remand for entry of summary disposition in favor of
defendant.
On September 30, 1995, Hill-Haynes was injured in an automobile accident that occurred
in the city of Flint. Suzanne Comer was driving a vehicle (a van) owned by her then fiancé,
Patrick Jacobson.1 Apparently, Comer made a left turn at a traffic light and did not see HillHaynes’ vehicle. Hill-Haynes, as the oncoming vehicle struck the van being driven by Comer.
Citizens Insurance Company (Citizens) insured Jacobson’s van and defendant insured Comer’s
separate vehicle.2
Hill-Haynes filed a third-party automobile negligence suit against Comer and Jacobson,
and Citizens defended the suit. The suit was ultimately settled for $100,000 and Citizens agreed
1
Comer and Jacobson were married on December 8, 1995. Because the parties were not married
at the time of the accident, this opinion will continue to refer to Suzanne Comer by her former
name.
2
Comer was the sole owner of this vehicle and she believed that she was driving an Oldsmobile
Bravada at the time of the accident.
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to pay $50,000 (the limits of Jacobson’s policy). Comer and Jacobson then assigned to HillHaynes the $50,000 liability coverage that might be available under defendant’s policy.
Hill-Haynes brought suit against defendant seeking payment of defendant’s policy limits
issued to Comer. Both parties filed motions for summary disposition. The issue in both motions
was whether Comer was covered by her policy issued by defendant while driving Jacobson’s van.
The trial court denied defendant’s motion for summary disposition and granted Hill-Haynes’
motion for summary disposition finding that Comer was covered under the “other car” clause of
the policy.
We review de novo a trial court’s decision on a motion for summary disposition. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109,
119; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under
MCR 2.116(C)(10), a court considers the affidavits, pleadings, depositions, admissions, and
other evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the party
opposing the motion. Maiden, supra, pp 119-120. Where the evidence fails to establish a
genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of
law. MCR 2.116(C)(10), (G)(4); Maiden, supra, p 120.
The insurance policy provides coverage for an insured car, which is defined in the policy
as:
a. YOUR CAR, which is the vehicle described on the Declaration Certificate and
identified by a specific Vehicle Reference Number, a replacement, a
temporary substitute and a trailer owned by you; and
b. OTHER CAR, which is any car or trailer that you or any resident of your
household: does not own; does not lease for 31 days or more; or does not
have furnished or available for frequent or regular use.
The liability coverage section similarly provides:
1. Subject to the Definitions, Exclusions, Conditions and Limits of Liability of
this policy, we will pay damages for which an insured person is legally liable
because of bodily injury or property damage arising out of the ownership,
maintenance or use including the loading or unloading of the INSURED CAR.
The INSURED CAR means: YOUR CAR, which is the vehicle described on the
Declaration Certificate and identified by a specific Vehicle Reference Number, a
replacement, a temporary substitute and a trailer owned by you; and an
OTHER CAR, which is a private passenger car, utility car or trailer that you
or any resident of your household: does not own; does not lease for 31 days or
more; or does not have furnished or available for frequent or regular use.
The question in this case is whether the van driven by Comer constituted an “other car” as
defined in the insurance policy such that she was covered for the vehicle collision with HillHaynes. The parties rely exclusively on Comer’s deposition, which was taken on April 17, 1998.
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At her deposition, Comer testified that she was living at 11532 Britton Road in Byron with
Jacobson (at that time, her fiancé) and his four children at the time of the collision. She testified
that the Britton Road address was her principal place of residence at the time and that she had
been residing there for about three months. At that time, Comer did own a house, located at
11710 Schram Street in Grand Blanc, and had owned it for about eight years. No one was living
at the Schram Street residence when she was residing at the Britton Road residence. Comer
testified that she spent the majority of the time at the Britton Road residence, although there
would be occasion when she would stay at the Schram Street residence.
With regard to the van, Comer testified that the van was owned exclusively by Jacobson
and that the van was at the Britton Road residence on a regular basis for her use if she needed to
use it. She did not need Jacobson’s permission to use the van and she could use the van when
she wanted. Comer did use her Oldsmobile Bravada on a day-to-day basis, such as going to and
from work. On the day of the collision, Comer was living in at the Britton Road address and she
was taking her daughter to work when the accident occurred. Comer’s specific testimony was
that, because she was living with Jacobson in Byron at the time, “whenever we did anything, we
took the van.”
In Farm Bureau Mutual Ins Co of Michigan v Nikkel, 460 Mich 558, 566; 596 NW2d 915
(1999), our Supreme Court held that the policy language at issue in that case3, which is very
similar to the “other car” definition in the present case, was unambiguous and enforceable.
Indeed, plaintiff does not argue that the policy language in the present case is ambiguous. The
question is whether the evidence in the present case is undisputed such that either party is entitled
to judgment as a matter of law concerning the “other car” coverage.
It is undisputed that Comer did not own the van and did not lease the van for 31 days or
more; however, we are compelled to conclude that the van was furnished or available for
frequent or regular use by Comer and, consequently, is not an “other car” as defined in the
insurance policy such that Comer is covered by defendant for purposes of the collision with HillHaynes. Comer’s deposition testimony, and there is no other evidence to refute it, was that she
was living with Jacobson at his house at the time of the collision and that she did not need
permission to use his van. She specifically testified that the van was at the residence on a regular
basis for her use if she needed it and that she could use the van if she wanted to use it. Since
Comer’s deposition testimony is susceptible of only one interpretation, namely, that the van was
furnished or available for her frequent or regular use, the van is not an “other car” as defined in
Comer’s insurance policy.
Accordingly, we conclude that the trial court erred in granting summary disposition in
favor of plaintiff by finding that the van was an “other car” under the policy so that Comer would
be covered. Because the evidence is conclusive that the van did not constitute an “other car”
3
The specific language was the definition of a “non-owned automobile” as “an automobile or
trailer not owned by or furnished for the regular use of either the named insured or any relative,
other than a temporary substitute automobile.”
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under the terms of the insurance policy, defendant is entitled to summary disposition as a matter
of law.
Reversed and remanded for entry of summary disposition in favor of defendant.
/s/ Kathleen Jansen
/s/ Martin M. Doctoroff
/s/ Peter D. O’Connell
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