AUTO-OWNERS INSUR CO V MONIQUE ANGELISE AIKENS
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STATE OF MICHIGAN
COURT OF APPEALS
AUTO-OWNERS INSURANCE COMPANY,
UNPUBLISHED
November 15, 2002
Plaintiff-Appellee,
No. 234086
Ingham Circuit Court
LC No. 99-090491-CK
V
MONIQUE ANGELISE AIKENS, ANDREW
AIKENS and JEAN L. AIKENS,
Defendants,
and
JOAN ROSALES PALACIO,
Defendant-Appellant.
Before: Griffin, P.J., and Gage and Meter, JJ.
PER CURIAM.
In this declaratory judgment action, defendant Joan Rosales Palacio appeals as of right a
circuit court order granting summary disposition in favor of plaintiff. We affirm. This appeal is
being decided without oral argument pursuant to MCR 7.214(E).
On January 14, 1997, at approximately 11:30 a.m. Monique Angelise Aikens, while
operating an automobile owned by her mother, Jean Aikens, was involved in an automobile
accident with defendant Joan Rosales Palacio. At the time of the accident, the Aikens’ vehicle
was uninsured. However, at approximately 2:30 p.m. on January 14, 1997, Monique’s father,
Andrew Aikens, purchased automobile insurance on the vehicle from plaintiff, Auto-Owners
Insurance Company.
Joan Rosales Palacio has filed a personal injury lawsuit arising out of the accident in
which she has obtained a default judgment against Monique Aikens in the sum of $325,000. In
an amended complaint, plaintiff named Jean Aikens as a codefendant alleging liability under the
ownership liability statute, MCL 257.401.
In the present declaratory judgment action, plaintiff Auto-Owners Insurance Company
asserts that it owes no liability coverage for the accident on two grounds: (1) that pursuant to the
doctrine of rescission, the insurance policy issued after the automobile accident was null and
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void because it was issued based on a material misrepresentation, and (2) assuming that the
policy was in effect at the time of the accident, it provided no coverage because Monique was an
excluded driver for the reason that at the time of the accident Monique did not have a reasonable
belief that she was entitled to use the vehicle as is required by the policy. The circuit court
granted plaintiff summary disposition based on the second ground. We affirm. In doing so, we
express no opinion regarding the rescission defense asserted by plaintiff.
The automobile liability insurance policy at issue clearly and unambiguously excludes
from its coverage persons using the vehicle without a reasonable belief that they are entitled to
do so. Specifically, the policy language provides:
Exclusions
A. We do not provide Liability Coverages to any person:
***
8. Using a vehicle without a reasonable belief that that person is entitled to do
so.
The unrebutted testimony of Monique Aikens submitted in support of plaintiff’s motion
established that Monique Aikens did not have a belief that she had permission to use the vehicle
at the time of the accident:
Q. And then was [the vehicle] taken away again after that or was it taken
away before that?
A. It was taken after Christmas, like a couple weeks.
Q. Okay. Sometime in the spring or summer?
A. Then it was taken away maybe just before the accident, not too long
before the accident had happened, and that’s when I got into the accident.
Q. Okay. So they took it away a week or so after Christmas for two
weeks and gave it back to you?
A. Yes, if I remember correctly.
Q. And then you had permission to drive it?
A. Really I didn’t have permission to drive it because she had took the
keys from me, but she didn’t know I had an extra set of keys to the car. [Emphasis
added.]
At the hearing on plaintiff’s motion for summary disposition, the Honorable Lawrence
M. Glazer focused on the policy language and repeatedly questioned defendant’s counsel
regarding what evidence, if any, existed to rebut Monique’s unequivocal deposition testimony
that she did not believe she had permission to drive the vehicle:
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The Court: Doesn’t the language of the policy require that Monique have
a reasonable belief that she’s entitled to use the vehicle, not just a reasonable
belief that it’s insured?
Mr. Nolan: And that’s a question for the trier of fact. It’s not expressed
permission, which is the standard that goes to the owner liability statute. It’s a
reasonable belief.
***
The Court: I want to ask Mr. Nolan a question before I make a final
decision on this. First of all, let me tell you, I agree with you, and I don’t think
anyone disagrees that the issue today is different than the issue I decided in the
underlying case. The issue today on summary disposition is is there any evidence
from which a reasonable trier of fact could conclude that Monique had a
reasonable belief that she had permission to drive the car. And that’s different
from the issue that I had decided last time, which was based on all the evidence
available to me objectively, did she have permission to drive the car.
Before I make a decision on today’s issue, I want to give you one more
chance, Mr. Nolan, to tell me what evidence you would use that’s in the record to
counter her admission in her deposition that she did not have permission?
***
The Court: All right, thank you. I’m looking but I have not been able to
find any piece of evidence which would support a reasonable belief in the mind of
Monique that she had permission to drive that car at the time of the accident. I’ll
reiterate, I agree it is a different issue than the one I decided earlier in the
underlying case, but on summary disposition, this is your opportunity to cite any
conflicting evidence, and I have seen none.
I’m not talking about a duty to defend. That’s not at issue today. I’m not
talking about rescission. That’s not an issue today. The only thing I’m deciding
is what I understand to be put at issue by the motion, and that is whether a trier of
fact could find that Monique had a reasonable belief that she was entitled to sue
that vehicle at the time of the accident, and based on the state of the record, I
cannot make such a finding.
On appeal, defendant Palacio argues that an issue of fact exists regarding whether
Monique Aikens had a reasonable belief that she had permission to drive the vehicle at the time
of the accident. However, once again defendant fails to cite any evidence that would establish a
genuine issue of material fact on the issue. It is well established that a motion for summary
disposition under MCR 2.116(C)(10) tests the factual support for a claim or a defense. Further,
A litigant’s mere pledge to establish an issue of fact at trial cannot survive
summary disposition under MCR 2.116(C)(10). The court rule plainly requires
the adverse party to set forth specific facts the time of the motion showing a
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genuine issue for trial. [Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817
(1999).]
In the present case, defendant failed to satisfy her burden of establishing a genuine issue
of material fact on the issue whether Monique Aikens had a reasonable belief that she had
permission to use the vehicle at the time of the accident. MCR 2.116(G)(4); Maiden, supra.
In her supplemental authority, defendant relies on this Court’s reversal in the underlying
personal injury action of the circuit court’s grant of summary disposition in favor of Jean Aikens.
Defendant argues that our Court’s decision in Palacio v Aikens, unpublished opinion per curiam
of the Court of Appeals, issued May 7, 2002 (Docket No. 228165), “is dispositive” of the issue
raised in the present case. Although not articulated by defendant, the legal ground relied on may
be collateral estoppel. However, because the issues and parties in the two cases are different, the
doctrine of collateral estoppel is inapplicable. McMichael v McMichael, 271 Mich App 723,
727; 552 NW2d 788; Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995).
In the present declaratory judgment action, plaintiff Auto-Owners is a named party and
the issue is the exclusionary policy language, not the terms of the ownership liability statute. As
noted by the circuit court, the issues in the two cases are different. Specifically, irrespective
whether Monique’s mother may have given Monique permission to drive, liability coverage is
excluded under the policy unless Monique had a belief that she had permission to drive the
vehicle and her belief was reasonable. Here, the unrebutted deposition testimony of Monique
was that she did not believe that she had permission to drive the vehicle on the day of the
accident. For this reason, the circuit court correctly granted summary disposition in favor of
plaintiff.
Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Patrick M. Meter
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