ESTATE OF ALVIN COOK V STATE FARM MUTUAL AUTOMOBILE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLOTTE JACKSON, Personal
Representative of the Estate of Alvin Cook,
UNPUBLISHED
October 5, 2004
Plaintiff-Appellant,
v
No. 246388
Wayne Circuit Court
LC No. 01-116994-NF
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellee.
Before: Murphy, P.J., and Griffin and White, JJ.
PER CURIAM.
Plaintiff’s decedent was killed in a hit-and-run accident. After defendant insurer refused
to pay uninsured motorist benefits, plaintiff brought a breach of contract action. The circuit
court granted defendant summary disposition. Plaintiff appeals the circuit court’s order by
delayed leave granted. Because the policy provision requiring the person making a claim to
report a hit-and-run accident to defendant within thirty days is ambiguous in the context of
bodily injury causing death, we conclude that the circuit court erred in granting summary
disposition to defendant. We therefore reverse.
I
On January 11, 2000, plaintiff’s decedent, Alvin Cook, was struck and killed by a hitand-run driver as he walked on the side of a road. On May 10, 2000, decedent’s mother, plaintiff
Charlotte Jackson, presented a claim for personal protection insurance benefits (PIP) and
contractual uninsured motorist (UIM) benefits to defendant insurer. Plaintiff claimed the
benefits pursuant to her automobile insurance policy with defendant, on the basis that her son
was a resident relative, and therefore an insured. See n 5, infra. After defendant denied the UIM
claim, plaintiff brought the instant action.
A
Under the parties’ insurance contract a condition precedent for recovery of UIM benefits
is that the claimant report a hit-and-run accident to defendant within thirty days. Plaintiff did not
comply with the thirty-day notice provision. Plaintiff contends that the policy’s thirty-day notice
provision is ambiguous as to the estate, impossible to perform by the estate, and/or is
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unenforceable as unconscionable. We conclude the notice provision is ambiguous in the context
of a death.
B
The principles for analyzing an uninsured motorist benefit contract for ambiguity are set
forth in Hellebuyck v Farm Bureau General Ins Co of Michigan, 262 Mich App 250, 254; 685
NW2d 684 (2004):
Defendant argues on appeal that the circuit court erred by finding the
policy language ambiguous and relieving plaintiff of his obligation to comply
with the one-year time limit. The construction and interpretation of the language
of an insurance contract presents an issue of law that is reviewed de novo.
Allstate Ins Co v Muszynski, 253 Mich App 138, 140-141; 655 NW2d 260 (2002).
“This Court interprets an insurance contract by reading it as a whole and
according its terms their plain and ordinary meaning.” Farm Bureau Mutual Ins
Co v Buckallew, 246 Mich App 607, 611; 633 NW2d 473 (2001). The terms of
an insurance policy are to be enforced as written when no ambiguity is present.
Id. A contract is ambiguous when its words may be reasonably understood in
different ways. Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355,
362; 314 NW2d 440 (1982). If a contract, however inartfully worded or clumsily
arranged, fairly admits of but one interpretation, it may not be said to be
ambiguous. Id. This Court will construe a policy containing ambiguous terms in
favor of the insured and against the insurer. Buckallew, supra at 612.
C
The policy at issue here states in pertinent part:1
REPORTING A CLAIM – INSURED’S DUTIES
***
5. Other Duties Under Personal Injury Protection, Uninsured Motor Vehicle
and Death, Dismemberment and Loss of Sight Coverages
The person making claim also shall:
a.
under the personal injury protection, uninsured motor vehicle and death,
dismemberment and loss of sight coverages:
(1) give us all the details about the death, injury, treatment and other
information we need to determine the amount payable.
1
All emphases are in the original.
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(2) be examined by physicians chosen and paid by us as often as we
reasonably may require. A copy of the report will be sent to the person upon
written request. The person, or his or her legal representative if the person is
dead or unable to act, shall authorize us to obtain all medical reports and records.
(3) answer questions under oath when asked by anyone we name, as often
as we reasonably ask, and sign copies of the answers.
b. under the uninsured motor vehicle coverage:
(1) report a “hit-and-run” accident to the police within 24 hours and to us
within 30 days.
(2) let us see the insured car the person occupied in the accident.
Under the policy definitions person means a human being.
The policy section repeatedly refers to “the person,” indicating, as in Halton v Fawcett,
259 Mich App 699, 701-702; 675 NW2d 880 (2003), app held in abeyance 677 NW2d 29
(2004), that “the person making claim” is the person referred to throughout the section. That
person is required to submit to examination by physicians chosen by State Farm, is entitled to a
copy of the report, and must authorize State Farm to obtain medical records. If the person is
dead or unable to act, the person’s legal representative must provide the authorization. Also, the
person must let State Farm see the car the person occupied.
The fair import of these sections is that the “person making claim” means the person who
sustained bodily injury, as defined in the policy,2 arising out of the operation, maintenance or use
of an uninsured motor vehicle, and that the policy at least contemplates that if the person is
unable to act, the person’s legal representative shall do so.
Other provisions, such as 5a.(1) and 5b.(1), the latter at issue here, allow for a broader
interpretation of the word “person” to include anyone making claim.3 However, if the person is
to be the same person, as the word “the” indicates, Halton, supra, one is of necessity again
directed to the person making claim to have suffered bodily injury arising from the ownership,
maintenance or use of an uninsured motor vehicle, because under the policy “the person making
2
Bodily Injury – means bodily injury to a person and sickness, disease or death which results
from it.
3
The phrase “person making claim” is itself ambiguous. The policy does not say “the person
making a claim” or “the person making the claim,” which might indicate that “claim” means the
actual formal request for payment under the policy, so that the person making the claim is the
person who submits the claim. Rather, the policy says “the person making claim,” which can be
understood, consistent with the provisions requiring examination, as referring to the person who
claims to be entitled to damages for bodily injury arising out of the operation, maintenance or
use of an uninsured motor vehicle, or the person’s legal representative.
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claim” must take additional actions that by their terms can apply only to the person suffering
bodily injury.4
The policy is thus ambiguous regarding who may be the “person making claim” and
therefore who has the obligation to provide notice. It is unclear whether the “person making
claim” must be the person who suffered bodily injury (or that person’s legal representative) or
whether any person may be the person making claim. If the policy is interpreted as referring to
one person, someone seeking to act in behalf of an insured,5 who suffered bodily injury resulting
in death or incapacitation, could be jeopardizing coverage by providing notice before being
certain that he or she will be appointed the insured’s legal representative.6
In light of our reversal of the circuit court on the basis that the policy’s notice provision is
ambiguous and unenforceable, we need not address plaintiff’s arguments that the thirty-day
notice provision was tolled until the estate was formed, that the notice provision may be enforced
only if defendant can prove actual prejudice, or that the notice provision is unconscionable.
Because the policy is ambiguous and not enforceable, the circuit court erred in granting
defendant summary disposition. We therefore reverse and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Helene N. White
4
Unlike the dissent, we read Halton, supra, as supporting plaintiffs’ position, rather than
defeating it. Halton does, indeed, hold that “person” “refers to a human being, whether in their
individual or representative capacity.” However, that does not eliminate the ambiguity created
by the actual language of the insurance policy. The statutory provision at issue in Halton had
none of the conflicting language present here. In Halton, the Court held that the statute required
only that the same “person” (human being) file the notice and commence the action. Here, the
same definite article “the” is used throughout the policy provision, so that the “person making
claim” is the same person referred to throughout the section. In Halton, the statutory duties of
the person referred to by the statute did not conflict; there is nothing inconsistent in requiring the
person who commenced the lawsuit to file the notice. Here, however, the policy provides that
“the person making claim” must also be examined by physicians chosen by the insurance
company, and “the person making claim” or “his or her legal representative if the person is dead
or unable to act must authorize the insurance company to obtain all medical reports and records.
These provisions create an ambiguity not present in Halton.
5
Under the Uninsured Motor Vehicle coverage, a resident relative is included in the definition of
an insured.
6
Unlike the dissent, we do not think the questions of notice and who is the proper claimant under
the policy can be separated in this context. The policy states that “the person making claim”
must report the accident. But “the person making claim” has other enumerated duties under the
policy as well; and when the section is read as a whole, it is ambiguous regarding who can
properly be “the person making claim.” It is therefore ambiguous regarding who has the duty to
report the accident within 24 hours, any human being, or the person suffering bodily injury or
that person’s legal representative.
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