L E DIEHL V R L COOLSAET CONSTRUCTION CO
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STATE OF MICHIGAN
COURT OF APPEALS
L. E. DIEHL,
UNPUBLISHED
November 29, 2005
Plaintiff-Appellant,
v
R. L. COOLSAET CONSTRUCTION
COMPANY and LIBERTY MUTUAL GROUP,
No. 253596
Wayne Circuit Court
LC No. 03-313538-CZ
Defendants-Appellees.
Before: Whitbeck, C.J., and Saad and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals by right an order granting summary disposition in favor of defendants.
We affirm.
In July 1998, Ameritech hired Coolsaet Construction Company (“Coolsaet”) to install
plastic conduit in certain utility easements in the city of Westland. During the course of the
installation, Coolsaet dug a ditch across the width of plaintiff’s property and, as a result,
damaged or removed some tree roots, causing trees on plaintiff’s property to die. Both Coolsaet
and Liberty Mutual, Coolsaet’s insurer, refused to replace the trees or reimburse plaintiff for the
cost of the trees. Plaintiff brought an action in contract and under the Michigan Consumer
Protection Act (MCPA) against defendants seeking damages for the loss of the trees and for
medical expenses incurred as a result of anxiety, frustration, and stress. In response, defendants
filed a motion for summary disposition under MCR 2.116(C)(7), (8), and (10). Defendants
argued that plaintiff’s claims were barred by the statute of limitations, plaintiff was not a thirdparty beneficiary of the contract between Coolsaet and Ameritech or of the contract between
Coolsaet and Liberty Mutual, and that the MCPA did not apply. After a hearing on defendants’
motion, the trial court granted summary disposition in favor of defendants.
On appeal, plaintiff argues that summary disposition was inappropriate because he was
an intended third-party beneficiary of both the contract between Ameritech and Coolsaet and the
insurance agreement between Liberty Mutual and Coolsaet. We disagree. We review de novo a
trial court’s decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999). By statute, a third party may only enforce a contract if “the promisor . . . has
undertaken to give or to do or refrain from doing something directly to or for [the third party].”
MCL 600.1405(1). Therefore, only intended, not incidental, third-party beneficiaries may
enforce a contract. Koenig v City of South Haven, 460 Mich 667, 680; 597 NW2d 99 (1999).
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Plaintiff failed to offer any proof that he was an intended third-party beneficiary of the
contract between Ameritech and Coolsaet. Plaintiff alleged in his complaint that Coolsaet had a
contractual obligation to install the conduit without damaging plaintiff’s property. However,
plaintiff failed to produce a copy of the contract or any other documentary evidence regarding
the relevant terms or provisions of the contract between the parties. In the absence of such
evidence, plaintiff has failed to substantiate his claim that he was an intended beneficiary.
Because plaintiff failed to present documentary evidence establishing a genuine issue of material
fact, defendants’ motion for summary disposition was properly granted on this issue.
Similarly, plaintiff failed to produce any evidence that he was an intended third-party
beneficiary of the insurance agreement between Liberty Mutual and Coolsaet. When an
insurance agreement fails to specifically denominate an individual, or a particularly defined class
to which the individual belongs, as an intended third-party beneficiary, the individual does not
have a right to sue for contract benefits. Schmalfeldt v North Pointe Insurance Co, 469 Mich
422, 429; 670 NW2d 651 (2003). The insurance coverage at issue was clearly provided for the
sole purpose of protecting Coolsaet, and the contract’s terms simply do not suggest that the
parties intended to enter into the contract to benefit plaintiff directly. Therefore, the trial court
correctly granted defendants summary disposition on plaintiff’s claim that he is a third-party
beneficiary to these contracts.
Plaintiff argues that he has a cause of action under the MCPA. We disagree. Under the
MCPA, it is unlawful to use unfair or unconscionable practices in the conduct of trade or
commerce. MCL 445.903(1). The MCPA defines “trade or commerce” as “the conduct of a
business providing goods, property, or service primarily for personal, family, or household
purposes . . . .” MCL 445.902(d). The intent of the act is “to protect consumers in their
purchases of goods which are primarily used for personal, family or household purposes.”
Noggles v Battle Creek Wrecking, Inc, 153 Mich App 363, 367; 395 NW2d 322 (1986). If an
item is purchased primarily for commercial purposes, then the MCPA does not apply. Zine v
Chrysler Corp, 236 Mich App 261, 273; 600 NW2d 384 (1999).
Here, Ameritech hired Coolsaet to install plastic conduit along certain utility easements
in the city of Westland. The installation of the plastic conduit was for commercial purposes, so
the MCPA does not apply. Moreover, contrary to plaintiff’s assertions, he was not a “party to
the transaction” under MCL 445.903(1)(n) and (1)(y), so these sections do not apply to him.
Because plaintiff failed to establish that he was a third-party beneficiary of either contract and
because the MCPA does not apply, the trial court did not err when it granted defendants’ motion
for summary disposition.
Affirmed.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Peter D. O’Connell
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