CITIZENS INS CO V DEBBRA POLONY
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STATE OF MICHIGAN
COURT OF APPEALS
CITIZENS INSURANCE COMPANY OF
AMERICA,
UNPUBLISHED
July 22, 2008
Plaintiff/Counter-DefendantAppellant,
v
No. 275026
Berrien Circuit Court
LC No. 05-002974-CK
DEBBRA POLONY and GARY F. POLONY, JR.,
Guardian of Debbra Gwenn Polony,
Defendants/Counter-PlaintiffsAppellees.
BORGESS MEDICAL CENTER,
Plaintiff-Appellee/Cross-Appellant,
v
CITIZENS
AMERICA,
No. 275100
Berrien Circuit Court
LC No. 04-003469-NF
INSURANE
COMPANY
OF
Defendant-Appellant/Cross-Appellee.
CITIZENS
AMERICA,
INSURANCE
COMPANY
OF
Plaintiff/Counter-Defendant- Appellee,
v
No. 275118
Berrien Circuit Court
LC No. 05-002974-CK
GARY F. POLONY, JR., Guardian of Debbra
Gwenn Polony,
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Defendant/Counter-Plaintiff-Appellant.
Before: Davis, P.J., and Murray and Beckering, JJ.
MURRAY, J., (concurring in part, dissenting in part).
I concur in the majority’s decision in all aspects except as to the reversal of the trial
court’s denial of attorney’s fees under MCL 500.3148. Reviewing that decision for clear error,
Attard v Citizens Ins Co of America, 237 Mich App 311, 316-317; 602 NW2d 633 (1999), means
that we must, even when there is evidence in the record to support it, come away from a review
of the trial court’s decision with a definite and firm conviction that a mistake has been made.
Amerisure Ins Co v Auto-Owners Ins Co, 262 Mich App 10, 24; 684 NW2d 391 (2004).
The purpose of the no-fault act’s attorney-fee penalty provision is to ensure prompt
payment to the insured. McKelvie v Auto Club Ins. Ass’n, 203 Mich App 331, 335; 512 NW2d
74 (1994). Accordingly, an insurer must justify its refusal to make a prompt payment, id, and
can do so by showing that the refusal is the product of a legitimate question of statutory
construction, constitutional law, or factual uncertainty. Shanafelt v Allstate Ins, Co, 217 Mich
App 625, 635; 552 NW2d 671 (1996). The trial court correctly set forth this rule of law when it
held that neither Borgess nor Polony was entitled to attorney fees. The precise issue is whether
the trial court clearly erred in finding that Citizens’ refusal was based on a legitimate question of
factual uncertainty.
Davis, the insurance adjuster that denied the claim, stated that after reviewing “the total
facts of the situation,” she ultimately denied coverage based on the fact that the police officers’
statements, the eyewitnesses’ recorded statements and the driver’s affidavit and recorded
statement created a factual uncertainty regarding whether the deceased intentionally tried to
injure herself. Davis felt that the fact that the police attempted to find a suicide note and
contemplated the possibility of a suicide created an inference that the deceased may have
intentionally tried to injure herself. Davis further felt that the accident report and eyewitness’
account that the deceased “went from walking to jogging to running . . . changed her direction
abruptly . . . [and] ran into the vehicle,” specifically Sunday’s statement that he thought the
deceased “purposely” ran into the car, and Daily’s statement that he felt the deceased
“intentionally tried to impact the vehicle,” could reasonably lead to a conclusion that there was at
least a possibility that the deceased intentionally tried to injure herself.1 It was not clear error to
conclude that the insurer’s decision, although ultimately incorrect, was not unreasonable since
the witnesses stated that the deceased ran into the side of the car, and sped up her pace as the car
turned away. There were also statements that the road was clear and unobstructed, and that the
1
This conclusion is not inconsistent with the affirmance of the order granting summary
disposition on liability. As the Supreme Court recently noted, the inquiry is whether the
insurer’s decision was reasonable, which is not controlled by the ultimate holding on liability.
Ross v Auto Club, 481 Mich 1, 11; 748 NW2d 552 (2008).
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decedent was not wearing jogging clothes. Under these facts, it was not clear error to not find
the insurer’s decision unreasonable.
Borgess and Polony correctly point out that the police, the medical examiner and the trial
court all ultimately concluded that the incident in question was an accident, with the trial court
additionally finding that there was not even a genuine issue of material fact regarding whether
the deceased intentionally tried to injure herself. However, this information was not available to
Citizens at the time that it denied coverage, and because the determinative factor is whether the
insurer’s initial refusal to pay was unreasonable, Shanafelt, supra at 635, we must limit our focus
to the information that Citizens had when it initially denied coverage.
Given that at the time Citizens denied coverage there was some evidence from which
Citizens could infer that there was a possibility that the deceased intentionally tried to injure
herself, I am not left with a definite and firm conviction that the trial court made a mistake when
it found that, at the time Citizens denied coverage, there was a legitimate question of factual
uncertainty regarding whether the deceased intentionally tried to injure herself. Accordingly, I
would hold that the trial court did not commit clear error when it denied Borgess and Polony’s
respective motions for attorney fees. MCL 500.3148(1); Amerisure Ins Co, supra at 24;
Shanafelt, supra at 635; See also Auto-Owners Ins Co v Farm Bureau Ins Group, 182 Mich App
703, 705; 452 NW2d 886 (1990).
/s/ Christopher M. Murray
-3-
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