COZE ELISSA LONG V VINCENT LECARI BERRY II
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STATE OF MICHIGAN
COURT OF APPEALS
INTEGON NATIONAL INSURANCE CO.,
UNPUBLISHED
March 25, 2010
Plaintiff-Appellee,
v
No. 289320
Wayne Circuit Court
LC No. 08-103630-CK
VINCENT LECARI BERRY and PATRICIA
CAROL BERRY,
Defendants,
and
COZE ELISSA LONG,
Defendant-Appellant,
and
BRISTOL WEST INS CO.,
Intervening Defendant-Appellee.
INTEGON NATIONAL INSURANCE CO.,
Plaintiff-Appellee,
v
VINCENT LECARI BERRY II and PATRICIA
CAROL BERRY,
Defendants,
and
ELISSA COZE LONG,
Defendant-Appellee,
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No. 289366
Wayne Circuit Court
LC No. 08-103630-CK
and
BRISTOL WEST INSURANCE COMPANY,
Intervening Defendant-Appellant.
COZE ELISSA LONG,
Plaintiff-Appellee,
v
VINCENT LECARI BERRY II and PATRICIA
CAROL BERRY,
No. 291175
Wayne Circuit Court
LC No. 07-707389-NI
Defendants,
and
BRISTOL WEST AUTOMOBILE INS CO.,
Defendant-Appellant.
Before: M. J. KELLY, P.J., AND TALBOT AND WILDER, JJ.
PER CURIAM.
These consolidated appeals concern whether and to what extent automobile no-fault
insurance policies issued by Integon National Insurance Company (Integon) and Bristol West
Insurance Company (Bristol West) cover the injuries sustained by Coze Elissa Long in an
automobile accident. In docket no. 289320, Long appeals as of right the trial court’s order
granting summary disposition in favor of Integon in its suit for declaratory relief. In docket no.
289366, Bristol West appeals as of right the same order. In docket no. 291175, Bristol West
appeals as of right the trial court’s order denying its motion for summary disposition in Long’s
suit for uninsured motorist benefits. On appeal, we conclude that the trial court did not err when
it granted summary disposition in favor of Integon in docket nos. 289320 and 289366, and
denied Bristol West’s motion for summary disposition in docket no. 291175. For these reasons,
we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
According to Long, in June 2006 she was driving along a highway when traffic began to
slow. Long indicated that Vincent Lecari Berry II (Vincent Berry) was driving behind her, failed
to stop, and struck her car in the rear. At the time, Vincent Berry was driving a car owned by his
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mother—Patricia Carol Berry (Patricia Berry). The police officer that prepared the accident
report did not list an insurer for Patricia Berry’s car.
In July and December 2006, Long’s trial counsel sent letters to Vincent Berry asking him
to notify his insurance carrier about the accident or verify that he had no insurance. Vincent
Berry did not respond to either letter.
In March 2007, Long sued Patricia and Vincent Berry for damages arising from the
automobile accident. She alleged that Vincent Berry negligently struck her and caused injuries
that amounted to a serious impairment of body function. Long asked for both economic and
non-economic damages.
Long also sued her no-fault insurer, Bristol West, alleging that it breached its insurance
agreement with Long by failing to pay uninsured motorist benefits. She also alleged that Bristol
West unreasonably refused or delayed payment of personal protection insurance benefits under
the agreement.
Through a search of motor vehicle and postal records, Long verified that the address for
both Patricia and Vincent Berry was the same address recorded on the accident report. Long
tried to serve her complaint on Patricia and Vincent Berry via certified mail at that address, but
was unsuccessful. Long hired a process server to serve notice in June 2007. However, the
process server was unable to personally serve Patricia and Vincent Berry. In June 2007, the trial
court granted Long permission to use substitute service at the address.
In July 2007, Vincent Berry sent a letter to Long’s trial counsel indicating that he was
unemployed and uninsured. Patricia and Vincent Berry did not otherwise answer Long’s
complaint. The clerk of the court entered a default against Patricia and Vincent Berry in August
2007.
Although Vincent Berry had asserted that he was uninsured at the time of the accident,
Patricia Berry actually had insurance through Integon. The policy was in effect from May
through November 2006. However, neither Patricia nor Vincent Berry ever contacted Integon
about the accident or litigation. Several weeks after entry of default, but before entry of a default
judgment, Bristol West contacted Integon and notified it about the litigation against Patricia and
Vincent Berry.
Integon sent a letter to Patricia Berry in October 2007. In the letter, Integon stated that it
would defend her while reserving its right to cease defending her should it determine, that there
was no coverage as a result of her failure to cooperate or give notice of the accident. In
November 2007, the trial counsel retained by Integon to represent Patricia and Vincent Berry
moved to have the default set aside. Long’s trial counsel opposed the motion and the trial court
denied it in January 2008.
In February 2008, Integon sued Patricia Berry, Vincent Berry and Long. In its complaint,
Integon asked the trial court to declare that it had no duty to provide coverage or defend Patricia
or Vincent Berry against the claims made by Long. Integon alleged that Patricia Berry breached
the terms of the insurance agreement when she failed to give notice of the accident, failed to give
notice of the litigation, and failed to cooperate with Integon’s investigation and defense of the
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claims against her. Integon further alleged that these failings prejudiced it. Integon also alleged
that Patricia Berry made a material misrepresentation when she failed to notify Integon that her
son resided with her or otherwise regularly had access to the insured car. On the basis of these
claims, Integon asserted that it had no obligation to defend Patricia or Vincent Berry or cover the
claims against them. Patricia and Vincent Berry failed to answer Integon’s complaint and the
clerk of the court entered a default against them on April 24, 2008.
On April 29, 2008, Integon moved for summary disposition on its complaint for
declaratory relief as to the only remaining defendant—Long. Bristol West then moved for
permission to intervene as a defendant in the declaratory action, which the trial court granted in
May 2008. Long also cross-moved for summary disposition and asked the trial court to declare
that Integon had to cover her claims against Patricia and Vincent Berry.
The trial court held a hearing on Integon’s motion for summary disposition in September
2008. At oral arguments, Long’s trial counsel argued that, even if Integon were prejudiced by
Patricia and Vincent Berry’s failure to give notice and cooperate, Integon would still be liable for
the $20,000 in minimum coverage required under the no-fault act because an innocent third party
was involved. After hearing the parties’ arguments, the trial court determined that Integon had
been prejudiced by its insured’s failure to give notice. For that reason, the trial court determined
that Integon had no duty to defend or cover Patricia or Vincent Berry under its policy, even
though an innocent third party was involved. The trial court entered an order granting Integon’s
motion for summary disposition and denying Long’s motion on September 30, 2008.
In October 2008, Bristol West moved for reconsideration of the trial court’s decision to
grant Integon’s motion for summary disposition. The trial court denied the motion in November
2008. Both Long and Bristol West appealed as of right the trial court’s decision to grant
summary disposition in favor of Integon in December 2008. This Court assigned docket no.
289320 to Long’s appeal and assigned docket no. 289366 to Bristol West’s appeal.
In December 2008, Bristol West moved for summary disposition on Long’s claim for
uninsured motorist coverage. Bristol West argued that it did not have to provide uninsured
motorist coverage because Vincent Berry had coverage at the time of his accident and, for that
reason, he was not an uninsured motorist under the terms of the policy. Bristol West also argued
that Long forfeited her coverage by opposing Integon’s attempt to set aside the default. The trial
court denied Bristol West’s motion in January 2009 and ordered the matter to binding
arbitration.1
Bristol West applied for leave to appeal to this Court in March 2009. This Court granted
leave to appeal in June 2009 and assigned docket no. 291175 to that appeal. This Court also
consolidated that appeal with the appeals in docket nos. 289320 and 289366.2
1
In May 2009, Long and Bristol West stipulated to the dismissal of Long’s claim for personal
protection insurance benefits.
2
See Long v Berry, unpublished order of the Court of Appeals, entered June 17, 2009 (Docket
(continued…)
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II. THE APPEALS IN DOCKET NOS. 289320 AND 289366
A. STANDARD OF REVIEW
We shall first address Long’s argument that the trial court erred when it concluded that
Integon did not have to provide coverage to Patricia or Vincent Berry because they failed to give
Integon notice of the accident or litigation. This Court reviews de novo a trial court’s decision to
grant summary disposition under MCR 2.116(C)(10). Barnard Mfg, Inc v Gates Engineering
Co, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo
questions of law such as the proper interpretation of statutes and contracts. Hunter v Hunter, 484
Mich 247, 257; 771 NW2d 694 (2009); Rory v Continental Ins Co, 473 Mich 457, 464; 703
NW2d 23 (2005).
B. NOTICE AND OPPORTUNITY TO DEFEND
As a matter of public policy, the Michigan Legislature has determined that every “motor
vehicle liability policy” should be subject to certain provisions without regard to whether the
provisions are actually a part of the policy. See MCL 257.520(f). One such provision limits an
insurers liability for judgments rendered in suits where the insurer did not have notice and
opportunity to defend the suit: “The insurance carrier shall not be liable on any judgment if it has
not had prompt notice of and reasonable opportunity to appear in and defend the action in which
such judgment was rendered . . . .” MCL 257.520(f)(6). This limitation on liability is absolute
and bars an injured party from obtaining a recovery from the insurer where the insurer was not
afforded notice and reasonable opportunity to appear and defend. Kleit v Saad, 153 Mich App
52, 57; 395 NW2d 8 (1985). Nevertheless, the insurer has the burden to prove that it “was
prejudiced by the insured’s failure to notify it of the lawsuit.” Id. at 58. An insurer must prove
prejudice because, “if the insurer was not prejudiced before it was notified of the action,” it
necessarily received sufficiently prompt notice within the meaning of MCL 257.520(f)(6). Kleit,
153 Mich App at 58. Whether an insurer was prejudiced is a question of fact. Id.
On appeal, Long argues that MCL 257.520(f)(6) does not relieve Integon of liability on a
variety of grounds. She first argues that, although Integon’s insurance contract required Patricia
Berry to notify Integon of the accident at issue, the agreement did not state that the failure to give
notice would result in a denial of coverage; it only provided that the failure to notify “may affect
coverage” and “may result in denial of coverage.” Long notes that the use of the word “may” in
the agreement indicates that Integon’s decision to revoke coverage is discretionary rather than
mandatory. We agree that Integon could have decided, as a matter of discretion, to cover
Patricia Berry notwithstanding her failure to comply with the notice requirements of the
insurance agreement. But Integon clearly chose not to overlook the lack of notice. Instead, it
exercised its discretion to deny coverage when it asked the trial court to declare its right to do so,
in relevant part, under MCL 257.520(f)(6). To the extent that the statute protected it from
liability for any judgment in favor of Long, Integon could properly exercise its discretion by
invoking MCL 257.520(f)(6) and asking the trial court to declare its rights and liabilities under
the insurance agreement at issue.
(…continued)
No. 291175).
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Long also states that, by its own terms, MCL 257.520(f)(6) applies only to “judgments”
and she observes that a “judgment was never entered in the underlying tort case.” These
observations are entirely accurate, but we fail to see how they are relevant to our review of the
trial court’s decision to grant Integon’s motion for summary disposition. Presumably, Long
means to suggest that the decision to grant summary disposition on Integon’s declaratory action
was premature because there was as of that time no judgment in the underlying action. However,
we do not agree that Integon had to wait until a judgment had been entered in order to assert its
rights under MCL 257.520(f)(6).3
MCL 257.520(f)(6) clearly absolves an insurer of all liability to pay a judgment where
the insurer was not provided with “prompt notice of and reasonable opportunity to appear in and
defend the action in which such judgment was rendered.” The key provision of this statute is the
lack of notice and the concomitant loss of an opportunity to appear in and defend the action—not
the entry of the judgment. Once an insurer has been deprived of notice and opportunity to
defend—that is, suffered prejudice, the fact that a judgment has not yet been entered is irrelevant
because the insurer cannot be held liable for any subsequently entered judgment in that action.
MCL 257.520(f)(6). And if an insurer can establish the requisite prejudice prior to entry of the
judgment, there is no reason that a trial court should delay in declaring the insurer’s rights under
MCL 257.520(f)(6). Accordingly, the trial court did not err to the extent that it determined
Integon’s rights under MCL 257.520(f)(6) before the entry of the judgment in the underlying tort
action.
Long also argues that Integon failed to establish that it was actually prejudiced by the late
notice and, to the extent that it did show some prejudice, whether there was sufficient prejudice
was a question of fact for the jury. For that reason, Long further argues, the trial court erred
when it granted Integon’s motion for summary disposition.
There are few decisions addressing the prejudice that must be shown in order to establish
a defense under MCL 257.520(f)(6). However, Michigan courts have addressed the nature of the
prejudice that must be shown by an insurer in order to cut off responsibility on the ground that an
insured did not comply with a contract provision requiring notice of suit.
In Koski v Allstate Ins, 456 Mich 439, 443-444; 572 NW2d 636 (1998), our Supreme
Court addressed whether an insured’s failure to comply with the notice-of-suit provision under
its insurance agreement discharged Allstate from any liability. The Court noted that it was well
settled that an insurer had to show actual prejudice to its position before it could be relieved of its
obligation to cover a claim on the basis of lack-of-notice. Id. at 444. The Court explained that
the insurer in that case, Allstate, had demonstrated clear prejudice:
The evidence in the instant case established that Allstate received no
notification of the suit brought against plaintiff until three months after the entry
3
We note that no party has argued that Integon had a continuing duty to defend Patricia or
Vincent Berry under its policy. Rather, both Long and Bristol West argued that Integon should
be obligated to pay Long’s claims after they are reduced to judgment.
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of the default judgment. Moreover, nothing in the record indicates that Allstate
would have refused to defend the suit, if asked, under a reservation of rights.
Consequently, Allstate was deprived of any opportunity to engage in discovery,
cross-examine witnesses at trial, or present its own evidence relative to liability
and damages. [Id. at 445.]
Thus, the loss of an opportunity to conduct discovery, cross-examine witnesses, and
present evidence can constitute sufficient prejudice. Moreover, our Supreme Court rejected the
contention that Allstate did not suffer prejudice because it had an opportunity to take steps to
have the default judgment set aside: “We believe that plaintiff overstates Allstate’s ability to set
aside the default judgment because it is far from certain that Allstate, standing in the shoes of
plaintiff, could have established its entitlement to a new trial.” Id. at 447. Because the
extraordinary circumstances necessary to set aside a judgment were not present, our Supreme
Court concluded that “the resulting prejudice suffered by Allstate is clear.” Id. Accordingly,
where an insurer receives notice after the underlying litigation has progressed to a point where
the insurer will have little or no opportunity to protect its interests or that of its insured, the
insurer can demonstrate actual prejudice.
In Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429; 761 NW2d 846 (2008), this
Court also addressed the prejudice that must be shown in order to relieve an insurer of liability
under its policy for failure to give notice. This Court first noted that an insurer does not need to
show that, but for the delay in notice, it would have avoided liability in order to demonstrate
prejudice. Id. at 448. Rather, an “insurer suffers prejudice when the insured’s delay in providing
notice materially impairs the insurer’s ability to contest its liability to the insured or the liability
of the insured to a third party.” Id., citing West Bay Exploration Co v AIG Specialty Agencies of
Texas, Inc, 915 F2d 1030, 1036-1037 (CA 6, 1990). This Court explained that there were
several factors that should be considered when determining whether an insurer has suffered
actual prejudice:
“In determining whether an insurer’s position has actually been prejudiced
by the insured’s untimely notice, courts consider whether the delay has materially
impaired the insurer’s ability: (1) to investigate liability and damage issues so as
to protect its interests; (2) to evaluate, negotiate, defend, or settle a claim or suit;
(3) to pursue claims against third parties; (4) to contest liability of the insured to a
third party; and (5) to contest liability to its insured.” [Tenneco, 281 Mich App at
448-449, quoting Aetna Cas & Surety Co v Dow Chem Co, 10 F Supp 2d 800, 813
(ED Mich, 1998).]
Although the decisions in Koski and Tenneco dealt with contractual notice-of-suit
provisions, we believe that the analyses in those cases are equally applicable to an insurer’s
burden to prove prejudice in order to establish a defense to liability under MCL 257.520(f)(6).
In this case, Integon presented evidence in its motion for summary disposition that it did
not receive any notice of the accident or litigation until months after the accident. By that time,
Long had already obtained a default against Patricia and Vincent Berry. As a result, during the
early stages of the litigation, Integon did not have the opportunity to investigate the accident,
participate in full discovery—including deposing Long, or negotiate a settlement. Moreover, the
entry of default deprived Integon of the ability to contest liability or present defenses including
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whether Long’s injuries met the serious impairment threshold. See Kalamazoo Oil Co v
Boerman, 242 Mich App 75, 79; 618 NW2d 66 (2000) (“In Michigan, it is an established
principle that ‘a default settles the question of liability as to well-pleaded allegations and
precludes the defaulting party from litigating that issue.’”), quoting Wood v DAIIE, 413 Mich
573, 578; 321 NW2d 653 (1982). Accordingly, Integon presented significant evidence that, by
the time it received any notice of the underlying action, the litigation had progressed to a point
where it no longer had any reasonable opportunity to appear in or defend the action at issue—
that is, it presented clear evidence of prejudice within the meaning of MCL 257.520(f)(6). See
Koski, 456 Mich at 447.
Once Integon made a properly supported motion for summary disposition, Long was
obligated to respond by presenting evidence that established a question of fact on the issue of
prejudice. Barnard Mfg, 285 Mich App at 374. In response to Integon’s motion, Long argued
that Integon did not suffer prejudice because it had access to the discovery done before the
default, had the opportunity to move to have the default set aside, and could still contest
damages. But Long did not present any evidence concerning the nature and extent of the
discovery actually conducted. Hence, there was no evidence from which a fact-finder could
conclude that the relevant discovery so clearly established liability and a threshold injury that
Integon would not have benefited from participation in discovery and had little likelihood of
prevailing on the merits of the underlying claim. Accordingly, there was no question of fact
concerning the nature and extent of the prejudice actually occasioned by the default.
Moreover, the fact that Integon had the opportunity to participate in the litigation after the
default did not alter the significance of its loss of the opportunity to participate in discovery or to
have a jury resolve liability and determine whether Long’s injury met the serious impairment
threshold. Absent a stipulation by the opposing party, a party moving to set aside a default bears
a heavy burden. See MCR 2.603(D)(1) (stating that, in relevant part, a trial court may only set
aside a default for good cause and with evidence of a meritorious defense); Shawl v Spence Bros,
Inc, 280 Mich App 213, 221; 760 NW2d 674 (2008) (stating that the policy of this state
generally disfavors setting aside defaults). And, because there was no evidence that Patricia or
Vincent Berry had good cause for failing to respond to Long’s complaint, see id. at 223 (noting
that negligence is not normally a ground for setting aside a default), once Long decided to
contest Integon’s motion, that motion was virtually guaranteed to, and actually did, fail. See
Koski, 456 Mich at 447 (stating that prejudice is clear where the insurer had only a limited and
likely futile ability to request that the judgment be set aside). Similarly, Integon’s ability to
participate in the damages phase of the litigation is no substitute for being able to participate in
and develop discovery, for having the opportunity to have the trial court rule on motions for
summary disposition, and for having a jury make findings of fact as to elements of a claim and
the applicable defenses. Indeed, the right to have a jury decide liability is so fundamental to our
system of law that, absent evidence of extraordinary circumstances showing that no reasonable
jury could have found in favor of the insurer’s position, the loss of the right to have a jury decide
liability will generally be sufficient to establish prejudice.4 See Maldonado v Ford Motor Co,
4
We do not preclude the possibility that there will be situations where liability and a threshold
injury are so clearly established that the entry of a default will not be sufficient to establish
(continued…)
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476 Mich 372, 402; 719 NW2d 809 (2006) (stating that “few, if any, interest are more
fundamental than the right to a fair trial by an impartial jury.”). Under these facts, there was no
dispute that the late notice of the underlying tort action deprived Integon of any reasonable
opportunity to appear in and defend the underlying tort action. For that reason, Integon could not
be held liable for any judgment subsequently entered against Patricia and Vincent Berry. MCL
257.520(f)(6). The trial court did not err when it granted summary disposition in favor of
Integon on this basis.5
C. RESIDUAL LIABILITY
Both Long and Bristol West contend that, even if the trial court properly determined that
Integon established prejudice within the meaning of MCL 257.520(f)(6), the trial court
nevertheless erred to the extent that it determined that Integon had no liability under the policy at
issue. Long and Bristol West rely on the decision in Coburn v Fox, 425 Mich 300; 389 NW2d
424 (1986), for the proposition that Integon would nevertheless be liable for the statutory
minimum coverage of $20,000. See MCL 257.520(b)(2); MCL 500.3009(1). We conclude that
the decision in Coburn does not apply to the facts of this case.
In Coburn, our Supreme Court had to determine whether an insurer could be relieved of
liability for claims by injured third parties on the basis of its insured’s failure to cooperate with
the investigation and defense of the third parties’ claims. Coburn, 425 Mich at 306-307. The
Court concluded that such a defense was not valid to the extent that the residual liability
insurance is compulsory. Id. at 312. However, the Court in Coburn did not involve a situation
where the insured failed to give the insurer notice such that the insurer was deprived of a
reasonable opportunity to appear in and defend the underlying tort action. For that reason, the
Court did not have to interpret and apply MCL 257.520(f)(6). Indeed, this Court has already
distinguished the facts present in Coburn on this same basis. See Kleit, 153 Mich App at 57-58
(examining Coburn v Fox, 134 Mich App 190; 350 NW2d 852 (1984)).6
The court in Kleit noted that the Legislature has provided a specific statutory provision
for situations where the insurer did not receive adequate notice, whereas there is no statutory
provision governing situations where the insured fails to cooperate. Id. at 57 (“We note that the
factual situation presented in Coburn (an insured’s failure to cooperate in the insurer’s defense of
a claim) is not covered by a similar provision in the financial responsibility act.”). And as the
court in Kleit explained: “the Legislature has provided in the statute that failure to notify the
insurer will bar recovery by the [injured third-party] from the insurer.” Id. The court in Kleit
correctly concluded that MCL 257.520(f)(6) governs cases involving the failure to give notice, as
opposed to those cases where the insurer had proper notice, but where the insured failed to
(…continued)
prejudice. However, this is not such a case.
5
Bristol West also argued on appeal that Integon failed to present evidence that it suffered actual
prejudice or, in the alternative, that whether there was actual prejudice should have been left to
the finder-of-fact. However, for the same reasons already discussed, we reject these contentions.
6
The decision in Kleit came out after this Court’s decision in Coburn, but before our Supreme
Court’s decision in Coburn.
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cooperate with the insurer to the insurer’s prejudice. See Kleit, 153 Mich App at 57. According
to its plain terms, MCL 257.520(f)(6) relieves the insurer of any liability to pay a judgment in an
action where the insurer did not receive notice and did not have a reasonable opportunity to
appear in and defend. Therefore, our Supreme Court’s decision in Coburn is inapplicable to the
facts of this case.7
Bristol West also argues that MCL 257.520(f)(6) does not apply to the facts of this case
because it only applies to insured persons who have already had an accident and there is no
evidence that Vincent Berry had a previous accident. Although the Financial Responsibility Act,
MCL 257.501 et seq., requires persons who have had judgments against them to maintain proof
of financial responsibility, see MCL 257.513(a), there is nothing within the act that specifically
limits application of MCL 257.520 to insurance policies issued to persons who have had a prior
accident. And we will read no such limitation into the statute.8 See Paschke v Retool Industries,
445 Mich 502, 511; 519 NW2d 441 (1994) (“Where the statutory language is clear, the courts
should neither add nor detract from its provisions.”).
We also do not agree with Bristol West’s contention that the more recently enacted MCL
500.3131 and MCL 500.3009(1) take precedence over the financial responsibility act such that
MCL 257.520(f)(6) does not apply to policies issued under the no-fault act. Although by its own
terms the financial responsibility act does not apply to “policies of automobile insurance against
liability which may now or hereafter be required by any other law of this state,” MCL
257.522(a), with regard to residual liability, the no-fault act specifically incorporates the
financial responsibility laws of the place in which the injury or damage occurs:
Residual liability insurance shall cover bodily injury and property damage which
occurs within the United States, its territories and possessions, or in Canada. This
insurance shall afford coverage equivalent to that required as evidence of
automobile liability insurance under the financial responsibility laws of the place
in which the injury or damage occurs. In this state this insurance shall afford
coverage for automobile liability retained by section 3135. [MCL 500.3131(1).]
On the basis of this language, Michigan Courts have looked to Michigan’s financial
responsibility act to determine the scope of coverage and public policy governing the terms of
7
For the same reason, Bristol West and Long’s reliance on Farm Bureau Ins Co v Abalos, 277
Mich App 41; 742 NW2d 624 (2007), is unavailing. In Abalos, this Court had to determine, in
relevant part, whether an insured’s failure to cooperate could relieve the insurer of any obligation
to cover the claims against the insured. Id. at 45. As was the case in Coburn, the facts in Abalos
did not involve lack of notice or application of MCL 257.520(f)(6). For that reason, this Court
concluded that the decision in Coburn applied and that the insurer would still be liable for the
minimum coverage. Abalos, 277 Mich App at 45.
8
We also disagree that the heading used for this chapter requires us to read such a limitation into
the statutory language. See MCL 8.4b; In re Lovell, 226 Mich App 84, 87; 572 NW2d 84 (1997)
(rejecting use of a heading to construe a statute and stating that courts “may not speculate
regarding the probable intent of the Legislature beyond the words expressed in the statute.”).
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residual liability coverage for insurance policies under the no-fault act. See State Farm Mut Auto
Ins Co v Roe, 226 Mich App 258, 268; 573 NW2d 628 (1997). Further, the 1978 amendment to
MCL 500.3131 did not nullify the incorporation of these provisions into the no-fault act.
Prior to the enactment of the no-fault act, motorists could choose whether to carry
liability insurance. See Coburn, 425 Mich at 308. If a motorist chose to purchase such a policy,
that policy had to contain certain minimum coverage levels under MCL 500.3009(1). Coburn,
425 Mich at 308. However, MCL 257.520 governed the coverage required for compulsory
automobile insurance policies. With the enactment of the no-fault act, the Legislature elected to
incorporate the provisions of the financial responsibility act into the no-fault act for purposes of
determining the level of coverage required for residual liability: the no-fault policy must provide
coverage that is “equivalent” to that required “under the financial responsibility laws.” See MCL
500.3131(1). Thus, a no-fault insurance policy had to include the contract provisions required
under MCL 257.520(f).
In 1978, the Legislature amended MCL 500.3131 to add MCL 500.3131(2). 1978 PA
460; see also Citizens Ins, 448 Mich at 229 n 3. After that amendment, MCL 500.3131(2)
provided: “This section shall not require coverage in this state other than that required by [MCL
500.3009(1)].” Accordingly, after this amendment, the coverage levels previously required for
elective automobile insurance policies under MCL 500.3009(1) applied to the compulsory
policies issued under Michigan’s no-fault law. However, this amendment did not altogether
eliminate application of Michigan’s financial responsibility law to no-fault insurance policies.
Had the Legislature wanted to eliminate application of the financial responsibility law altogether,
it could have done so by stating that, for accidents that occur in Michigan, the insurance shall
afford coverage “equivalent” to that required under MCL 500.3009(1). But it did not do so;
rather, it retained the reference to the financial responsibility law in MCL 500.3131(1), but
provided that the coverage required under the no-fault act “shall not” be “other” than that
required under MCL 500.3009(1). See MCL 500.3131(2). We conclude that Legislature
amended MCL 500.3131 in this way in order to retain the substantive provisions mandated under
the financial responsibility act while ensuring that, to the extent that the coverage required under
MCL 257.520 conflicted with the coverage required under MCL 500.3009(1), the latter statute
would control. Accordingly, the mandatory provisions of Michigan’s financial responsibility act
still apply to insurance policies issued under Michigan’s no-fault act to the extent that those
provisions do not conflict with MCL 500.3009(1).9 The provision required under MCL
9
We note that our Supreme Court has also stated that the financial responsibility act remains
applicable in the no-fault context. See Citizens Ins v Federated Mut Ins, 448 Mich 225, 230-233;
531 NW2d 138 (1995) (stating that, although the financial responsibility had not been rendered
meaningless by the enactment of the no-fault act, the financial responsibility act could not be
used to sanction what is otherwise repugnant under the no-fault act); see also Farmers Ins
Exchange v Farm Bureau General Ins Co, 478 Mich 880, 885; 731 NW2d 757 (2007)
(Markman, J.) (noting that Michigan courts have traditionally looked to the financial
responsibility act to determine the required scope of residual liability coverage under the no-fault
act). Similarly, this Court has held that the no-fault act must be read in pari materia with the
Michigan Vehicle Code, which includes the financial responsibility act. Cason v Auto-Owners
Ins Co, 181 Mich App 600, 606; 450 NW2d 6 (1989). Finally, Michigan courts have applied the
(continued…)
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257.520(f)(6) does not conflict with MCL 500.3009(1). Therefore, MCL 257.520(f)(6) applies
to the policy at issue.
Because Integon demonstrated that it was deprived of a reasonable opportunity to appear
in and defend the underlying tort action within the meaning of MCL 257.520(f)(6), the trial court
did not err when it concluded that Integon could not be held liable for any judgment in that
action.
III. ISSUES IN DOCKET NO. 291175
A. STANDARD OF REVIEW
In docket no. 291175, Bristol West first argues that the trial court erred when it failed to
grant summary disposition in its favor. Specifically, Bristol West agues that the car driven by
Vincent Berry at the time of the accident was not an “uninsured motor vehicle” within the
meaning of Long’s insurance policy. For that reason, Bristol West further argues, it was not
required to provide uninsured motorist benefits to Long, and the trial court should have granted
its motion on that basis.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Barnard Mfg, 285 Mich App at 369. This Court also reviews de novo the proper interpretation
of an insurance agreement. Rory, 473 Mich at 464.
B. DEFINITION OF UNINSURED MOTOR VEHICLE
Under the terms of the insurance agreement between Bristol West and Long, Bristol West
agreed to pay “damages for bodily injury to an insured person” that is “caused by accident; and”
“[a]rises out of the ownership, operation, maintenance or use of an uninsured motor vehicle.”
The agreement defines an uninsured motor vehicle to be:
a. Not insured by a bodily injury liability bond or policy that is applicable at the
time of the accident;
(…continued)
provisions of the financial responsibility act to the residual liability required under the no-fault
act for more than 30 years. See, e.g., Manier v MIC Gen Ins Corp, 281 Mich App 485, 491-492;
760 NW2d 293 (2008); Lake States Ins Co v Wilson, 231 Mich App 327, 331-332; 586 NW2d
113 (1998); State Farm Mut Auto Ins Co, 226 Mich App at 268; LeDuff v Auto Club Ins Ass’n,
212 Mich App 13, 16; 536 NW2d 812 (1995); Farmers Ins Exchange v Anderson, 206 Mich App
214, 217; 520 NW2d 686 (1994); League General Ins Co v Budget Rent-A-Car of Detroit, 172
Mich App 802, 805; 432 NW2d 751 (1988); Kleit, 153 Mich App at 56; State Farm Mut Auto Ins
Co v Ruuska, 90 Mich App 767, 772; 282 NW2d 472 (1979), citing State Farm Mut Auto Ins Co
v Sivey, 404 Mich 51, 56; 272 NW2d 555 (1978). Given the weight of authorities applying the
financial responsibility act in some way to the no-fault act, we conclude that—even if these
authorities could be said to have improperly applied the financial responsibility act to the
requirements for residual liability under the no-fault act after the 1978 amendment to MCL
500.3131—that determination must be left to our Supreme Court.
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***
c. Insured by a bodily injury liability bond or policy at the time of the accident
issued by a company that is or becomes insolvent;
d. Insured by a bodily injury liability bond or policy which provides less than the
minimum limits required by the Financial Responsibility Law of the State of
Michigan.
e. Covered under a bodily injury liability bond or policy at the time of the
accident, but the sum of all applicable limits of liability for bodily injury is less
than the coverage limit for Underinsured Motorists Coverage shown on the
Declarations Page.
On appeal, Bristol West argues that Long failed to establish that Vincent Berry was
driving an uninsured motor vehicle within the meaning of any of these provisions. With regard
to paragraph “a”, Bristol West relies on the language defining an uninsured motor vehicle to be
one that is not insured by a policy “that is applicable at the time of the accident” (emphasis
added). Bristol West argues that, by referring to an insurance policy that “is applicable at the
time of the accident,” this definition excludes those situations where the motor vehicle was
insured at the time of the accident, even if the insurer under that policy later denies coverage.
That is, Bristol West essentially argues that this Court should construe “is applicable at the time
of the accident” to mean that the motor vehicle was subject to an insurance policy that was “in
existence” or “existing” at the time of the accident without regard to whether the policy actually
“applied” to the accident at issue. We do not agree that this is the proper construction.
This Court must enforce an unambiguous contract provision as written. Rory, 473 Mich
at 470. And when “ascertaining the meaning of a contract, we give the words used in the
contract their plain and ordinary meaning that would be apparent to a reader of the instrument.”
Id. at 464.
If the policy at issue had defined an uninsured motor vehicle as a motor vehicle that is not
insured by a bodily liability policy at the time of the accident, we might agree with Bristol
West’s preferred reading. However, the definition actually used does not define an uninsured
motor vehicle to be one that is not insured by such a policy at the time of the accident, it defines
it to be one that is not insured under a bodily liability policy “that is applicable at the time of the
accident.” That is, a motor vehicle is uninsured unless it is covered by a bodily injury policy and
the policy “is applicable” at the time of the accident. Something “is applicable” if it is capable of
being applied in the appropriate context. In the context of a motor vehicle accident, a liability
policy “is applicable” if the insured is entitled to the protection afforded under the policy. See,
e.g., Lee v State Farm Mut Auto Ins Co, 339 So2d 670, 671-672 (Fla App, 1976); Hodges v
Canal Ins Co, 223 So2d 630, 633 (Miss, 1969) (stating that a policy is applicable when it is
capable of being applied—that is, when the insured is entitled to its protection). Whether an
insured is entitled to the protection afforded under the policy depends on the terms of the policy
at issue and whether the insured complied with those terms. In the present case, Patricia Berry
purchased a liability policy that covered the motor vehicle at issue, but that fact did not mean that
the policy necessarily “applied” at the time of the accident. Rather, in order for the policy to be
applicable, Patricia Berry had to perform all her obligations under the agreement. Until she met
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those obligations, the policy was not applicable. Patricia Berry failed to provide the notice
required under her agreement. Consequently, her insurance policy did not apply to the accident
at issue. Because the motor vehicle driven by Vincent Berry was not insured by a bodily liability
policy that was “applicable at the time of the accident,” it was an uninsured motor vehicle within
the meaning of the policy issued by Bristol West.10
The trial court properly denied Bristol West’s motion for summary disposition on this
basis.11
C. LOSS OF SUBROGATION RIGHTS
Bristol West next argues that the trial court should have granted summary disposition in
its favor given the evidence that Long failed to comply with the insurance policy’s requirement
that she take no actions that prejudice Bristol West’s subrogation rights. Specifically, Bristol
West argues that Long destroyed its subrogation rights by contesting the motion to set aside the
default, which in turn led to the denial of coverage under the Integon policy.
The policy issued by Bristol West provides that Bristol West has the right to recover
payments:
If we make a payment under this policy and the person to or for whom payment
was made has a right to recover damages from another we shall be subrogated to
that right. That person shall do:
1. Whatever is necessary to enable us to exercise our rights; and
2. Nothing after loss to prejudice them.
Under the plain terms of this provision, see Rory, 473 Mich at 464, Bristol West does not
obtain any subrogation rights until it makes “a payment under this policy.” There was no
evidence that Bristol West made the payments necessary to trigger its subrogation rights.
Because Bristol West had no subrogation rights, Long could not “prejudice” or otherwise take
any action “to enable” Bristol West “to exercise” its non-existent rights. Therefore, the trial
10
We reject Bristol West’s contention that Topolewski v Detroit Automobile Inter-Ins Exchange,
6 Mich App 286; 148 NW2d 906 (1967) and Rousso v Mich Ed Employees Mut Ins Co, 6 Mich
App 444; 149 NW2d 204 (1967), support its preferred construction. Neither of those cases
involved a situation where the insurer lawfully denied coverage. Rather, in each case, there was
a valid insurance policy applicable to the car at issue, but the insurers that issued those policies
later became insolvent. Because the policies were nevertheless applicable to the cars involved in
the accidents, this Court determined in both cases that the cars were not uninsured. As we have
noted, Patricia Berry had a policy that covered her car, but her failure to comply with the terms
of that policy rendered it inapplicable to the accident at issue. For that reason, these authorities
are inapplicable to the facts of this case.
11
Given our resolution of this issue, we decline to address whether Vincent Berry’s car might
also have satisfied any of the remaining definitions of an uninsured motor vehicle.
-14-
court did not err when it refused to dismiss Long’s claim for uninsured motorist benefits on the
theory that Long somehow impaired Bristol West’s subrogation rights.
IV. CONCLUSION
The trial court correctly determined that Integon was deprived of a reasonable
opportunity to appear in and defend the underlying tort action. Because Integon could not be
held liable for any judgment in that action under MCL 257.520(f)(6), the trial court did not err
when it granted Integon’s motion for summary disposition in its suit for declaratory relief. The
trial court also correctly determined that Vincent Berry’s car was uninsured within the meaning
of the policy issued by Bristol West. Likewise, the trial court did not err when it failed to grant
Bristol West’s motion on the alternative ground that Bristol West could lawfully deny Long’s
claim for uninsured motorist benefits on the basis of her trial counsel’s decision to contest the
motion to set aside Patricia and Vincent Berry’s default. Therefore, the trial court did not err
when it denied Bristol West’s motion for summary disposition.
Affirmed in all dockets. As the prevailing party in docket nos. 289320 and 289366,
Integon may tax its costs; and, as the prevailing party in docket no. 291175, Long may tax her
costs. See MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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