JEREMY COLE V AUTO-OWNERS INSURANCE COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
JEREMY COLE,
FOR PUBLICATION
August 10, 2006
9:05 a.m.
Plaintiff-Appellee,
v
No. 258002
Washtenaw Circuit Court
LC No. 02-001415-CZ
AUTO OWNERS INSURANCE COMPANY,
Defendant-Appellant.
Official Reported Version
Before: Borrello, P.J., and Saad and Wilder, JJ.
SAAD, J.
Defendant appeals by leave granted the trial court's order that denied its motion for
summary disposition and granted summary disposition to plaintiff. We reverse.
I. Facts and Procedural History
Plaintiff sustained injuries when he was riding a bicycle and was struck from behind by a
vehicle driven by an unidentified driver. Plaintiff sought uninsured motorist benefits from
defendant under a policy issued to his father. The policy provides, in relevant part:
a. We will pay compensatory damages you are legally entitled to recover:
(1) from the owner or operator of any uninsured automobile;
(2) for bodily injury you accidentally sustain and which arises out of the
ownership, maintenance or use of the uninsured automobile when you are a
pedestrian or while occupying an automobile you do not own . . . .
b. The coverage extended in 6.a. above is also afforded to a relative who
does not own an automobile. [Emphasis altered.]
"Pedestrian" is not defined in the policy, and defendant denied coverage and explained that
plaintiff was not a pedestrian within the ordinary meaning of the term because he was riding a
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bicycle at the time of the accident.
compensatory damages.
Thereafter, plaintiff filed this lawsuit to recover
Both parties filed motions for summary disposition pursuant to MCR 2.116(C)(10).
Following oral argument, the trial court granted summary disposition to plaintiff and explained
its ruling as follows:
The definitions of the term "pedestrian" provided by Defendant include a
person who is walking, hiking, going or traveling on foot, walking as
distinguished from traveling by car or cycle, and "a person on foot rather than in a
vehicle." Under one definition—"walking as distinguished from traveling by car
or cycle"—a person using a bicycle is clearly not a pedestrian. However,
applying another definition—a "person on foot rather than in a vehicle"—a person
using a bicycle is a "pedestrian." Because a fair reading under one definition of
"pedestrian" leads to the conclusion that there is no coverage, and another fair
reading under another definition leads one to understand that there is coverage,
the Court agrees with Plaintiff that, under the applicable ordinary and plain
meanings given, the term "pedestrian" is ambiguous. When a contract is
ambiguous, the language must be construed against the drafter. Construing the
term "pedestrian" against Defendant and in favor of coverage, the Court finds that
Plaintiff was a "pedestrian."
The trial court entered the order on September 9, 2004, and, thereafter, this Court granted
defendant's application for leave to appeal the trial court's decision.
II. Analysis
The parties agree that coverage depends on whether plaintiff was a pedestrian at the time
of the accident.1 "The interpretation of an insurance contract is a question of law that we review
de novo." Twichel v MIC Gen Ins Corp, 469 Mich 524, 533; 676 NW2d 616 (2004). As this
Court further explained in Scott v Farmers Ins Exch, 266 Mich App 557, 561; 702 NW2d 681
(2005):
1
This Court reviews de novo a trial court's decision on a motion for summary disposition.
Collins v Comerica Bank, 468 Mich 628, 631; 664 NW2d 713 (2003). A motion for summary
disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v
Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). Summary disposition should be
granted under MCR 2.116(C)(10) if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Babula v Roberson, 212 Mich App 45, 48; 536
NW2d 834 (1995).
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Uninsured motorist coverage is optional and is not mandated by the nofault act. Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 525; 502 NW2d
310 (1993). Accordingly, the policy language governs the coverage and is subject
to the rules of contract interpretation. Id. at 525. We read insurance contracts as
a whole and accord their terms their plain and ordinary meaning. Auto-Owners
Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). We will not
strain to find ambiguity, id. at 567, but we ultimately strive to enforce the
agreement intended by the parties. Engle v Zurich-American Ins Group (On
Remand), 230 Mich App 105, 107; 583 NW2d 484 (1998). A contract is
ambiguous when its words may be reasonably understood in different ways.
Raska v Farm Bureau Mut Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d
440 (1982) (opinion of Coleman, C.J.). If an ambiguous term exists in the
contract, courts should generally construe the term against the contract's drafter,
unless the drafter presents persuasive extrinsic evidence that the parties intended a
contrary result.
If provisions of a contract irreconcilably conflict, the contractual language is ambiguous and the
ambiguous language presents a question of fact to be decided by a jury. Klapp v United Ins
Group Agency, Inc, 468 Mich 459, 467, 469; 663 NW2d 447 (2003). However, contracts are
construed against the drafter only when there is a true ambiguity and the parties' intent cannot be
discerned through all conventional means, including extrinsic evidence. Id. at 470-471.
As noted, the term "pedestrian" is not defined in the policy. Unless otherwise defined,
contractual language is given its plain and ordinary meaning. English v Blue Cross Blue Shield
of Michigan, 263 Mich App 449, 471-472; 688 NW2d 523 (2004). To determine the ordinary
meaning of a term, we may refer to a dictionary. Id. at 472. Importantly, however, a word is not
ambiguous simply because dictionary definitions differ. Koontz v Ameritech Services, Inc, 466
Mich 304, 317; 645 NW2d 34 (2002).
The plain and ordinary meaning of the term "pedestrian," as defined in Random House
Webster's College Dictionary (1997), is "a person who goes or travels on foot." The term
"pedestrian" is not ambiguous, and, under its common meaning, plaintiff was not a pedestrian
under the policy because he was riding a bicycle at the time of the accident.2
2
Though not controlling, we note that, for purposes of the Michigan Vehicle Code, MCL 257.1
et seq., "'[p]edestrian' means any person afoot." MCL 257.39. This definition corresponds with
the dictionary definition of "pedestrian," noted above. See also MCL 257.655 (providing when a
pedestrian may walk on a highway); Bird v Gabris, 53 Mich App 164, 167; 218 NW2d 871
(1974) (holding that a person who attempted to flag down an oncoming vehicle in an effort to
avoid an accident was not a pedestrian within the meaning of MCL 257.655).
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The trial court relied on a definition supplied by defendant that defined "pedestrian" in
part as "a person on foot rather than in a vehicle." That definition clearly does not support the
trial court's conclusion that the term "pedestrian" is ambiguous and that plaintiff was a pedestrian
at the time of the accident. While the term is defined by means of a comparison, the concepts
being compared are not all-inclusive opposites. Further, because the term is not ambiguous, the
trial court incorrectly applied the rule of construction that ambiguous terms must be construed
against the drafter. Klapp, supra at 470-471.
Plaintiff maintains that, within the context of uninsured motorist coverage, "pedestrian"
should be interpreted broadly to include those individuals who are not in or operating motor
vehicles. However, while uninsured motorist coverage had historically been broadly construed
and considered portable when that coverage was mandated by statute, Stoddard v Citizens Ins Co
of America, 249 Mich App 457, 460; 643 NW2d 265 (2002), that statutory mandate was repealed
in 1973 after Michigan adopted no-fault insurance, id. at 460-461. Thus, because the Legislature
enacted the no-fault act and elected not to require uninsured motorist coverage, parties are now
free to contract as they see fit. Therefore, the purpose of the no-fault act, which is to broadly
provide coverage for those injured in motor vehicle accidents without regard to fault, Griffith v
State Farm Mutual Automobile Ins Co, 472 Mich 521, 543; 697 NW2d 895 (2005), does not also
apply to uninsured motorist policies.
Plaintiff further argues that courts in other states have concluded that "pedestrian" means
a person not occupying a vehicle. Plaintiff primarily relies on Tucker v Fireman's Fund Ins Co,
308 Md 69; 517 A2d 730 (1986), but Tucker is clearly distinguishable because the discussion in
Tucker hinged on the interpretation of Maryland's no-fault act. In contrast, our Supreme Court
has unequivocally held that uninsured motorist benefit clauses in Michigan are construed under
ordinary contract principles, not in reference to our no-fault act. Twichel, supra at 533. 3
3
In Tucker, the parties disputed a section of the Maryland Insurance Code that requires insurance
policies to provide personal injury protection (PIP) benefits to cover persons "'injured in any
motor vehicle accident,'" including, but not limited to, "'pedestrians injured in an accident in
which the insured motor vehicle is involved . . . .'" Tucker, supra at 71 (emphasis in second
quotation omitted). In Tucker, the injured plaintiff was sitting on a stool inside a parking lot
attendant's booth when a vehicle struck the booth. Id. at 72. "Pedestrian" was not defined in the
statute, and the plaintiff argued that the legislature intended "pedestrian" to mean those persons
not operating or occupying a motor vehicle. Id. The defendant insurer claimed that the
legislature elected not to define "pedestrian" because the legislature had previously defined
"pedestrian" as "'an individual afoot'" in the transportation article of the Maryland Code, which,
the defendant argued, contained the motor vehicle laws of the state. Id. The defendant
maintained that the two statutes should be construed harmoniously and that the common
meaning of "pedestrian" for purposes of the statute was the same as that defined by the
legislature in the transportation article. Id. at 72-73.
(continued…)
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Plaintiff also claims that the term "pedestrian" should match the definition included in
defendant's uninsured motorist policy written for insureds in Utah. The Utah policy defines
"pedestrian" as "any natural person who is not occupying an automobile." We reject plaintiff 's
contention because the parties here did not agree to the language of the Utah policy and are
clearly not bound by it. See Eerdmans v Maki, 226 Mich App 360, 364; 573 NW2d 329 (1997)
(noting that under the common law, acceptance of the offer must mirror the terms of the offer).
Further, defendant's Utah policy so defines "pedestrian" because, unlike Michigan, Utah requires
insurers to provide uninsured motorist policy coverage, Utah Code Ann 31A-22-302(1)(b), and
specifically defines "pedestrian" essentially the same as defendant does in its Utah policy, Utah
Code Ann 31A-22-301(7).4 If our Legislature concludes that, like the Utah legislature, it will
mandate uninsured motorist coverage as part of Michigan law, it certainly is able to do so and,
like the Utah legislature, it may choose to define various terms. However, in the absence of such
a mandate by our Legislature, there is no legal reason for us to adopt the definitional language
(…continued)
The Tucker court observed that the purpose of the disputed section was to compensate
injured persons without regard to fault. Id. at 75. The court noted that nine jurisdictions had
defined "pedestrian" in their statutes to mean something similar to the New Jersey definition:
"'any person who is not occupying, entering into, or alighting from a vehicle.'" Id. at 76-77
(citation omitted). The court further noted that five other states did not define "pedestrian" in
their no-fault statutes, but the statutes nevertheless provided that "nonoccupants of a motor
vehicle are entitled to recover PIP benefits under certain circumstances." Id. at 77. In finding
that "doubt" existed about the intended meaning of "pedestrian," the court noted that the term
should be liberally construed in light of its clear remedial purpose of the cited insurance statute.
Id. at 77-78. The court, therefore, construed "pedestrian" to mean "all persons not occupying,
entering, or alighting from a motor or other covered vehicle without regard to whether, when
struck, they were actually traveling on foot, standing in a stationary position, sitting, or, as here,
within some structure." Id. at 78.
Unlike the court in Tucker, we cannot construe the term "pedestrian" liberally in order to
effectuate the goals of the no-fault act. Again, uninsured motorist benefit coverage must be
construed without reference to our no-fault act. Twichel, supra at 533. As a result, Tucker does
not support plaintiff 's construction of "pedestrian."
4
Plaintiff maintains that defendant was not allowed to unilaterally change the terms of its
uninsured motorist coverage in 1995 without specifically informing its insureds that the term
"pedestrian" would no longer include those individuals injured while riding a bicycle. Plaintiff
apparently relies on the previous policy to support his conclusion that before the changes became
effective, the parties intended "pedestrian" to also include those individuals on bicycles. It is not
clear from the record whether plaintiff 's father had purchased this previous version of
defendant's policy. Nonetheless, defendant did in fact provide notice of its 1995 policy changes
to its insureds, and it is common practice in the insurance industry for an insurer to reserve the
right to unilaterally change policy terms and then provide notice of the changes to its insureds
along with a brief description of the changes. Accordingly, plaintiff 's argument is without merit.
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used in Utah and urged by plaintiff, particularly when the meaning of the term "pedestrian" is
clear and unambiguous.
For these reasons, the trial court erred when it ruled that "pedestrian" is ambiguous
because the term's ordinary meaning is "a person who goes or travels on foot." Therefore, under
the unambiguous and ordinary meaning of the term, plaintiff was not a pedestrian at the time of
the accident because he was riding a bicycle.5
Reversed.
/s/ Henry William Saad
/s/ Stephen L. Borrello
/s/ Kurtis T. Wilder
5
Though not dispositive, we note that, while plaintiff is not entitled to uninsured motorist
benefits under the policy, he may be able to seek personal protection insurance benefits from the
Assigned Claims Facility created by the no-fault act, see MCL 500.3172; Moore v Secretary of
State, 73 Mich App 299, 300; 251 NW2d 564 (1977) (injured bicyclist struck by hit-and-run
driver obtained benefits from the Assigned Claims Facility).
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