EDMOND VUSHAJ V FARM BUREAU GEN'L INS CO OF MICHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
March 17, 2009
June 18, 2009
Wayne Circuit Court
LC No. 06-634624-CK
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Advance Sheets Version
Before: Jansen, P.J., and Borrello and Stephens, JJ.
Plaintiff appeals as of right the trial court’s grant of defendant’s motion for summary
disposition. Plaintiff filed suit after defendant denied a claim arising out of a fire at a house
owned by plaintiff. The trial court granted defendant’s motion for summary disposition after
determining that plaintiff was not entitled to coverage because the house in question was vacant
before the fire. We affirm.
I. Standard of Review
This Court reviews a trial court’s ruling on a motion for summary disposition pursuant to
MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
Summary disposition is proper under MCR 2.116(C)(10) when, upon examining the affidavits,
depositions, pleadings, admissions, and other documentary evidence, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Corley v Detroit
Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
II. The Trial Court Properly Determined that no Genuine Issues of Material Fact Existed and
that the House was Vacant and Unoccupied Before the Fire
Plaintiff contends that defendant was not entitled to summary disposition because the
terms “vacant” and “unoccupied” were ambiguous. We disagree.
As our Supreme Court explained in Raska v Farm Bureau Mut Ins Co of Michigan, 412
Mich 355, 362; 314 NW2d 440 (1982):
A contract is said to be ambiguous when its words may reasonably be
understood in different ways.
If a fair reading of the entire contract of insurance leads one to understand
that there is coverage under particular circumstances and another fair reading of it
leads one to understand there is no coverage under the same circumstances the
contract is ambiguous and should be construed against its drafter and in favor of
Yet if a contract, however, inartfully worded or clumsily arranged, fairly
admits of but one interpretation it may not be said to be ambiguous or, indeed,
The mere fact that a term is not defined in a policy does not render that term ambiguous.
Henderson v State Farm Fire and Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). “Rather,
reviewing courts must interpret the terms of the contract in accordance with their commonly used
meanings.” Id. “When determining the common, ordinary meaning of a word or phrase,
consulting a dictionary is appropriate.” Stanton v City of Battle Creek, 466 Mich 611, 617; 647
NW2d 508 (2002). The terms “vacant” and “unoccupied” have commonly used meanings and
are easily understood. According to Black’s Law Dictionary, the term “vacant” means “[e]mpty;
unoccupied.” Black’s Law Dictionary (8th ed). Black’s further notes that “[c]ourts have
sometimes distinguished vacant from unoccupied, holding that vacant means completely empty
while unoccupied means not routinely characterized by the presence of human beings.” Id.
Similarly, Random House Webster’s College Dictionary defines “unoccupied” as “without
occupants” and “occupant” as “a tenant of a house, estate, office, etc.; resident.” Random House
Webster’s College Dictionary (1995). When read in the context of the contract, the terms
“vacant” and “unoccupied” are not ambiguous because a fair reading of the entire contract leads
only to the conclusion that coverage is not available in the present case.
Any reading of the contract results in the conclusion that the purpose of the provision in
question is to protect the insurance company from the increased risk that accompanies insuring a
house that does not have an occupant. Plaintiff’s assertion that a structure must be wholly empty
for the provision to take effect is therefore unpersuasive. When plaintiff’s definitions of the
terms are accepted, absurdity results. For example, a fully furnished house would never be
considered to be vacant, even if no person entered the house for years, simply because the
furniture in the house prevented the structure from being “completely empty.” Because terms
must be interpreted in the context of the contract in which they appear, we conclude that the
terms “vacant” and “unoccupied” mean “not routinely characterized by the presence of human
In applying the commonly understood meanings of “vacant” and “unoccupied” to the
present dispute, it becomes clear that defendant was entitled to summary disposition. When
viewing the evidence in the light most favorable to plaintiff, this Court must accept that no one
had resided in the house from January 2004 until the house was damaged by fire in January
2006. Mr. Nikoll Vushaj would generally spend a night at the home every other week when he
would have an appointment with his doctor. He occasionally cooked food when he was at the
house, but also relied on McDonald’s for his meals. There were no beds in the house and the
elder Vushaj, when he stayed overnight, slept in a sleeping bag that he kept in his car. He
completed light maintenance tasks, such as mowing the lawn and shoveling the snow. These
facts do not result in a conclusion that the house was routinely characterized by the presence of
human beings. Rather, the absence of humans at the house is striking when one considers the
facts. If Mr. Nikoll Vushaj’s testimony is accepted as true, he stayed at the house one night
every other week for two years. Put differently, the elder Vushaj slept at the house
approximately 52 times and slept elsewhere 678 times. Therefore, the trial court properly
granted summary disposition because the contractual language was clear and the application of
that language to the undisputed facts results in the conclusion that defendant was entitled to
judgment as a matter of law.
Plaintiff, also contends that summary disposition was improper under MCR 2.116(C)(10)
because various issues of material fact remain unresolved as to whether the house was neither
vacant nor unoccupied for more than 30 days before the fire. We disagree.
Plaintiff cites five alleged genuine issues of material fact that remain unresolved; the first
of which is whether Nikoll Vushaj was an occupant of the home. The court examined the
deposition testimony of plaintiff and his father, the insurance policy, the adjuster’s reports, and
other properly admitted documentary evidence. After the parties agreed (for the purposes of the
motion) that the elder Vushaj occasionally slept at the house when he had an appointment with a
physician and did some maintenance when he was there, the court determined that it could find
neither evidence of occupancy nor evidence to counter vacancy, as defined in the precedential
cases of Richards v Continental Ins Co of the City of New York, 83 Mich 508; 47 NW 350
(1890). The court also concluded that the offered exception to coverage for unoccupied and
vacant property articulated in Hidalgo v Mason Ins Agency, Inc, unpublished opinion per curiam
of the Court of Appeals, issued June 2, 2005 (Docket No. 260662), was inapplicable because the
elder Vushaj’s visits were not primarily for the purpose of maintaining the home. The finding on
intent related to a policy stipulation in Hidalgo, which was not included in the Farm Bureau
policy before the court. Therefore, while the intent of the elder Vushaj may well raise a question
of fact, that question is not material to this policy. The court properly resolved an issue of law
after accepting as true the facts in the light most favorable to plaintiff. It did not improperly
invade the purview of the finder of fact at trial.
Plaintiff next alleges that genuine issues of material fact exist regarding whether the
house was furnished and was receiving regular mail deliveries. Contrary to plaintiff’s assertions,
the trial court did not make any factual findings regarding whether the house was furnished or
whether mail was delivered there. There is no reason to believe that the trial court failed to view
these facts in the light most favorable to plaintiff. After doing so, the trial court still determined
that the house was vacant or unoccupied. The trial court’s holding reflects the conclusion that
mail deliveries and sparse furnishings are not highly relevant in determining whether a home is
occupied for the purposes of this insurance policy. As discussed earlier, we agree and conclude
that the proper inquiry is whether the home was regularly characterized by human presence. The
trial court’s grant of summary disposition was therefore appropriate.
Plaintiff also contends that there was a genuine issue of material fact regarding whether
defendant was aware that the home was unoccupied at the time that it renewed the insurance
policy. This issue was not raised until plaintiff filed his motion for reconsideration. Where an
issue is first presented in a motion for reconsideration, it is not properly preserved. See ProStaffers, Inc v Premier Mfg Support Services, Inc, 252 Mich App 318, 328-329; 651 NW2d 811
(2002). This Court may review an unpreserved issue if it is an issue of law for which all the
relevant facts are available. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
In the present case, there are no facts on the record regarding defendant’s knowledge of the
home’s occupancy at the time of the policy renewal. Therefore, it would be improper to address
this claim on appeal.
Finally, plaintiff contends that there was a genuine issue of material fact regarding
whether plaintiff and the elder Vushaj intended to occupy the house. Again, while there may be
a question regarding this issue based upon a view of the documents in the light most favorable to
the appellant, the question is not material. The language of the policy indicates that a
policyholder is not entitled to coverage for any loss that occurs “while a described building,
whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of
30 consecutive days.” Availability of coverage under the policy is not based on whether a party
intended to occupy the structure. Coverage is based on whether a party actually occupied a
structure. Therefore, the issue of intent is not material and the trial court properly ruled on the
summary disposition motion before the issue of intent was resolved.
III. The Insurance Policy Does Not Contain Contradictory Provisions Regarding Occupancy
Defendant next contends that summary disposition was improper because the insurance
policy contained contradictory language regarding unoccupied structures. We disagree.
Paragraph 26 of the insurance policy provides that coverage is not available for any loss
that occurs “while a described building, whether intended for occupancy by owner or tenant, is
vacant or unoccupied beyond a period of 30 consecutive days.” Plaintiff contends that this
provision is ineffective because it contradicts language in his renewal documents. Specifically,
plaintiff cites language in the renewal documents that provides, “The provisions requiring
reasonable care to either maintain heat in the building or shut off the water supply and drain all
systems and appliances to prevent freezing will now apply to ALL dwellings, even those
dwellings that are vacant, unoccupied, or being constructed.”
“This Court reads contracts as a whole, giving harmonious effect to each word and
phrase.” Holmes v Holmes, 281 Mich App 575, 596; 760 NW2d 300 (2008). The two
provisions cited by plaintiff can be read in harmony with one another. Paragraph 26 provides
that coverage is not available if a structure has been vacant or unoccupied more than 30 days
immediately before a loss. The provision included with the renewal documents provides that
certain precautions must be taken to prevent the pipes from freezing in a vacant or unoccupied
structure. The provision in the renewal documents does not refer to any specific period.
Therefore, it does not contradict paragraph 26. Taken as a whole, the policy provides that if a
structure is left vacant or unoccupied, certain precautions have to be taken to prevent the freezing
of pipes. However, even if those precautions are taken, no coverage is provided if the structure
remains vacant or unoccupied for a period beyond 30 days.
IV. Plaintiff Failed to Properly Preserve the Issue Relating to Waiver and this Court will not
Consider it on Appeal
Finally, plaintiff contends that defendant waived paragraph 26 of the insurance policy
when it renewed the policy after discovering that the house was unoccupied. As stated above,
where an issue is first presented in a motion for reconsideration, it is not properly preserved. See
Pro-Staffers, Inc, supra at 328-329. This Court may review an unpreserved issue if it is an issue
of law for which all the relevant facts are available. Brown, supra at 599. In the present case,
there are no facts on the record regarding defendant’s knowledge of the home’s occupancy at the
time of the policy renewal. Therefore, it would be improper to address this claim on appeal.
/s/ Kathleen Jansen
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens