LUANN M DANCEY V TRAVELERS PROPERTY CASUALTY CO OF AMERICA
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STATE OF MICHIGAN
COURT OF APPEALS
LUANN M. DANCEY,
FOR PUBLICATION
April 6, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 288615
Oakland Circuit Court
LC No. 2007-087059-CK
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Defendant-Appellant.
Before: TALBOT, P.J., and O’CONNELL and DAVIS, JJ.
O’CONNELL, J.
Defendant Travelers Property Casualty Company of America (Travelers) appeals by
leave granted from an August 27, 2008, order of the Oakland Circuit Court denying its motion
for summary disposition. For slightly different reasons than those articulated by the trial court,
we affirm the denial of the motion for summary disposition and remand this case back to the trial
court for further proceedings consistent with this opinion. This appeal is being decided without
oral argument pursuant to MCR 7.214(E).
I. OVERVIEW
On November 2, 2004, plaintiff Luann M. Dancey was involved in a single-vehicle
accident after hitting a ladder lying in the roadway. In November 2007, plaintiff filed a
complaint seeking uninsured motorist (UIM) benefits from defendant under a policy issued to
Maryland Electric Company, Inc. (Maryland Electric). Defendant moved for summary
disposition on two grounds: (1) plaintiff was not an “insured” as that term is defined by the
policy for purposes of UIM coverage, and (2) there was no evidence that the accident in question
was caused by the driver of an “uninsured motor vehicle.” The trial court denied defendant’s
motion, ruling that the vehicle that plaintiff was driving at the time of the accident, a 2004 GMC
Envoy, was covered by the policy and that there was at least a genuine issue of fact whether the
driver of an uninsured vehicle caused the accident.
On appeal, defendant argues that an “insured” for purposes of UIM coverage is limited to
anyone occupying a vehicle owned by Maryland Electric. Because Maryland Electric did not
own or lease the Envoy, plaintiff was not entitled to coverage. Defendant also argues that based
upon case law and the lower court record, no evidence exists that this accident was caused by the
driver of an “uninsured motor vehicle.”
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We agree with the trial court that there exists a question of fact regarding whether this
accident was caused by the driver of an “uninsured motor vehicle.” However, while we disagree
with the trial court that plaintiff has “conclusively” established that plaintiff is a named insured,
we conclude that there exists a question of fact whether plaintiff is a named insured as that term
is defined in defendant’s policy. Therefore, for slightly different reasons, we affirm the decision
of the trial court. We remand this case back to the trial court for further proceedings consistent
with this opinion.
II. FACTS
A. THE INSURANCE POLICY
Plaintiff is the former wife of David Dancey; the couple divorced in August 2007. David
was employed by Maryland Electric, a company that was owned by his parents and a third
person. Defendant had issued a commercial automobile policy to Maryland Electric covering the
2004 calendar year.
The policy at issue covers eight private passenger vehicles and 48 trucks, but they are not
individually identified by year, make, or model. Rather, covered autos are identified by a
symbol corresponding to the type of coverage available. Specifically, “[t]he symbols entered
next to a coverage on the Declarations designate the only ‘autos’ that are covered ‘autos.’” The
policy also contains a UIM endorsement, which provides in part:
We will pay all sums the “insured” is legally entitled to recover as compensatory
damages from the owner or driver of an “uninsured motor vehicle.” The damages
must result from “bodily injury” sustained by the “insured” caused by an
“accident.” The owner or driver’s liability must result from the ownership,
maintenance or use of the “uninsured motor vehicle.”
Plaintiff had previously owned a GMC Yukon. In January 2004, David leased a 2004
GMC Envoy from the Pat Moran Oldsmobile dealership (the dealership) as a replacement
vehicle for the Yukon. Plaintiff notified her insurance agent that the Yukon was being replaced
with the Envoy. The lease that David signed with the dealership indicates that the Envoy was
covered under defendant’s policy. Plaintiff testified that Maryland Electric indirectly purchased
vehicles for certain employees by giving them a monthly car allowance and that the employees,
as well as their spouses, were covered under the company’s insurance policy with defendant.
She further testified that she was required to sign a written lease agreement with Maryland
Electric under which the Envoy, which was titled in plaintiff’s name, was leased to Maryland
Electric, thereby bringing the car and herself under the umbrella of defendant’s insurance policy.
Plaintiff also produced a certificate of insurance that named both herself and Maryland Electric
as insured parties under the policy issued by defendant. Plaintiff testified that “she was actually
a named insured” because the certificate of insurance for the Envoy identified plaintiff as an
insured.
After the trial court denied defendant’s motion for summary disposition, and before this
Court granted leave to appeal, the trial court allowed the parties to reopen discovery. The parties
took the deposition of plaintiff’s insurance agent, Rodney Grawel, who is the general manager of
Valenti Trobec Chandler, the insurance agency that sold the policy to Maryland Electric. Grawel
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testified that Maryland Electric had insured plaintiff’s Envoy under a policy that it had with
Travelers. Grawel testified that in January 2004, he processed a change request with Travelers to
remove the Yukon from the policy, add the Envoy to the policy, and add plaintiff as a named
insured to the policy. He also testified that as part of the process of incorporating the Envoy into
the insurance policy, Maryland Electric would have to acquire an insurable interest in the
vehicle, which would be accomplished when plaintiff signed a leaseback agreement for the
Envoy with Maryland Electric. No leaseback agreement between Maryland Electric and plaintiff
was produced at the motion for summary disposition.1
B. THE ACCIDENT
On November 2, 2004, plaintiff was driving the Envoy when she was involved in an
accident at the interchange of I-696 and I-75 in Royal Oak. She entered eastbound I-696 at or
near I-75 and gradually moved toward the far left lane. In this area I-696 rises far above I-75,
and noise mitigation and retaining walls line the roadway on either side of the interchange. It is
not an area that pedestrians or other non-vehicular traffic can enter. Access to the overpass, in
essence, is limited to motor vehicles.
When plaintiff was in the center left lane or far left lane, she noticed a “huge steel
construction ladder partially opened” angled across the entire lane. Plaintiff had not seen it
earlier because her view was obstructed by another vehicle. Plaintiff “had a split second to make
a decision do I try to run over or do I swerve.” She opted to try to avoid the ladder and pulled
sharply to the right, but was unable to avoid the ladder completely. Plaintiff lost control of the
car, the “front left tire blew,” and the car rolled over. The area where the accident occurred was
not under construction and none of the evidence presented suggests how long the ladder had
been in the road, how it came to be there, or who was responsible for leaving it there.
Plaintiff argues that because she is a named insured under defendant’s policy and her
vehicle is leased to Maryland Electric, both the vehicle and plaintiff are covered under the
policy. Furthermore, she contends, since the ladder fell from another vehicle that could not be
identified, this accident is covered under the UIM endorsement to the policy.
III. ANALYSIS
As we have previously stated, defendant moved for summary disposition on two grounds:
(1) plaintiff was not an “insured” as that term is defined by the policy for purposes of UIM
coverage,2 and (2) there was no evidence that the accident was caused by the driver of an
“uninsured motor vehicle.” The trial court denied defendant’s motion on both grounds, ruling
1
We make no determination whether such a leaseback agreement exists and leave that decision
to the factfinder.
2
In particular, defendant argued that an “insured,” for purposes of UIM coverage, was limited to
anyone occupying a vehicle owned by Maryland Electric. Because Maryland Electric did not
own or lease the Envoy, plaintiff was not entitled to coverage.
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that the Envoy was covered by the policy and that there was at least a genuine issue of fact
concerning whether the accident was caused by the driver of an uninsured vehicle.
A. STANDARDS OF REVIEW AND BASIC PRINCIPLES OF INSURANCE CONTRACT
INTERPRETATION
We review the trial court’s ruling on a motion for summary disposition de novo. Gillie v
Genesee Co Treasurer, 277 Mich App 333, 344; 745 NW2d 137 (2007). The construction and
interpretation of an insurance policy and whether the policy language is ambiguous are questions
of law, which we also review de novo on appeal. Henderson v State Farm Fire & Cas Co, 460
Mich 348, 353; 596 NW2d 190 (1999).
“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of
law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing a
motion under MCR 2.116(C)(10), we consider the pleadings, admissions, affidavits, and other
relevant record evidence in the light most favorable to the nonmoving party to determine whether
any genuine issue of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App 618,
621; 689 NW2d 506 (2004). “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West, supra.
“An insurance policy is much the same as any other contract. It is an agreement between
the parties in which a court will determine what the agreement was and effectuate the intent of
the parties.” Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992).
“The policy application, declarations page of the policy, and the policy itself construed together
constitute the contract.” Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708,
715; 706 NW2d 426 (2005). An insurance contract should be read as a whole, with meaning
given to all terms. Id. A clear and unambiguous contractual provision is to be enforced as
written. Coates v Bastian Bros, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007). “Clear
and unambiguous language may not be rewritten under the guise of interpretation,” South
Macomb Disposal Auth v American Ins Co (On Remand), 225 Mich App 635, 653; 572 NW2d
686 (1997), and “[c]ourts must be careful not to read an ambiguity into a policy where none
exists,” Auto-Owners Ins Co v Harvey, 219 Mich App 466, 469; 556 NW2d 517 (1996). A
contract is ambiguous when two provisions “irreconcilably conflict with each other,” Klapp v
United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003), or “when [a term] is
equally susceptible to more than a single meaning,” Lansing Mayor v Pub Service Comm, 470
Mich 154, 166; 680 NW2d 840 (2004) (emphasis in original). “However, if a contract, even an
inartfully worded or clumsily arranged contract, fairly admits of but one interpretation, it may
not be said to be ambiguous or fatally unclear.” Michigan Twp Participating Plan v Pavolich,
232 Mich App 378, 382; 591 NW2d 325 (1998).
B. WHETHER PLAINTIFF IS AN INSURED
The UIM endorsement obligates defendant to pay those sums that an “insured” is entitled
to recover from the driver of an uninsured vehicle. Although the Business Auto Coverage Form
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defines the term “insured,” that definition is modified for purposes of the UIM endorsement. If
the named insured identified in the declarations is a company or some other organization, i.e.,
not an individual, an “insured” is defined, in pertinent part, as follows:
Anyone “occupying” a covered “auto” or a temporary substitute for a covered
“auto”. The covered “auto” must be out of service because of its breakdown,
repair, servicing, “loss” or destruction.
For purposes of UIM coverage, a covered “auto”3 is identified by the symbol “2,” which is
described in the Business Auto Coverage Form as follows:
OWNED “AUTOS” ONLY. Only those “autos” you own (and for Liability
Coverage any “trailers” you don’t own while attached to power units you own).
This includes those “autos” you acquire ownership of after the policy begins.
The term “you,” as defined in the policy, refers to “the Named Insured as shown in the
Declarations.” Thus, an “insured” for purposes of UIM coverage is a person who is occupying
an auto owed by the named insured, i.e., Maryland Electric.
Defendant claims that because the Envoy occupied by plaintiff was owned by the
dealership and leased to plaintiff’s then-husband David, it was not owned by the named insured
and was not covered by the UIM endorsement. Because plaintiff was not occupying a covered
auto, she was not an insured for purposes of receiving UIM benefits.
Plaintiff did not specifically dispute defendant’s reading of the relevant policy terms.
Rather, she noted that the policy included an endorsement for leased vehicles, that there existed a
leaseback agreement, a certificate of insurance naming her as a named insured, and a policy
change request that added the Envoy to the policy and named her as an additional insured.
Therefore, plaintiff claimed, she qualified as an insured for the purpose of entitlement to UIM
benefits. The crux of plaintiff’s argument was that despite what the policy said, “she was
actually a named insured” on the policy because her insurance agent had added both her and the
Envoy to the policy.
At oral argument on the motion for summary judgment, defendant asserted that there was
case law indicating that the insurance certificate was not controlling and submitted copies of the
relevant cases to the court. Plaintiff responded that defendant had already paid her benefits
under the policy and if defendant paid benefits, she must be an insured. The trial court ruled, in
pertinent part, as follows:
The Court finds that the Envoy is a covered vehicle under the policy. Under the
policy, Maryland Electric is listed as the insured and the vehicle listed is the
3
The term “auto” refers to a motor vehicle. There is no dispute that the Envoy is an “auto.”
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Envoy at issue, Plaintiff’s Exhibit D.[4] Under section B-2 of the policy, an
insured includes anyone occupying a covered auto.
Here, Plaintiff was occupying a covered auto. Further, on the certificate of
insurance issued by the State of Michigan for the Envoy at issue, the insureds are
listed as Maryland Electric Company and Luann Dancey, Plaintiff.
Now, counsel, you did provide me with two cases that say that an insurance
certificate is not an insurance policy, but then you also bring up the fact that
they’re covering her now under no fault.
[Defense counsel]: Your Honor, I don’t admit that. I don’t admit that. He
brought that up today, and there’s no – I just – I can’t admit it on the record. I –
The Court: (Interposing) Okay. All right.
We conclude that the trial court erred in conclusively finding that the Envoy was a
covered auto, thus making plaintiff an insured under the UIM endorsement. However, we also
conclude that the trial court reached the right result with regard to its denial of summary
disposition on this point, albeit for the wrong reasons. See Etefia v Credit Technologies, Inc, 245
Mich App 466, 470; 628 NW2d 577 (2001). Based on the facts of this case as set forth in the
lower court record, there remain questions of fact regarding whether plaintiff is a named insured
and whether this policy provides UIM benefits for plaintiff.
C. WHETHER THE ACCIDENT WAS CAUSED BY THE DRIVER OF AN “UNINSURED
MOTOR VEHICLE”
UIM benefits are only available if plaintiff was injured in an accident with the driver of
an “uninsured motor vehicle” and that driver’s liability results from the ownership, maintenance,
or use of the “uninsured motor vehicle.” An “uninsured motor vehicle” is defined in part to
include any land motor vehicle, i.e., “auto,”
[t]hat is a hit-and-run vehicle and neither the driver nor owner can be identified.
The vehicle must hit, or cause an object to hit, an “insured,” a covered “auto” or a
vehicle an “insured” is “occupying.” If there is no direct physical contact with the
hit-and-run vehicle, the facts of the “accident” must be corroborated by competent
evidence, other than the testimony of any person having a claim under this or any
similar insurance as the result of such “accident.”
4
The exhibit referenced consisted of various pages of the policy. As previously noted, the policy
did not describe any of the covered vehicles by year, make, or model, and the pages submitted by
plaintiff do not do so either. They certainly do not refer specifically to the Envoy. In this regard,
we find that a question of fact exists regarding whether the Envoy is listed as one of the eight
private passenger vehicles covered by the policy.
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Defendant claims that in order for the hit-and-run vehicle to “cause an object to hit”
plaintiff’s vehicle, there must be a physical nexus between the hit-and-run vehicle and the object.
Defendant argues that because no one could affirmatively state that the ladder fell off another
vehicle, only speculation would permit a jury to conclude that there was any nexus between the
ladder and the hit-and-run vehicle, and speculation is insufficient to establish a genuine issue of
fact. Plaintiff argues that there was no other logical explanation for how the ladder came to be in
the roadway, given that the area was not under construction, was not open to pedestrian traffic,
and was not beneath an overpass from which a ladder could have fallen. Further, the language
used in defendant’s policy differs from that involved in the various cases cited by defendant.
The trial court ruled, in pertinent part, as follows:
Now, as to the uninsured motorist claim, the Court finds that to recover under this
endorsement there must be a causal connection, a substantial physical nexus
between the hit and run vehicle and Plaintiff’s vehicle for Plaintiff to recover.
And proof of a substantial connection with a disappearing vehicle, and in this case
Plaintiff alleged that the ladder she hit must have dropped off another vehicle, is
required for recovery under the uninsured motorist endorsement.
If there’s no direct physical contact with a hit and run vehicle, as in this case, the
Plaintiff is required to show a connection between the ladder, the alleged
disappearing vehicle, which must be corroborated by competent evidence.
Here, the Plaintiff has provided evidence whereby a jury could find it more likely
than not that the ladder came from a disappearing vehicle, which is sufficient to
Plaintiff to maintain her claim for uninsured motorist benefits under her policy.
In several cases, this Court has addressed issues arising from coverage of accidents in
which an object was alleged to have come from an unidentified vehicle. In Kersten v Detroit
Automobile Inter-Ins Exch, 82 Mich App 459; 267 NW2d 425 (1978),5 the plaintiff was driving
when she struck “an unidentified truck tire spinning in front of her on the passing lane of the
highway.” Id. at 463. The policy at issue required that the plaintiff’s injuries be caused by the
ownership, maintenance, or use of an uninsured motor vehicle and defined an uninsured motor
vehicle to include a “hit-run” motor vehicle. Id. A “hit-run” vehicle was, in turn, defined as “a
motor vehicle which causes bodily injury to an insured arising out of physical contact of such
vehicle with the insured or with a vehicle” occupied by the insured. Id. (emphasis in original).
Given that the tire was mounted on a rim, that the tire was spinning, and that “the accident
occurred on a limited access highway which was completely fenced on both sides and where
pedestrians or nonmotorized vehicles are rarely found,” the Court determined that it was not
clear error for the trial court to conclude that the tire had recently fallen from a passing vehicle.
Id. at 467-468. The Court further noted that despite the requirement that there be physical
5
Because Kersten was issued before November 1, 1990, it is not binding on this Court. MCR
7.215(J)(1).
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contact between the two vehicles, courts from other jurisdictions had held that indirect contact is
sufficient in certain circumstances:
Recovery is permitted where the evidence discloses a direct causal connection
between the hit-and-run vehicle and plaintiff’s vehicle and which connection
carries through to the plaintiff’s vehicle by a continuous and contemporaneously
transmitted force from the hit-and-run vehicle. For example, the intermediate
vehicle cases [in which the hit-and-run driver strikes a vehicle, which is then
propelled into the insured vehicle] . . . are explained because there is evidence of a
simultaneous causal connection. Similarly, in the propelled object cases . . . ,
there is a direct causal connection by means of a continuous and
contemporaneously transmitted force. Further, in such cases there is convincing
evidence of a hit-and-run vehicle. But where a tire or a trunk or other piece of
cargo lying on the highway is struck and, unlike the propelled stone cases, there is
no clear testimony but only an inference of a contemporaneous and continuing
propulsion of the object from a disappearing hit-and-run vehicle, recovery is
denied. The chain of causation is stretched too thin and is too speculative. [Id. at
471-472 (footnote omitted).]
Given that, the Court held that the plaintiff was not entitled to UIM coverage because even
though the facts permitted an inference that the tire came from a passing vehicle, they
[did] not show a clearly definable beginning and ending of a contemporaneously
occurring chain of events. Nothing links the tire and rim with the hit-and-run
vehicle except an inference drawn from the presence of a spinning tire and rim on
the road. Both the intermediate vehicle cases and the propelled object cases
require clearly definable or objective evidence (rather than inferential evidence)
of a link between a disappearing vehicle and plaintiff’s vehicle. [Id. at 472.]
In Adams v Zajac, 110 Mich App 522; 313 NW2d 347 (1981),6 a truck tire and rim
assembly were lying in the middle of an expressway. Id. at 525. The plaintiff’s decedent either
struck the tire or swerved to avoid it, lost control of his vehicle, and crashed. Id. A motorist
driving in front of the decedent, who had successfully swerved to avoid the tire, stated that
before coming upon the tire, he saw a flatbed tractor-trailer parked along the freeway where he
first observed the tire. Id. at 525-526. The tractor-trailer was pulling away from the scene where
the accident occurred. Id. at 526. The plaintiff sought recovery under MCL 257.1112,7 which
requires “physical contact between the unidentified vehicle and a vehicle occupied by the
claimant as a condition precedent to suit.” Id. The Adams Court distinguished Kersten on the
6
Because Adams was issued before November 1, 1990, it is also not binding on this Court.
MCR 7.215(J)(1).
7
MCL 257.1112 is designed “to provide a remedy to the victim of an unidentified hit-and-run
driver.” Adams, 110 Mich App at 526. Because it is remedial in nature, it is liberally construed.
Id.
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ground that MCL 257.1112 did not specifically require “a continuous and contemporaneously
transmitted force from the hit-and-run vehicle.” Id. at 528. It then held “that the ‘physical
contact’ takes place when a vehicle or an integral part of it comes into physical contact with
another vehicle.” Id. It did not matter whether the part was “still attached or comes to rest after
being detached from the vehicle . . . ,” although the Court also admitted that “in the latter case it
might present some difficulties . . . in carrying the burden of proof.” Id. at 527-528. The Court
concluded, “[i]nferential evidence rather than objective evidence is enough to establish a link
between a disappearing vehicle and plaintiff’s vehicle.” Id. at 529.
In Hill v Citizens Ins Co of America, 157 Mich App 383; 403 NW2d 147 (1987),8 the
plaintiff’s decedent was driving on a state highway when a large camper passed him going in the
opposite direction. Id. at 384-385. A rock “came through the windshield just as the camper
passed” decedent’s vehicle. Id. Plaintiff, decedent’s wife, was also in the car and claimed that
the camper had caused the rock to become airborne. Id. Defendant had no evidence to refute
this claim. Id. at 385. The policy in question provided UIM benefits in accidents involving hitand-run vehicles and included the same physical contact requirement as in Kersten. Id. The Hill
Court held that an object propelled by the unidentified vehicle into the insured vehicle is
sufficient to satisfy the “physical contact” requirement as long as there is “a substantial physical
nexus between the disappearing vehicle and the object cast off or struck.” Id. at 394. The fact
that the rock came through the windshield just as the camper went by was sufficient to establish
such a nexus. Id.
In Berry v State Farm Mut Automobile Ins Co, 219 Mich App 340; 556 NW2d 207
(1996), the plaintiff drove over an object that was lying in the road in front of her, causing her to
lose control of her vehicle. Id. at 343. She had been unable to avoid the object because a car
was passing by in the opposite direction. Id. She had not seen any traffic ahead of her. Id.
However, shortly before the accident, a witness had seen a truck, which was hauling a trailer
filled with scrap metal, stopped on the side of the road approximately half a mile from the
accident site. Id. The trailer was open, with two-to-three foot sides, and a man was standing by
the trailer looking at the load. Id. The witness then saw a piece of metal in the road at the
accident site, which had not been there when the witness had passed by 10 or 15 minutes earlier.
Id. at 343-344. The accident occurred approximately ten minutes later. Id. at 344. The policy in
question provided UIM benefits involving hit-and-run vehicles and required that the hit-and-run
vehicle strike the insured or a vehicle occupied by the insured. Id. at 342.
The Berry Court held that the presence of scrap metal in the truck trailer “at a time and
location that was temporally and spatially proximate to plaintiff’s striking a piece of metal in the
road” was sufficient to establish “a substantial physical nexus between the hit-and-run vehicle
and the object struck by plaintiff . . . .” Id. at 350. Further, given the conflict between Kersten
and Adams regarding the necessity of “a continuous and contemporaneously transmitted force
from the hit-and-run vehicle” to the insured vehicle, the Berry Court held that “the presence of a
8
Because Hill was issued before November 1, 1990, it is not binding on us. MCR 7.215(J)(1).
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‘continuous and contemporaneously transmitted force’ is a significant, but not dispositive, factor
to be considered in indirect contact cases in determining whether the requisite substantial
physical nexus has been established.” Id. at 350-351. Although there was no such evidence in
the Berry case, there was testimony providing the “convincing and objective evidence of a hitand-run vehicle in the absence of a continuous and contemporaneously transmitted force.” Id. at
351. The witness’s testimony “establishe[d] a continuous sequence of events with a clearly
definable beginning and ending, resulting in plaintiff’s coming into contact with the piece of
metal.” Id.
The distinguishing feature between our case and cases like Berry, Hill, and Adams is that
in those cases, there was objective and convincing evidence of another unidentified vehicle that
could have been the source of the object that made contact with the insured vehicle. In Adams,
there was a truck stopped in the same area of the road where the truck tire was located. In Hill,
there was a camper passing by at the same moment the rock was sent flying. In Berry, the only
case that is binding on this Court, there was a truck hauling scrap metal just down the road from
the accident site and a piece of scrap metal in the road at the accident site. This case is more like
Kersten, in that there was an object in the road and circumstantial evidence that it could have
come from a vehicle, but no objective evidence of any vehicle in the area that could have been
the source of the ladder.
Plaintiff testified that she did not see the ladder fall off a vehicle. She testified that she
saw a vehicle in front of her in the center left lane just before she came upon the ladder, but this
vehicle blocked her view of the ladder and thus was not the source of the ladder. Plaintiff also
stated that there might have been another vehicle in front of her that changed lanes just before
she noticed the ladder. That vehicle did not drop the ladder but successfully avoided it. She
recalled someone at the scene mentioning a truck, but she could not say if that person “said that
they saw it fall or if it was a truck. I remember everyone said it was a truck but I don’t know if
anyone specifically saw the truck or not.” In other words, people were speculating that the
ladder must have come from a truck. None of the witnesses could connect the ladder to any
passing vehicle.9
Defendant’s policy is somewhat different from those at issue in Kersten and Hill and
from the statute at issue in Adams, because rather than requiring direct physical contact between
an unidentified vehicle and the insured’s vehicle, it provides that coverage is available in two
9
Panels of this Court have held, in unpublished cases, that absent evidence of an actual vehicle
that is the source of the object in the road, a “substantial physical nexus” between the
unidentified vehicle and the object struck is not established. See, e.g., Kerr v Citizens Ins Co of
America, unpublished opinion per curiam of the Court of Appeals, issued January 22, 2008
(Docket No. 273319) (bale of hay in the road, no evidence of any vehicle seen in the area from
which it could have fallen); Girodat v Automobile Club Ins Ass’n, unpublished opinion per
curiam of the Court of Appeals, issued March 4, 1997 (Docket No. 194688) (tire lying in the
road, no evidence of any vehicle seen in the area from which it could have fallen). Because these
cases are unpublished, they are not binding on us.
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situations: (1) where there is vehicle-to-vehicle contact (direct physical contact); and (2) where
the unidentified vehicle causes an object to hit the insured’s vehicle (indirect physical contact).
It is undisputed that plaintiff’s car was not hit by another car. Further, there was no evidence that
another vehicle caused the ladder to hit plaintiff’s car. Even if the phrase “cause an object to hit”
was not limited to instances of a direct and immediate connection between the unidentified
vehicle and the object, as in Hill, but could be interpreted to include instances of an indirect and
intermediate connection between the unidentified vehicle and the object, as in Berry, there was
still no evidence of another vehicle in the area that was carrying a ladder at or near the time of
the accident.
If this were the only evidence presented below, we would reverse the trial court.
However, this case is factually distinguishable from the cases cited above. Plaintiff presented
evidence of the location of the accident, which supports an inference that the ladder in question
must have fallen off another vehicle. This accident occurred at the intersection of I-696 and I-75
in Royal Oak. In the location where the accident occurred, the freeway on which plaintiff was
operating her vehicle, I-696, rises high above another freeway, I-75. Exhibit 1 of plaintiff’s
brief, which we reproduce here, depicts the area as follows:
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The accident site is inaccessible to pedestrians and non-vehicular traffic. Other witnesses
testified that no construction was taking place in the area at the time of the accident. The trial
court concluded that “someone just didn’t walk down the expressway . . . carrying a ladder and
drop it off,” and noted, “I don’t think it dropped from an airplane.” Upon viewing the aerial
photograph of the crash site, it is obvious that this accident occurred high above the ground in an
area that is only accessible to motor vehicles. A reasonable juror could conclude that there is no
reasonable explanation for the presence of a ladder in the middle of an overpass soaring high
above Royal Oak and inaccessible to non-vehicular traffic except that the ladder must have fallen
off a vehicle. Accordingly, a reasonable juror could conclude that the presence of a ladder in the
roadway, under these circumstances and in the absence of any other reasonable explanation for
the ladder’s presence, established a “substantial physical nexus” between a hit-and-run vehicle
and the ladder struck by plaintiff.
Further, Berry, which is the only case that is binding on us, does not preclude us from
considering the unique location of this accident in determining that a question of fact exists in
this case. The Berry holding simply discussed a scenario in which the Court determined that a
“substantial physical nexus” was established by the proofs. See Berry, 219 Mich App at 350.
This case does not require us to establish an affirmative link between a particular hit-and-run
vehicle and the ladder lying in the roadway. And although the evidence does not establish an
identifiable vehicle from which the ladder might have fallen, the evidence also permits a
reasonable person to eliminate all reasonable sources for the presence of the ladder except one:
the ladder fell off a vehicle (such as a work truck). Berry does not preclude us from considering
whether evidence of an accident’s location creates a question of fact with regard to whether a
substantial physical nexus exists between the ladder and an unidentified hit-and-run vehicle.
Although we find Kersten, Adams, and Hill useful to reflect on when considering the
circumstances under which a “substantial physical nexus” can exists, these cases are not binding
on us and do not require us to adopt a different outcome.
Although some degree of speculation is necessary to determine exactly how this ladder
arrived at its location, we conclude that, based on the unique set of facts in this case, such
speculation is not impermissible. In fact, we believe that such speculation does not surpass the
level of speculation permitted by the Berry Court when finding that a reasonable juror could
conclude that the metal found in the roadway had fallen from a truck that a witness saw in the
vicinity of the accident approximately 15 minutes before the accident.
We affirm the denial of the motion for summary disposition and remand this case to the
trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
/s/ Alton T. Davis
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