GORGES SALMO V STATE FARM FIRE & CAS CO
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STATE OF MICHIGAN
COURT OF APPEALS
GORGES SALMO,
UNPUBLISHED
May 30, 1997
Plaintiff-Appellant,
v
No. 192162
Oakland Circuit Court
LC No. 95-497223 CK
STATE FARM FIRE & CASUALTY,
COMPANY,
Defendant-Appellee.
Before: Saad, P.J., and Hood and McDonald, JJ.
MEMORANDUM.
In this suit on an insurance policy, defendant moved for summary disposition on the basis of
plaintiff ’s failure to comply with a policy provision requiring plaintiff to submit to examination under oath
at the request of the insurer. By its terms, the policy precludes suit thereon unless there has first been
compliance with the policy provisions. At an initial hearing on the motion for summary disposition, the
trial court concluded that a disputed issue of fact, apparently regarding what the attorneys for the parties
said to one another prior to the filing of suit (no transcript of the hearing having been furnished), was
needed to resolve the motion. At the scheduled hearing, plaintiff ’s counsel failed to appear; this was the
second incident in which plaintiff ’s counsel had failed to appear for a scheduled motion hearing, and the
trial court dismissed the action. Plaintiff appeals by right, after having unsuccessfully sought post
judgment relief. This case is being decided without oral argument pursuant to MCR 7.214(E).
This Court considers it unnecessary to determine whether the trial court substantively erred in
dismissing the action for failure of plaintiff ’s counsel to appear for the hearing, because on the facts of
this case such dismissal was without prejudice and does not preclude plaintiff from refiling suit after
compliance with the policy provisions. The insurance policy in question does not provide that lack of
compliance with its provisions shall work a forfeiture; therefore, any failure of compliance prior to the
filing of the initial suit would merely suspend plaintiff ’s right to sue on the policy until compliance is
rendered. 5A Appleman, Insurance Law & Practice, §3549, pp 550-552. The trial court’s action
therefore simply creates a temporary procedural hindrance to plaintiff ’s pursuit of his claim, which as a
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response to plaintiff ’s second failure to appear for a motion hearing is not an abuse of the trial court’s
discretion.
Affirmed.
/s/ Henry William Saad
/s/ Harold Hood
/s/ Gary R. McDonald
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