THOMAS SOLVENT CO V AUTO OWNERS INS COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
THOMAS SOLVENT COMPANY, THERMOCHEM, INC., TSC TRANSPORTATION
COMPANY, THOMAS DEVELOPMENT
COMPANY, THOMAS SOLVENT COMPANY
OF DETROIT, THOMAS SOLVENT COMPANY
OF MUSKEGON, INC., THOMAS SOLVENT
INC. OF INDIANA, RICHARD E. THOMAS and
May 19, 1998
Calhoun Circuit Court
LC No. 90-002779 CK
CONTINENTAL CASUALTY COMPANY,
UNITED STATES FIDELITY AND GUARANTY
AUTO-OWNERS INSURANCE COMPANY,
AETNA INSURANCE COMPANY, GREAT
AMERICAN SURPLUS LINES INSURANCE
COMPANY, ADMIRAL INSURANCE COMPANY,
FIRST STATE INSURANCE COMPANY,
GUARANTY NATIONAL INSURANCE COMPANY,
GIBRALTAR CASUALTY COMPANY, HARTFORD
ACCIDENT & INDEMNITY COMPANY,
NORTHSTAR RE-INSURANCE COMPANY,
CANADIAN UNIVERSAL INSURANCE COMPANY,
NORTHBROOK EXCESS & SURPLUS INSURANCE
COMPANY and ST. PAUL FIRE & MARINE
Before: Neff, P.J., and O’Connell and Young, Jr., JJ.
In this declaratory judgment action, plaintiffs appeal as of right from the final judgments entered
in favor of defendants Continental Casualty Company (Continental) and United States Fidelity and
Guaranty Company (USF&G). Continental and USF&G have filed cross appeals. We affirm.
Plaintiffs challenge the trial court's findings of fact and conclusions of law regarding whether
plaintiffs met their burden of proof in proving the terms of certain missing insurance policies. Plaintiffs
argue that the trial court erred as a matter of law by applying the wrong legal standard with regard to the
quantum of proof necessary to prove the terms of the missing policies. Plaintiffs also challenge the trial
court's ultimate findings of fact. Plaintiffs' challenge regarding the quantum of proof required by the trial
court involves a question of law, which we review de novo. In re Rupert, 205 Mich App 474, 479;
517 NW2d 794 (1994). A trial court's findings of fact after a bench trial are reviewed for clear error.
MCR 2.613(C). A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court on the entire record is left with a definite and firm conviction that a mistake has been
made. Andrews v Pentwater Twp, 222 Mich App 491, 493; 563 NW2d 713 (1997).
We agree with the trial court that plaintiffs failed to prove the relevant terms of coverage that
applied to the missing policies. The evidence indicated that plaintiffs' policies could have resulted from
numerous different forms, endorsements and schedules. The trial court found that it was unable to
determine the terms of plaintiffs' policies from the evidence produced. The trial court further found that
it would have been pure speculation to conclude that defendants' policies provided coverage in this
case. The trial court's finding that plaintiffs did not sufficiently prove the terms of the missing policies is
not clearly erroneous.
We also reject plaintiffs’ claim that the trial court erred as a matter of law by refusing to follow
this Court's decision in LeVere v Aetna Cas & Surety Co, 208 Mich App 622; 528 NW2d 838
(1995). Plaintiffs contend that, under LeVere, they satisfied their burden of proving the essential terms
and conditions of any policies they held with defendants Continental and USF&G. We disagree and
find that this case is factually distinguishable from LeVere. The insurance questions in this matter are far
more complex than those involved in LeVere. Furthermore, LeVere involved a motion for summary
disposition, not findings of fact after a trial. For these reasons, the trial court did not err when it failed to
reach the same result as in LeVere.
We believe that this case is more analogous to Star Steel Supply Co v United States Fidelity
& Guaranty Co, 186 Mich App 475; 465 NW2d 17 (1990), which supports the trial court’s ruling.
As in Star Steel, plaintiffs were able to show that they had some form of insurance coverage during the
years in question, but were unable to demonstrate the terms of any policies it may have had with
defendants Continental and USF&G. The trial court correctly concluded that plaintiffs failed to sustain
their burden of proving the terms of the policy and that any judgment in plaintiffs’ favor would be based
on pure speculation. Id. at 481.
Finally, we conclude that the trial court properly granted summary disposition to defendant
USF&G on the policies plaintiffs were able to produce for 1976 through 1978, based upon the parties'
In light of our disposition of the foregoing issues, it is unnecessary to address the arguments
raised by defendants in their cross appeals.
/s/ Janet T. Neff
/s/ Peter D. O’Connell
/s/ Robert P. Young, Jr.