SHERYAL A GARRISON V LARRY CONKLIN JR
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STATE OF MICHIGAN
COURT OF APPEALS
SHERYAL A. GARRISON,
UNPUBLISHED
February 14, 2003
Plaintiff-Appellant,
v
No. 234243
Genesee Circuit Court
LC No. 96-044278-NO
LARRY CONKLIN, JR.,
Defendant,
and
AMERISURE COMPANIES,
Defendant-Appellee.
Before: White, P.J., and Kelly and R.S. Gribbs,* JJ.
PER CURIAM.
Plaintiff appeals as of right the circuit court order granting summary disposition in favor
of garnishee defendant Amerisure Companies. We affirm.
On October 30, 1994, defendant Conklin constructed four crosses of wood, placed them
on plaintiff’s lawn, and set them on fire. Conklin later pleaded no contest to ethnic intimidation,
MCL 750.147b, and plaintiff filed a civil action alleging that Conklin’s actions caused her
emotional damage. Defense counsel acknowledged at oral argument that defendant Amerisure
was served but did not respond. Conklin did not respond to the complaint and a default was
entered against him. Subsequently, plaintiff and Conklin entered into a consent judgment that
required Conklin pay plaintiff $250,000. Plaintiff sought to garnish Amerisure under a
homeowner’s insurance policy that was issued to Conklin’s mother, and under which Conklin
was an insured. Amerisure denied indebtedness, and claimed Conklin’s actions were not
covered under the policy. Amerisure moved for summary disposition of plaintiff’s garnishment
claim on those grounds, and the trial court granted Amerisure’s motion.
On appeal, plaintiff argues that summary disposition was inappropriate because the trial
court improperly determined that the homeowner’s insurance policy precluded coverage for the
incident giving rise to the consent judgment against Conklin. Also, plaintiff argues, if the policy
*
Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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does not provide coverage for the incident giving rise to the judgment, then the policy provides
illusory coverage. Finally, plaintiff argues that a question of fact exists as to the exclusion of
liability coverage arising out of allegedly wilful violations of penal law.1 Since the parties
presented evidence outside of the pleadings, including deposition testimony and documentary
evidence, it is appropriate to review the issue under MCR 2.116(C)(10). Kubisz v Cadillac Gage
Textron, Inc, 236 Mich App 629, 633 n 4; 601 NW2d 160 (1999). On appeal, a trial court's grant
or denial of a motion for summary disposition is reviewed de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Interpretation of an insurance
contract presents a question of law which is reviewed de novo. Morley v Automobile Club of
Michigan, 458 Mich 459, 465; 581 NW2d 237 (1998).
On appeal, plaintiff first argues that summary disposition was inappropriate because the
trial court failed to consider whether the incident giving rise to Conklin’s consent judgment was
a “personal injury” as defined by the policy. We disagree. To determine whether an event is
covered by a liability insurance policy, a court first considers whether the event is within the
scope of the policy coverage and, if so, whether the event is denied under a policy exclusion.
Fire Ins Exchange v Diehl, 450 Mich 678, 683; 545 NW2d 602 (1996). The scope of the
coverage is determined by the terms of the insurance contract. Id.
The policy at issue provides for the following personal liability coverage:
If a claim is made or a suit is brought against an INSURED for damages because
of BODILY INJURY or PROPERTY DAMAGE caused by an occurrence or
personal injury to which this coverage applies, we will:
1. pay up to our limit of liability for the damages for which the INSURED is
legally liable; and
2. provide a defense at our expense by counsel of our choice even if the suit is
groundless, false, or fraudulent. We may investigate and settle any claim or suit
that we decide is appropriate. Our duty to settle or defend ends when the amount
we pay for damages resulting from the occurrence equal our liability limit.
PERSONAL INJURY means an injury arising from an event, during the policy
period, caused by one or more of the following offenses:
1. false arrest, detention or imprisonment, or malicious prosecution.
2. Libel, slander or defamation of character; or
3. invasion of privacy, wrongful eviction or wrongful entry.
***
1
Plaintiff raised additional arguments for the first time at oral argument. These arguments were
not briefed and will not be addressed here. Failure to brief an issue abandons it on appeal.
Steward v Panek, 251 Mich App 546, 558; 652 NW2d 232 (2002).
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PERSONAL INJURY does not apply to injury:
(1) caused by a willful violation of a penal law or ordinance committed by or
with the knowledge or consent of an INSURED.
Plaintiff alleged the following in her amended complaint:
On or about October 30, 1994 the Defendant [Conklin] not intending injury but
contrary to the provisions of the public policy expressed by the Michigan Ethnic
Intimidations laws, the common law and other Michigan Statutes did construct
four crosses of wood, soaked them with a flammable liquid believed to be
kerosene, entered onto the lawn area of the Plaintiff’s home, placed the crosses in
the yard and ignited the crosses under the cover of darkness.
Although Defendant’s actions were upon information and belief intended only as
a Halloween prank the events initiated by Defendant accidentally cause[d] injury
and damage to Plaintiff when she observed the flames and damage on her
premises.
The trial court found that the Conklin’s acts “were intentional, designed to effect a certain
result” and did not qualify for coverage under the Amerisure policy. Plaintiff argues that
Conklin’s actions, specifically an invasion of privacy and wrongful entry, caused “personal
injury” and should be covered, whether or not they qualify as an “occurrence” under the policy.
As the trial court suggested at the motion hearing that, although Conklin pleaded no
contest to ethnic intimidation, he admitted in response to the initial complaint that he helped
build the crosses “to frighten and intimidate Plaintiff because of her race.” Conklin denied, both
in his answer to the complaint and in his deposition testimony, that he burned the crosses on
plaintiff’s property, although he was deemed to have admitting burning the crosses when he
failed to reply to defendant’s request to admit. In granting defendant’s motion for summary
disposition, the trial court stated,
The truth is Mr. Conklin is in prison for ethnic intimidation. The truth is
that he has earlier in this case admitted doing the things that he was charged with
even though he initially pled no contest and further admitting that these things
were done with the intent to frighten and scare Mrs. Garrison. The fact that he
now says he didn’t do it I don’t think is of any assistance because if he is telling
the truth now, and he didn’t do it, there would be no reason for coverage.
I find that the acts of the Defendant Conklin were intentional, designed to
effect a certain result, that they did so, that those acts don’t qualify as an
occurrence under the Amerisure policy. I don’t find that the section which
describes the events to be ap—apo (indistinct) here, the claim is for violation of
the ethnic intimidation law, and I am going to grant summary disposition in favor
of Amerisure.
As the trial court concluded, neither Conklin’s admission that his actions were intentional and
intended to frighten and intimidate plaintiff because of her race, nor his claim that they never
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happened, supports plaintiff’s assertion that there should be coverage for a personal injury in this
case. In addition, in light of Conklin’s admissions, the trial court did not err in finding that there
was no question of fact regarding whether Conklin intentionally violated the law.
Plaintiff also argues the coverage is illusory because the enumerated “personal injury”
provision covers events caused by intentional torts, and a different provision excludes liability
for wilful violations of penal laws, which may include intentional torts. We disagree. An
insurance company is free to limit its liability as long as it does so clearly and unambiguously.
Allstate Ins Co v Fick, 226 Mich App 197, 201-202; 572 NW2d 265 (1997). Any clause in an
insurance policy is valid as long as it is clear, unambiguous and not in contravention of public
policy. Raska v Farm Bureau Ins Co, 412 Mich 355, 361-362; 314 NW2d 440 (1982).
The plain language of the policy exclusion dictates that if Conklin intended to violate a
penal statute, Amerisure would not be required to provide coverage for the resulting personal
injury, whether the harm was intended or not. State Farm Fire & Casualty Co v Couvier, 227
Mich App 271, 274-275; 575 NW2d 331 (1998). The exclusion language is clear and
unambiguous. In addition, it is against Michigan public policy to provide benefits to those who
commit crimes. As a matter of public policy, an insurance policy that excludes coverage for a
person’s criminal acts serves to deter crime, while a policy that provides benefits to those who
commit crimes would encourage it. Auto Club Group Insurance Company v Daniel, __ Mich
App __; __ NW2d __ (Docket No. 231706, issued September 13, 2002), slip op, p 3. The trial
court did not err in granting summary disposition.
Affirmed.
/s/ Helene N. White
/s/ Kirsten Frank Kelly
/s/ Roman S. Gribbs
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