KIRK ALFORD V ALLSTATE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
KIRK ALFORD,
UNPUBLISHED
January 19, 2006
Plaintiff-Appellant/Cross-Appellee,
v
No. 262441
Wayne Circuit Court
LC No. 03-338615-CK
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee/CrossAppellant,
and
AMERICAN CASUALTY COMPANY of
READING, PENNSYLVANIA, a/k/a CNA
Defendant.
Before: Cavanagh, P.J., and Cooper and Donofrio, JJ.
PER CURIAM.
Plaintiff Kirk Alford appeals as of right the trial court’s order granting defendant Allstate
Insurance Company’s motion for summary disposition pursuant to MCR 2.116(C)(8) and MCR
2.116(C)(10) in this no-fault insurance action. We reverse and remand to the trial court for
further consideration on the merits.
I. Facts and Procedural Background
On November 29, 2002, plaintiff, a 44-year-old man, was injured when another driver
disregarded a stop sign and collided with plaintiff’s truck. As a result of this collision, plaintiff
suffered various injuries to his back, right foot, and left knee that required physical therapy.
Although the other driver produced a certificate of no-fault insurance, plaintiff later discovered
that he was, in fact, uninsured.1 At the time of the accident, plaintiff believed that his own
vehicle was insured under the fleet insurance policy of his employer, Willie McCormick &
1
Plaintiff has not filed suit against that driver for his injuries.
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Associates (McCormick), with American Casualty Group (also known as CNA). McCormick
had secured its fleet insurance policy through the Zervos Group (Zervos), a local agency with the
authority to enter into insurance contracts on CNA’s behalf. Plaintiff leased his vehicle from the
manufacturer in September of 2002, and used it in the course of his employment throughout
these proceedings. It is undisputed that plaintiff’s vehicle was included in the fleet insurance
policy in the year prior to his accident. McCormick renewed the policy approximately one
month before plaintiff’s accident. At that time, plaintiff was issued a new certificate of insurance
indicating that his policy was effective from October 28, 2002 until October 28, 2003. Around
the time of the accident, however, plaintiff purchased his vehicle and leased it back to
McCormick.2 Although Zervos took part in these transactions, and had previously insured
plaintiff’s vehicle, it alleged that McCormick failed to include this vehicle in the fleet insurance
policy until December 18, 2002, nearly three weeks after plaintiff’s accident.3 Therefore, CNA
denied plaintiff’s claim for personal injury protection (PIP) benefits.4
Thereafter, plaintiff sought uninsured motorist (UM) benefits through a no-fault
insurance policy issued by Allstate to his daughter, who lived with him.5 The UM provision of
the Allstate policy provides, in relevant part:
We will pay damages which an insured person is legally entitled to recover from
the owner or operator of an uninsured auto because of bodily injury sustained by
an insured person. The bodily injury must be caused by accident and arise out of
the ownership, maintenance or use of an uninsured auto. . . .[6]
Allstate does not dispute that plaintiff is an “insured person” as defined by the policy, as he
resided with a named policyholder at the time of his accident.7 Allstate initially denied
2
Plaintiff testified at his deposition that there was a discrepancy in the documents relating to this
purchase. The title indicated that the “date of sale” was November 26, 2002, but the “purchase
date” was listed as December 9, 2002. Plaintiff could not recall the actual dates on which the
purchase and leaseback transactions occurred.
3
Yet, there is no indication in the record as to when plaintiff’s vehicle was removed from the
fleet insurance policy in the first instance.
4
Plaintiff testified at his deposition that, one week after the accident, a Zervos employee verbally
informed him that his vehicle was uninsured. His employer promised to investigate the situation.
In April of 2003, CNA initially denied plaintiff’s claim for uninsured motorist benefits, as his
policy did not include such coverage. CNA did not formally deny that plaintiff’s vehicle was
covered by the fleet insurance policy until November 13, 2003.
5
Plaintiff originally sought PIP, as well as UM, benefits from Allstate. As CNA entered into a
consent judgment with plaintiff for the amount of PIP benefits, the trial court dismissed
plaintiff’s claim against Allstate on that ground. Plaintiff does not challenge that dismissal on
appeal.
6
Emphasis altered from original.
7
The Allstate policy defines an “insured person” as the named policy holder “and any resident
relative.”
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plaintiff’s request for benefits on August 12, 2003, claiming that the vehicle was insured by
CNA.8 Based on CNA’s subsequent denial of coverage, however, Allstate ultimately determined
that plaintiff was not entitled to any coverage, alleging that he was the owner and driver of an
uninsured vehicle.
As neither Allstate nor CNA provided plaintiff with any coverage, he filed the instant
lawsuit in November of 2003. Following case evaluation, CNA entered into a consent judgment
with plaintiff for $7,000—the amount of PIP benefits to which the mediator determined that
plaintiff was entitled—and was dismissed from the case.9 Allstate subsequently filed its motion
for summary disposition. The trial court agreed with Allstate that plaintiff “was operating an
‘uninsured vehicle’” at the time of the accident and, therefore, was not entitled to coverage under
the UM provision of the Allstate policy. Accordingly, the trial court dismissed plaintiff’s
remaining claims against Allstate.
II. Standard of Review
We review a trial court’s determination regarding a motion for summary disposition de
novo. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
pleadings alone and should be granted only if the factual development of the claim could not
justify recovery.11 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim.12 “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists.”13 Summary disposition is appropriate only if there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.14 We also
10
8
Allstate conceded at oral argument, however, that it must provide UM benefits to plaintiff if
plaintiff establishes that his vehicle was, in fact, insured by CNA on the date of his accident.
9
Plaintiff contends that CNA's settlement constitutes an admission that it did, in fact, provide
insurance coverage for his vehicle on the date of the accident. However, a party does not
necessarily admit liability by entering into a consent judgment. Rather, the settling party
acknowledges that a dispute exists and negotiates an end to the controversy. Walbridge Aldinger
Co v Walcon Corp, 207 Mich App 566, 573; 525 NW2d 489 (1994), citing Protective Ins Co v
American Mut Liability Ins Co, 143 Mich App 408, 417 n 4; 372 NW2d 577 (1985).
10
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
11
Beaudrie v Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001).
12
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
685 (1999).
13
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
14
MacDonald, supra at 332.
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review “questions involving the proper interpretation of a contract or the legal effect of a
contractual clause” de novo.15
III. Uninsured Motorist Coverage
Plaintiff contends that the trial court erroneously determined that he was operating an
“uninsured motor vehicle” at the time of his accident and, therefore, improperly dismissed its
claim against Allstate for UM benefits. We agree. The certificate of insurance issued to plaintiff
in October of 2002, at a minimum, created a question of fact that his vehicle was insured under
McCormick’s fleet insurance policy with CNA.
In determining whether plaintiff was entitled to UM benefits under the Allstate policy, we
must determine from the policy itself whether the parties intended to extend coverage under the
circumstances.
Uninsured motorist insurance permits an injured motorist to obtain coverage from
his own insurance company to the extent that a third-party claim would be
permitted against the uninsured at-fault driver. Uninsured motorist coverage is
optional—it is not compulsory coverage mandated by the no-fault act.
Accordingly, the rights and limitations of such coverage are purely contractual
and are construed without reference to the no-fault act.[16]
We must enforce an unambiguous insurance policy as written.17 The Allstate policy
specifically excludes coverage for “bodily injury to any person injured while in, on, getting into
or out of or when struck by an uninsured motor vehicle which is either owned by you or . . . a
resident relative.”18 The policy defines an “uninsured motor vehicle,” in relevant part, as a
vehicle “which has no bodily injury liability bond or insurance policy in effect at the time of the
accident.” We must apply these terms as defined by the contract for insurance.19 Pursuant to the
plain language of these provisions, an “insured person” is entitled to UM benefits when his or
her vehicle is covered by any insurance policy. Viewing the evidence presented in the light most
favorable to plaintiff, he was entitled to benefits under these provisions.
Approximately one month before plaintiff’s accident, McCormick renewed its fleet
insurance policy and Zervos issued a certificate of insurance to plaintiff indicating that it was
effective for one year. The certificate identified CNA as the named insurer and specifically
identified plaintiff’s vehicle as the insured vehicle by its vehicle identification number.
15
Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
16
Rory, supra at 465-466 (emphasis added and internal citations omitted).
17
Twichel, supra at 534; Allstate Ins Co v Muszynski, 253 Mich App 138, 141; 655 NW2d 260
(2002).
18
Emphasis altered from original.
19
Berry v State Farm Mut Auto Ins Co, 219 Mich App 340, 346; 556 NW2d 207 (1996).
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Although Allstate now alleges that plaintiff’s vehicle was not included in the CNA fleet
insurance policy until mid-December, it is well established that such a certificate represents a
binding contract for insurance. Pursuant to the motor vehicle code (rather than the no-fault act),
Any carrier authorized to issue motor vehicle liability policies may, pending the
issuance of such a policy, execute an agreement, to be known as a “binder”, or
may, in lieu of such a policy, issue an indorsement to an existing policy. Every
such binder or indorsement shall be subject to the provisions of this section and
shall be construed to provide indemnity or insurance in like manner and to the
same extent as a motor vehicle liability policy.[20]
This Court has described an insurance binder as a temporary contract for insurance, allowing the
applicant to drive or register his or her vehicle until a formal policy can be issued.21 The terms
of the policy ultimately issued are incorporated into the binder through the initial oral or written
agreements of the parties.22 Although temporary in nature, a binder remains in effect until a
formal policy is issued or the insurer notifies the insured that the policy has been denied or
cancelled.23
A certificate of no-fault insurance is clearly a “binder” as contemplated by the statute and
prior caselaw. This Court has repeatedly found such a certificate to be evidence of a temporary
contract for insurance.24 A certificate of insurance obviously binds the issuing insurance carrier
to provide coverage in the event of a loss. However, the certificate also notifies the world that
the holder has secured the mandatory no-fault insurance coverage.25 An individual seeking to
register his or her motor vehicle may present the certificate to the secretary of state as proof of
insurance.26 A car dealership may rely on a certificate provided by an insurance agency when
entering into a transaction with a potential customer.27 Such proof of insurance also places other
drivers and insurance carriers on notice that an insurer intended to provide coverage to the
plaintiff.
20
MCL 257.520(k) (emphasis added).
21
Universal Underwriters Group v Allstate Ins Co, 246 Mich App 713, 721; 635 NW2d 52
(2001); Jackson v Transamerica Ins Corp of America, 207 Mich App 460, 462-463; 526 NW2d
31 (1994); State Auto Mut Ins Co v Babcock, 54 Mich App 194, 204; 220 NW2d 717 (1974).
22
Universal Underwriters, supra at 721; Babcock, supra at 204.
23
Universal Underwriters, supra at 721, quoting 43 Am Jur 2d, Insurance, § 219, p 304;
Jackson, supra at 463; Babcock, supra at 204-205.
24
See Universal Underwriters, supra at 721; Blekknek v Allstate Ins Co, 152 Mich App 65, 68;
393 NW2d 883 (1986).
25
MCL 500.3101(1).
26
MCL 257.518(a); Universal Underwriters, supra at 721; Jackson, supra at 463.
27
Universal Underwriters, supra at 721-722.
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Allstate contends that it should not be bound by the allegedly inaccurate certificate of
insurance issued to plaintiff by Zervos. However, even if Zervos or CNA erroneously omitted
plaintiff’s vehicle from the fleet insurance policy, Allstate’s recourse would be against those
agencies, not the consumer.28 “Insurance companies are bound by all acts and contracts made by
their agents which are within the apparent scope of authority conferred upon them . . . .”29
“The general public transact their business with insurance companies through
representatives of such companies without actual notice of any limit upon the
authority of such representatives. The agent is usually clothed with at least
apparent authority to transact the business in hand, i.e., the effectuating of
insurance.”30
An independent insurance agent, such as an independent brokerage firm, is ordinarily considered
to be an agent of the insured, rather than the insurer.31 However, the power to renew existing
insurance policies and issue certificates of insurance relating to a renewed policy are certainly
“within the apparent scope of authority” conferred by CNA to Zervos.
CNA had provided coverage for plaintiff’s vehicle for more than a year at the time of his
accident. CNA further admitted that it continued to provide coverage after McCormick allegedly
requested that the vehicle be added to the policy on December 18, 2002. Allstate’s only
explanation for the apparent gap in coverage is that CNA or Zervos made some error. Yet, the
erroneous, short-term omission of plaintiff’s vehicle from the policy would not negate plaintiff’s
coverage in light of the binding certificate of insurance. It appears clear from the evidence
presented on the record that CNA intended to enter into a binding contract for insurance with
plaintiff. At a minimum, plaintiff created an issue of fact that his vehicle was covered under
McCormick’s fleet insurance policy on the date of the accident, as suggested by the certificate of
insurance. Accordingly, whether plaintiff owned an “uninsured motor vehicle” pursuant to the
28
We recognize that an unknown third-party’s ability to recover from an insurance agent or
carrier has recently been placed into question in this state. In Michigan Tooling Ass’n Workers
Comp Fund v Farmington Ins Agency, LLC, unpublished opinion of the Court of Appeals, issued
December 7, 2004 (Docket No. 249013), a panel of this Court determined that an independent
insurance agency has a duty to foreseeable third-parties to prepare and issue accurate certificates
of insurance. Id. at 2-4. In that case, the agency forwarded a certificate of insurance to a thirdparty as evidence that its client had secured workers compensation insurance. That third-party
then shared this information with a related corporation. Id. at 2. The Michigan Supreme Court
recently scheduled oral argument on the insurance agency’s application for leave to appeal and
ordered the parties to address whether the agency owed a duty to an additional third-party with
whom it had no contact. Michigan Tooling Ass’n Workers Comp Fund v Farmington Ins
Agency, LLC, 474 Mich 878; 704 NW2d 696 (2005).
29
Babcock, supra at 201.
30
Id. at 202, quoting Ames v Auto Owners Ins Co, 225 Mich 44, 49; 195 NW 686 (1923).
31
Mate v Wolverine Mut Ins Co, 233 Mich App 14, 20; 592 NW2d 379 (1998).
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Allstate insurance policy was a question of fact for trial. Therefore, the trial court improperly
dismissed plaintiff’s claims under the UM provision against that party.
IV. Serious Impairment of Body Function
On cross-appeal, Allstate contends that we should affirm the trial court’s order on
alternate grounds, as plaintiff cannot establish that he suffered a serious impairment of a body
function. However, the trial court failed to address this issue in connection with Allstate’s
motion for summary disposition. The trial court has the benefit of a more complete record and
personal experience with the evidence and parties in this case. Accordingly, that court should
consider Allstate’s motion in the first instance.
Reversed and remanded to the trial court for further consideration on the merits. We do
not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Jessica R. Cooper
/s/ Pat M. Donofrio
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