Hastings Mutual Insurance Co v. Mosher Dolan Cataldo & Kelly Inc ( 2014 )

Order Michigan Supreme Court
Lansing, Michigan
December 10, 2014 Robert P. Young, Jr.,
Chief Justice
149201 & (137) Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
HASTINGS MUTUAL INSURANCE David F. Viviano,
COMPANY, Justices
Plaintiff/Counter-Defendant/
Appellee/Cross-Appellant,
v SC: 149201
COA: 296791
Oakland CC: 2004-056508-CK
MOSHER DOLAN CATALDO &
KELLY, INC.,
Defendant/Counter-Plaintiff/
Appellant/Cross-Appellee,
and
LISA FEINBLOOM and DAVID
FEINBLOOM,
Defendants.
____________________________________/
On order of the Court, the application for leave to appeal the January 23, 2014
judgment of the Court of Appeals and the application for leave to appeal as cross-
appellant are considered. Pursuant to MCR 7.302(H)(1), in lieu of granting the
application for leave to appeal, we REVERSE the judgment of the Court of Appeals. The
Court of Appeals erred in holding that plaintiff Hastings Mutual Insurance Company
(“Hastings Mutual”) did not have a duty to defend defendant Mosher Dolan Cataldo &
Kelly, Inc. (“Mosher Dolan”) in the underlying arbitration case. The duty to defend is
broader than the duty to indemnify. American Bumper and Mfg Co v Hartford Fire Ins
Co, 452 Mich. 440, 450 (1996). An insurer has a duty to defend, despite theories of
liability asserted against the insured that are not covered under the policy, if there are any
theories of recovery that fall within the policy. Id. at 451. In this case, the claimants in
the underlying arbitration case alleged water damage to personal property that was not
excluded from coverage by any of the exclusions in Hastings Mutual’s policy. Therefore,
although the Fungi Exclusion excluded coverage for some of the claims asserted in the
underlying arbitration case, Hastings Mutual had a duty to defend Mosher Dolan. And,
2
because Hastings Mutual had a duty to defend, it is not entitled to restitution. We
REMAND this case to the Oakland Circuit Court for further proceedings consistent with
this order and the February 14, 2013 judgment of the Court of Appeals (Court of Appeals
Docket No. 296791). The application for leave to appeal as cross-appellant is DENIED,
because we are not persuaded that the questions presented should be reviewed by this
Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 10, 2014
h1203
Clerk