Jeremy Drouillard v. American Alternative Insurance Corporation ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JEREMY DROUILLARD, FOR PUBLICATION
February 27, 2018
Plaintiff-Appellee,
v No. 334977
St. Clair Circuit Court
AMERICAN ALTERNATIVE INSURANCE LC No. 2015-002282-NI
CORPORATION,
Defendant-Appellant.
Before: TALBOT, C.J., and METER and TUKEL, JJ.
METER, J. (dissenting).
I respectfully dissent because I believe the trial court correctly denied defendant’s motion
for summary disposition. I would affirm.
As noted by the majority, plaintiff’s insurance policy defined “uninsured motor vehicle”
as follows:
“Uninsured motor vehicle” means a land motor vehicle or “trailer”:
* * *
d. That is a hit-and-run vehicle and neither the driver nor owner can be
identified. The vehicle must hit, or cause an object to hit, an “insured,” a covered
“auto” or a vehicle an “insured” is “occupying”. If there is no direct physical
contact with the hit-and-run vehicle, the facts of the “accident” must be
corroborated by competent evidence, other than the testimony of any person
having a claim under this or any similar insurance as the result of such “accident”.
In Dancey v Travelers Prop Cas Co, 288 Mich. App. 1, 2-3, 11-12; 792 NW2d 372 (2010),
this Court considered a situation analogous to that in the instant case; the insured’s vehicle hit a
ladder in a roadway, and the policy language at issue was identical to that at issue here. The
Court stated:
Defendant claims that in order for the hit-and-run vehicle to “cause an
object to hit” plaintiff’s vehicle, there must be a physical nexus between the hit-
and-run vehicle and the object. Defendant argues that because no one could
-1-
affirmatively state that the ladder fell off another vehicle, only speculation would
permit a jury to conclude that there was any nexus between the ladder and the hit-
and-run vehicle, and speculation is insufficient to establish a genuine issue of fact.
Plaintiff argues that there was no other logical explanation for how the ladder
came to be in the roadway, given that the area was not under construction, was
not open to pedestrian traffic, and was not beneath an overpass from which a
ladder could have fallen. [Id. at 12.]
This Court ultimately affirmed the denial of summary disposition to the insurer, concluding that
sufficient evidence had been presented to establish a substantial physical nexus between the
ladder and another vehicle. Id. at 21-22. The majority indicates that the Dancey Court was
focusing on the possibility of a “substantial physical nexus” between the ladder and another
vehicle and not on the “cause an object to hit” phrasing from the policy. Implicit in the Dancey
Court’s holding, however, was that the situation in Dancey satisfied the pertinent language of the
policy. Therefore, Dancey provides supportive caselaw for plaintiff’s position in the present
case.
In Berry v State Farm Mut Auto Ins Co, 219 Mich. App. 340, 342-343; 556 NW2d 207
(1996), the insured’s vehicle struck an object in a roadway and she sought uninsured motorist
benefits. The insurance policy in question defined an “uninsured motor vehicle,” in part, as a
hit-and-run vehicle that “strikes . . . the vehicle the insured is occupying.” Id. at 342. This Court
stated:
[D]efendant takes issue with the [trial] court’s legal conclusion that plaintiff was
covered under the uninsured motorist provision of the insurance policy.
Defendant acknowledges, and we agree, that the policy’s requirement that a hit-
and-run vehicle must strike the insured’s vehicle constitutes a requirement of
physical contact between the hit-and-run vehicle and the insured’s vehicle.
Defendant’s arguments all concern whether physical contact between a hit-and-
run vehicle and plaintiff’s vehicle occurred in this case.
***
[T]his Court has construed the physical contact requirement broadly to include
indirect physical contact, such as where a rock is thrown or an object is cast off by
the hit-and-run vehicle, as long as a substantial physical nexus between the
disappearing vehicle and the object cast off or struck is established by the proofs.
In this case, defendant argues that an insufficient nexus existed between a hit-and-
run vehicle and the metal piece lying in the road. [Id. at 346-347 (citations
omitted.]
The Berry Court ruled that “the legal requirement of a substantial physical nexus between the
hit-and-run vehicle and the object struck by plaintiff was established.” Id. at 350. The Court
indicated that adequate evidence of contact between the insured and another vehicle had been
presented because “the metal piece lying in the road that [the insured’s] vehicle struck was
deposited by the hit-and-run vehicle itself, i.e., the truck hauling a trailer of scrap metal.” Id. at
352.
-2-
The relevant policy language in Berry was “a . . . motor vehicle . . . which strikes . . . the
vehicle the insured is occupying,” and the Court found adequate evidence of coverage. Id. at
342, 352. The relevant language in the present case is “a . . . vehicle [that] . . . cause[s] an object
to hit . . . a vehicle an ‘insured’ is ‘occupying’.” The policy language in the present case is
broader than that at issue in Berry.
Both Dancey and Berry suggest the existence of coverage in the present case.1 In
addition, the plain language of the insurance policy supports the existence of coverage. Evidence
demonstrated that the building materials in the road “hit” the ambulance when the ambulance
proceeded over them. Random House Webster’s Dictionary (1997) defines “hit,” in part, as “to
come against with an impact[.]” The building materials “c[a]me against” the ambulance “with
an impact[.]” Accordingly, the white pickup truck “cause[d] an object to hit” the ambulance.
In light of the policy language and existing caselaw, I would affirm the denial of
summary disposition to defendant.2
/s/ Patrick M. Meter
1
Contrary to the suggestion made in the concurring opinion, I do not find that Dancey and Berry
are strictly binding in the present case. I find them suggestive of coverage, and reading them in
conjunction with the plain language of the policy leads me to conclude that the trial court did not
err in denying summary disposition to defendant.
2
I agree with the majority that defendant was not entitled to summary disposition based on the
argument relating to the common definition of a “hit-and-run vehicle” because, contrary to
defendant’s argument, the trial court correctly concluded that there were genuine issues of fact
regarding knowledge on the part of the driver. Whether this knowledge must ultimately be
proven in order for plaintiff to recover is not a question currently before us because we are
reviewing, simply, whether the trial court correctly denied defendant’s motion for summary
disposition.
-3-