Estate of Mari Zimmerman-Thompson v. United Services Auto Assn ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF MARI ZIMMERMAN- UNPUBLISHED
THOMPSON, by SPERRY L. MEGERIAN, April 18, 2019
Personal Representative,
Plaintiff-Appellee,
v No. 336483
Bay Circuit Court
UNITED SERVICES AUTOMOBILE LC No. 15-003782-CK
ASSOCIATION,
Defendant-Appellant.
Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this no-fault insurance matter, defendant, United Services Automobile Association,
appeals as on leave granted1 the trial court’s order denying its motion for summary disposition
under MCR 2.116(C)(10). We reverse in part, affirm in part, and remand for further
proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Mari Zimmerman-Thompson and her husband, Christopher Thompson, 2 were both killed
in an automobile accident on July 2, 2015. Christopher was a named insured under an
automobile insurance policy (the Policy) and an umbrella policy (the Umbrella) issued by
defendant. Although Christopher was the named insured, he and Mari were both listed as
operators of the covered motor vehicles. Both policies contained exclusion provisions. Plaintiff,
Sperry L. Megerian as the Personal Representative of the Estate of Mari Zimmerman-Thompson
1
Megerian v United Servs Auto Ass’n, 501 Mich. 1034; 908 NW2d 905 (2018).
2
For ease of reading, we will refer to Mari Zimmerman-Thompson and Christopher Thompson
by their first names.
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(the Estate), commenced the instant action when defendant, invoking the contractual exclusion
provisions, refused to provide liability coverage to the estate.
Very generally, the Policy excluded coverage for bodily injury to a relative who “resides
primarily” in the covered person’s household; and the Umbrella excluded coverage for injury
sustained by an “insured,” which was defined to include a family member who was a “resident”
of the insured’s household. Plaintiff asserted that Mari was not subject to these exclusions
because she did not primarily reside within Christopher’s household. The evidence presented in
the trial court indicated that Mari and Christopher, who had each been married previously,
continued to own separate houses. Mari owned a house located on Stoneham Road (“the
Stoneham house”), and Christopher owned a house on Gleaner Road (“the Gleaner house”).
Plaintiff alleged that Mari resided primarily in the Stoneham house, rather than the Gleaner
house, so she was not excluded from coverage under the Policy and the Umbrella.
After several months of discovery, centered around Mari’s residential status, the parties
filed competing motions for summary disposition under MCR 2.116(C)(10). The trial court
denied both motions, concluding that the contractual language was ambiguous and holding that
the issue of coverage was a matter for the trier of fact to decide. On appeal, defendant asserts
that the trial court erroneously denied its motion for summary disposition because (1) the
contractual terms were not ambiguous and should have been interpreted by the trial court, and (2)
there was no genuine issue of material fact regarding whether Mari resided primarily with
Christopher in his household.
II. STANDARD OF REVIEW AND LEGAL PRINCIPLES
“This Court reviews de novo a trial court’s decision on a motion for summary
disposition, as well as questions of statutory interpretation and the construction and application
of court rules.” Dextrom v Wexford Co, 287 Mich. App. 406, 416; 789 NW2d 211 (2010)
(citations omitted). When reviewing a motion under MCR 2.116(C)(10), which tests the factual
sufficiency of the complaint, this Court considers all evidence submitted by the parties in the
light most favorable to the non-moving party and grants summary disposition only where the
evidence fails to establish a genuine issue regarding any material fact. Maiden v Rozwood, 461
Mich. 109, 120; 597 NW2d 817 (1999). The courts are not permitted to make findings of fact or
assessments of credibility when deciding a motion for summary disposition. Price v Kroger Co
of Mich, 284 Mich. App. 496, 500; 773 NW2d 739 (2009); Lima Twp v Bateson, 302 Mich. App.
483, 492; 838 NW2d 898 (2013). Summary disposition may not be granted if “the record leaves
open an issue on which reasonable minds could differ.” Price, 284 Mich. App. at 500. “This
Court is liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich. App. 1,
5; 763 NW2d 1 (2008). However, this Court will not reverse the trial court if it reaches the
correct result for a wrong reason. Coates v Bastian Bros, Inc, 276 Mich. App. 498, 508-509; 741
NW2d 539 (2007).
This Court reviews de novo as a question of law the proper interpretation of a contract,
including a trial court’s determination whether contract language is ambiguous. Klapp v United
Ins Group Agency, Inc, 468 Mich. 459, 463; 663 NW2d 447 (2003); see also Rory v Continental
Ins Co, 473 Mich. 457, 464; 703 NW2d 23 (2005). “[I]n reviewing an insurance policy dispute
we must look to the language of the insurance policy and interpret the terms therein in
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accordance with Michigan’s well-established principles of contract construction.” Henderson v
State Farm Fire and Cas Co, 460 Mich. 348, 353; 596 NW2d 190 (1999). If a contract provides
definitions for any of its terms, we must apply those definitions, but otherwise the words in a
contract are accorded their commonly used meanings. Cavalier Mfg Co v Employers Ins of
Wausau (On Remand), 222 Mich. App. 89, 94; 564 NW2d 68 (1997). We may consult a
dictionary to determine “the plain and ordinary meaning of” any undefined terms. Holland v
Trinity Health Care Corp, 287 Mich. App. 524, 527-528; 791 NW2d 724 (2010).
We may only find a contract ambiguous if “it allows two or more reasonable
interpretations, or if the provisions cannot be reconciled with each other,” even if the language is
“inartfully worded or clumsily arranged.” Woodington v Shokoohi, 288 Mich. App. 352, 374; 792
NW2d 63 (2010). If a contract is ambiguous, its meaning must be determined by the trier of fact.
Klapp, 468 Mich. at 469. However, “if contractual language is clear, construction of the contract
is a question of law for the court.” Holmes v Holmes, 281 Mich. App. 575, 594; 760 NW2d 300
(2008) (quotation omitted). An unambiguous contract “reflects the parties’ intent as a matter of
law” and must be enforced as written. Holland, 287 Mich. App. at 527.
III. RELEVANT CONTRACTUAL TERMS
As noted, Christopher was the named insured on the Policy, and both Christopher and
Mari were listed as operators of the motor vehicles. The Policy provided definitions of the terms
“you” and “your” as follows:
“You” and “your” refer to the “named insured” shown on the Declarations
and spouse if a resident of the same household.
If the spouse ceases to be a resident of the same household during the
policy period or prior to the inception of the policy, the spouse will be considered
you and your under this policy but only until the earlier of:
1. The effective date of another policy listing the spouse as the named
insured; or
2. The end of the policy period.
The Policy also defined the term “covered person” as “You or any family member.” It defined
the term “family member” as “a person related to you by blood, marriage or adoption who
resides primarily in your household.” The Policy provided liability coverage for compensatory
damages for bodily injury for which any “covered person” becomes legally liable because of an
auto accident. Finally, the Policy excluded liability coverage for any “covered person” for
bodily injury that occurred “to a relative who resides primarily in that covered person’s
household.”
The Umbrella is an entirely separate policy, and thus any definitions in the Policy are
inapplicable to terms in the Umbrella, and vice versa. Christopher was again listed as the named
insured in the Umbrella. In contrast to the Policy, the Umbrella defined the terms “you” and
“your” as follows:
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“You” and “your” refer to the “named insured” shown on the Declarations
and spouse. The spouse must be a resident of the same household. The spouse is
considered to be a resident of the household when there is a legitimate marital
covenant, shared economic and non-economic burdens, and legitimate reasons for
the spouse to be staying in another home or location.
The Umbrella defined the term “insured” to mean “You and any family member.” The term
“family member” was, in turn, defined to mean “a person related to you by blood, marriage, or
adoption who is a resident of your household.” Finally, the Umbrella excluded coverage for
“bodily injury or personal injury” that is “[s]ustained by any insured.”
IV. AMBIGUITY
The trial court determined that the relevant contractual provisions of both the Policy and
the Umbrella were ambiguous because, as it accurately observed, neither contract defines the
phrase “resides primarily,” nor do they define related terms like “resident” or “reside.”
However, a contract is not ambiguous merely because it does not provide its own definition for a
relevant term, even if that term may be defined differently by different dictionaries. Henderson,
460 Mich. at 354-355, 355 n 4. We conclude that the contracts are unambiguous based on the
common, everyday meaning of the relevant words.
According to Merriam-Webster’s Collegiate Dictionary the term “resident” means
“living in a place for some length of time” and “one who resides in a place”; it defines the term
“reside” to mean “remain, abide,” “to dwell permanently or continuously,” and “to occupy a
place as one’s legal domicile.” Merriam-Webster’s Collegiate Dictionary (11th ed). Living
somewhere connotes more than merely staying somewhere. Residence therefore unambiguously
requires more than mere physical presence. The word “primarily” means “for the most part” or
“chiefly.” Merriam-Webster’s Collegiate Dictionary (11th ed). In turn, “for the most part” or
“chiefly” connote something more than merely a bare majority. Combining the above definition
of “reside” with the definition of “primarily,” the phrase “resides primarily” therefore clearly
means to live, rather than merely stay, in a place for significantly more time than that person
lives anywhere else. Accordingly, it is unambiguous that the relevant Policy exclusion applies to
relatives of the named insured who spend the significant majority of their time living in the same
household as the named insured.
Similarly, the language of the Umbrella is also unambiguous. Christopher was the named
insured listed on the declarations section of the Umbrella. The policy defined the term “you” to
include both the “named insured” and spouse who is a “resident of the same household.” The
policy also defined the term “family member” to mean “a person related to you by blood,
marriage, or adoption, who is a resident of your household.” Notably, the Umbrella does not use
the word “primarily,” and it explicitly contemplates a spouse having “legitimate reasons for . . .
staying in another home or location.” We conclude that the term “resident” used in the Umbrella
is unambiguous, applying the common and everyday meanings of that word. The Umbrella’s
exclusion clearly applied to any of Christopher’s family members, including his spouse, who
lived, beyond merely staying, in his household for any meaningful length of time. Nothing about
this language is open to conflicting interpretations. See Klapp, 468 Mich. at 467.
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V. QUESTION OF FACT: UMBRELLA
It is not seriously disputable on this record that Mari was the spouse of Christopher; that
Mari lived in the same house as Christopher for a non-trivial percentage of her time; and when
Mari stayed elsewhere, she had “legitimate reasons” for doing so. Mari clearly did not merely
stay in Christopher’s house. The Umbrella plainly excludes relevant coverage for “any insured.”
The Umbrella defines an “insured” as “You and any family member.” Pursuant to the plain and
unambiguous terms of the Umbrella, Mari would constitute an “insured” under both the
definition of “you” and the definition of “family member” by virtue of being a spouse who
resided in the same household as Christopher. Accordingly, defendant was entitled to judgment
as a matter of law regarding its liability under the Umbrella.
VI. QUESTION OF FACT: POLICY
In contrast, we find a genuine question of fact regarding defendant’s liability under the
Policy. As noted, for the exclusion in the Policy to apply to Mari, she must reside for more than
merely a bare majority of her time in Christopher’s household. The record clearly reflects that
Mari and Christopher enjoyed a marriage of love and affection where the two spouses traveled
together, entertained together, and lived together. As discussed, the record indicates that Mari
resided in Christopher’s house for some time. However, we find the considerable testimony
from Mari’s and Christopher’s friends, acquaintances, and family members, conflicting as to
whether Mari resided primarily at Gleaner house (Christopher’s house) or at Stoneham house
(Mari’s house).
Some witnesses testified that Mari clearly lived at the Gleaner house, while others
testified that she spent several days each week visiting Stoneham, often staying overnight.
Similarly, some witnesses testified that Mari’s intent was to reside at the Gleaner house, while
other witnesses testified that she intended to reside at the Stoneham house. While some family
members testified that Mari referred to the Stoneham house as her home, other witnesses in
contrast testified that Mari referred to the Gleaner house as her home, and one witness testified
that Mari considered both houses her home. Furthermore, testimony showed that Mari kept
property and possessions at both houses. Some witnesses testified that she kept more property at
the Stoneham house, while other witnesses testified that she only left property at the Stoneham
house that the Gleaner house could not hold. Mari’s mailing address was another point of
conflicting accounts. While friends and family mailed holiday and birthday cards to the Gleaner
address, Mari received some important financial and legal mail at the Stoneham address,
including her banking, tax, and credit card correspondence. Mari’s driver’s license was
registered to the Stoneham address, but her membership forms for several art and gardening
groups listed the Gleaner address.
We recognize that the record does not unambiguously support plaintiff’s contention that
Mari resided primarily at Stoneham house, but there is evidence in the record tending to cast
doubt on whether Mari resided primarily at Gleaner house. Although Mari apparently spent the
majority of her overnights at Gleaner house, we do not deem that fact dispositive by itself. As
discussed, residence requires more than mere presence, and primary residence requires more
than a bare majority of time. Thus, Mari’s overnights are important, but must be considered in
conjunction with her expressed intentions and understandings, and her other conduct. At a
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minimum, there is ample evidence tending to suggest that Mari resided in both houses.3 We
conclude that the evidence in the record, when viewed in the light most favorable to plaintiff and
without drawing any conclusions regarding credibility, permits reasonable minds to differ as to
whether Mari primarily resided at Gleaner house. Defendant was therefore not entitled to
judgment as a matter of law regarding its liability under the Policy.
VII. CONCLUSION
We conclude that the trial court erred in finding the terms of the Umbrella and the terms
of the Policy to be ambiguous. We further conclude that the trial court erred in failing to grant
summary disposition in favor of defendant regarding its liability under the Umbrella. However,
the trial court correctly found a genuine question of material fact for the jury to decide regarding
defendant’s liability under the Policy. Accordingly, the trial court’s denial of defendant’s motion
for summary disposition is reversed as to the Umbrella and affirmed as to the Policy, and we
remand for further proceedings. We do not retain jurisdiction. No costs, neither party having
prevailed in full. MCR 7.219(A).
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
3
Because neither contract uses the term “domicile” and both use the term “residence,” we
decline to consider defendant’s alternative argument regarding “domicile. Our Supreme Court
has clarified that the terms “residence” and “domicile” are legally distinct despite having been
historically treated as synonymous; and especially relevant in this case, “a person may have only
one domicile, but more than one residence.” See Grange Ins Co of Mich v Lawrence, 494 Mich.
475, 494-501; 835 NW2d 363 (2013). Pursuant to the plain language of the Policy, the issue in
this matter is Mari’s “primary residence,” if any; not her “domicile.”
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