Engle v. Zurich-American Insurance Group , 230 Mich. App. 105 ( 1998 )

583 N.W.2d 484 (1998) 230 Mich. App. 105

Paul E. ENGLE, Plaintiff-Appellee-Cross-Appellant,
v.
ZURICH-AMERICAN INSURANCE GROUP, Defendant-Appellant, and
Liberty Mutual Insurance Company, Defendant-Appellee-Cross-Appellee, and
Beverly McConnell, Defendant.

Docket No. 174552.

Court of Appeals of Michigan.

Submitted March 17, 1998, at Detroit. Decided May 26, 1998, at 9:20 a.m. Released for Publication September 10, 1998.

Plunkett & Cooney, P.C. (by Robert G. Kamenec), Detroit, for Zurich-American Insurance Group.

Beresh, Prokopp & Sekerak (by David G. Sekerak) (Garan, Lucow, Miller & Seward, P.C., Southfield, by Robert D. Goldstein, of Counsel), Detroit, for Liberty Mutual Insurance Company.

Before WAHLS, P.J., and REILLY and O'CONNELL, JJ.

ON REMAND

PER CURIAM.

Plaintiff brought this action seeking a declaration of his rights under insurance policies issued by defendants Zurich-American Insurance Group and Liberty Mutual Insurance. Company. The trial court ruled that the policy issued by Zurich, but not the policy issued by Liberty, provided coverage. Accordingly, the trial court granted summary disposition in favor of plaintiff against Zurich and in favor of Liberty against plaintiff. Zurich appealed, arguing that its policy did not provide coverage. Plaintiff cross appealed, arguing that if the policy issued by Zurich did not provide coverage, then the policy issued by Liberty did provide coverage. In a majority opinion, this Court affirmed the decision of the trial court and declined to review the issue whether Liberty's policy provided coverage. See Engle v. Zurich-American Ins. Group, 216 Mich.App. 482, 549 N.W.2d 589 (1996). Zurich then sought leave to appeal. In lieu of granting leave, the Michigan Supreme Court remanded the case to this Court for consideration of whether Liberty's policy provided coverage. 455 Mich. 865, 568 N.W.2d 79 (1997). We now answer that question in the affirmative, affirm in part, reverse in part, and remand.

The facts of this case have been adequately set forth in our previous opinion. Much like any other contract, an insurance policy is an agreement between the parties. When presented with a dispute, a court must determine the parties' agreement and enforce it. Zurich-American Ins. Co. v. Amerisure Ins. Co., 215 Mich.App. 526, 530-531, 547 N.W.2d 52 (1996). An insurance contract is clear if it fairly admits of but one interpretation. Raska v. Farm Bureau Mut. Ins. Co., 412 Mich. 355, 361-362, 314 N.W.2d 440 (1982). If an insurance contract is clear, it will be enforced as written no matter how inartfully worded or clumsily arranged. Id. In this case, because the insurance obligations of Zurich and Liberty are governed by the terms of each of their individual policies, our holding that the policy issued by Zurich affords coverage does not preclude a determination that the policy issued by Liberty affords coverage as well. See Amerisure, supra at 531, 547 N.W.2d 52.

Zurich argues in its supplemental brief on remand that plaintiff was covered under the policy issued by Liberty as a permissive user. We agree. Liberty's policy includes a clause extending coverage to permissive users that is identical to the "permissive user clause" construed by this Court in Amerisure, supra at 531-534, 547 N.W.2d 52. In that case, we held that the owner and driver of a truck tractor leased to a carrier was covered under the carrier's truck liability insurance as a permissive user when he was involved in an accident while driving his tractor to a facility in Ohio for repair of the heater motor. Id. at 528-529, 531-534, 547 N.W.2d 52. Because the facts of this case are similar in all relevant respects, we conclude that, at the time of the accident, plaintiff was a permissive user entitled to coverage under the permissive user clause contained in Liberty's policy.

In response to Zurich's argument, Liberty argues that, although plaintiff may have been a permissive user at the time of the accident, he was specifically excluded from coverage by a separate provision of its policy that was either not included or not addressed in the truck liability insurance policy construed in the Amerisure case. After listing five classes of persons insured under its policy (including permissive users such as plaintiff), Liberty's policy provides as follows:

None of the following is an insured:

1. Any trucker, or his or her agents or employees, other than you and your employees:

* * * * * *

b. If the trucker is insured for hired autos under an auto liability insurance policy which does not insure on a primary basis the owners of the autos and their agents and employees while the autos are being used exclusively in the trucker's business and over a route or territory the trucker is authorized to serve by public authority.

Liberty argues that this "like insurance clause" excludes plaintiff from coverage because it describes plaintiff and the insurance policy issued to him by Zurich. We disagree with the construction urged by Liberty.^[1]

Exclusionary clauses in insurance contracts are to be strictly construed against the insurer. Fire Ins. Exchange v. Diehl, 450 Mich. 678, 687, 545 N.W.2d 602 (1996); Amerisure, supra at 533, 547 N.W.2d 52. Liberty's policy defines "trucker" as meaning "any person or organization engaged in the business of transporting property by auto for hire." This definition could arguably refer to plaintiff. However, if we read the word "trucker" in Liberty's like insurance clause as applying to plaintiff, the clause would not exclude plaintiff from coverage, because the sort of "like insurance" described therein as triggering an exclusion from coverage under Liberty's policy would not describe plaintiff's policy with Zurich. This is so because plaintiff's policy with Zurich is not the type of policy that, as described in Liberty's like insurance clause, "does not insure on a primary basis the owners of the autos and their agents and employees while the autos are being used exclusively in the trucker's [in this case, plaintiff's] business and over a route or territory the trucker [plaintiff] is authorized to serve by public authority." Although plaintiff's policy with Zurich excludes plaintiff from coverage when his truck tractor is used in "the business of any person or organization to whom the automobile [truck tractor] is rented" (such as the carrier insured by Liberty), it does not purport to exclude plaintiff from coverage when his truck tractor is used exclusively in his own business. For Liberty's like insurance clause to have the effect urged by Liberty in this appeal, we would have to read the word "trucker" as referring to plaintiff the first time it is used in part "b" of Liberty's like insurance clause, and as referring to the carrier insured by Liberty the second and third times it is used in the clause. Considering the rule of strict construction, we cannot accept Liberty's strained interpretation. Accordingly, we hold that the like insurance clause contained in the policy issued by Liberty does not exclude plaintiff from coverage as a permissive user.

Because plaintiff is entitled to coverage under both insurance policies, we (1) reverse the portion of the trial court's order granting Liberty's motion for summary disposition, (2) reverse the portion of the trial court's order denying plaintiff's motion for summary disposition with regard to Liberty, (3) affirm the remainder of the trial court's order, and (4) remand for entry of an order of summary disposition in favor of plaintiff against Liberty. In their supplemental briefs on remand, both Zurich and Liberty address issues relating to their respective rights as against each other. Because Zurich and Liberty were not in an adversarial posture below, cf. Amerisure, supra at 528, 531, 547 N.W.2d 52, and these issues were not addressed by the trial court, we decline to address them on appeal. See McCready v. Hoffius, 222 Mich.App. 210, 218, 564 N.W.2d 493 (1997).

Affirmed in part, reversed in part, and remanded.

NOTES

[1] Zurich does not address Liberty's like insurance clause in its supplemental brief on remand.