American National Fire Insurance v. Frankenmuth Mutual Insurance , 445 Mich. 91 ( 1994 )

445 Mich. 91 (1994) 516 N.W.2d 52

AMERICAN NATIONAL FIRE INSURANCE COMPANY
v.
FRANKENMUTH MUTUAL INSURANCE COMPANY

Docket No. 97596.

Supreme Court of Michigan.

Decided May 4, 1994.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Leonard B. Schwartz and Patrick Burkett), for the plaintiff.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by James L. Borin and Robert D. Goldstein), for the defendant.

MEMORANDUM OPINION. As observed by the Court of Appeals, this case was submitted to the trial court with an agreed-upon statement of facts. We restate here the Court of Appeals recitation of the facts:

At approximately 8:25 P.M. on December 2, 1984, a car driven by Scott Whitney, traveling on the southbound lane of Bricker Road in St. Clair County, collided with the rear of a combine that was completely blocking the southbound lane of the road. Whitney's passenger, Christopher Rondo, was killed in the collision. The combine had been used by Floyd Campbell for harvesting corn in a neighbor's field along Bricker Road. Afterwards, Campbell parked the combine in the southbound lane of Bricker Road and used an auger, which extended across the northbound lane of Bricker Road, to convey the harvested load of corn to a pickup truck, which was parked adjacent to the northbound lane of the road. At the time of the accident, the combine was unloading the corn onto the truck, and the auger was still extended. Only the combine was physically struck by Whitney's car.

Both the combine and the truck were owned by Campbell. The combine was expressly covered by plaintiff's farm policy, which included coverage for bodily injury liability, while the truck was covered under defendant's no-fault automobile insurance policy.

The decedent's personal representative filed a wrongful death action against Campbell and Whitney. Plaintiff undertook the defense of Campbell. Plaintiff tendered the defense of the suit to defendant and also sought contribution. Defendant declined both requests.

The wrongful death suit was settled for $350,000 (Whitney provided $50,000 and plaintiff, on behalf of Campbell, provided $300,000). Defendant agreed that the $300,000 payment by plaintiff was a reasonable contribution to the settlement package. The underlying litigation was concluded by a consent judgment and satisfied by plaintiff. On cross motions for summary disposition, the trial court granted defendant's motion, ruling that defendant's residual liability policy did not provide coverage because the truck was not involved in the accident. [199 Mich App 202, 205-206; 501 NW2d 237 (1993).]

The Court of Appeals vacated the trial court's order, which granted the defendant's motion for summary disposition and which denied the plaintiff's cross motion for summary disposition. The case was ordered remanded to the trial court for further proceedings.

Pursuant to MCR 7.302(F)(1), we affirm the judgment of the Court of Appeals, but not for all the reasons stated by the Court of Appeals. We agree with the plaintiff that the trial court appears to have refused to follow the parties' stipulation of facts. We remand the case to the Oakland Circuit Court for further proceedings consistent with that stipulation.

We further order that the opinion of the Court of Appeals shall have no precedential force or effect. See Bernthal v Aetna Casualty & Surety Co, 444 Mich 1216 (1994).

CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred.

LEVIN, J. (dissenting).

I would deny leave to appeal rather than purport to "affirm the judgment of the Court of Appeals" with the flag that "the opinion of the Court of Appeals shall have no precedential force or effect. See Bernthal v Aetna Casualty & Surety Co, 444 Mich 1216 (1994)." Ante, p 93.

The Court does not indicate how the Court of Appeals might have erred in its analysis. Today's decision is similar to recent decisions in Bernthal, supra, and Ginther v Ovid-Elsie Area Schools, 444 Mich 1218 (1994), in which this Court denied leave to appeal with the flag that the reported opinions of the Court of Appeals in those cases shall have no precedential force or effect. I repeat what I said in a separate statement in Bernthal and in Ginther:

The Michigan Court of Appeals was established by the 1963 Constitution, and the judges of the Court are elected public officials who perform a function set forth in the constitution. Their published opinions are authoritative statements of law, not by grace of this Court, but by the power vested in the Court of Appeals by the constitution.

The precedential force or effect of an opinion of the Court of Appeals should not be set aside absent a determination by this Court or the United States Supreme Court that the Court of Appeals erred. Such a decision should not be lightly made, and clearly should not be made without plenary consideration, and the resulting notice to other persons who might be favorably or adversely affected by an affirmance or reversal of the decision of the Court of Appeals who might seek to file a brief as amicus curiae.

Further, this Court's order denying precedential force or effect to an opinion of the Court of Appeals avoids compliance with the constitutional imperative that decisions of this Court "shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal." Const 1963, art 6, § 6.