Davis v. Great American Insurance

136 Mich. App. 764 (1984) 357 N.W.2d 761

DAVIS
v.
GREAT AMERICAN INSURANCE COMPANY

Docket No. 71424.

Michigan Court of Appeals.

Decided August 20, 1984.

Kelman, Loria, Downing, Schneider & Simpson (by Nicholas J. Rine), for plaintiff.

Law Offices of Sopt & Gorny (by David J. Navarre), for defendant.

Before: D.E. HOLBROOK, JR., P.J., and MacKENZIE and E.A. QUINNELL,^[*] JJ.

PER CURIAM.

Plaintiffs obtained a default judgment for $45,000 against a person to whom defendant has issued a homeowner's insurance policy providing personal liability coverage up to $50,000. Prior to entry of the default judgment against defendant's insured, defendant had refused its insured's request to defend and indemnify the insured in connection with plaintiffs' suit, and defendant's insured then entered into a written agreement with plaintiffs assigning to the latter any and all rights the insured had against defendant under the insurance policy. After entry of the default judgment against the insured, plaintiffs brought suit in Wayne County Circuit Court against defendant alleging as assignee of the insured and as a third-party beneficiary that defendant had breached its contractual duty under the insurance policy by refusing to pay the judgment, and alleging that defendant breached its statutory duties under the Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq.

Pursuant to defendant's motion for a change of venue, an order was entered by the Wayne County Circuit Court judge transferring the case to Oakland County Circuit Court. Plaintiffs subsequently moved for summary judgment under GCR 1963, 117.2(3) against defendant, and the Oakland County Circuit Court judge entered an order denying plaintiffs' motion and furthermore sua sponte dismissing plaintiffs' suit on the ground that plaintiffs' sole remedy was a garnishment proceeding against defendant. From that order, plaintiffs appeal as of right.

With respect to that part of the court's order dismissing plaintiffs' suit, we agree with plaintiffs that the court erred. It is true that plaintiffs could have brought a garnishment proceeding against defendant in order to satisfy their judgment, which was within policy limits. Meirthew v Last, 376 Mich. 33, 39-40; 135 NW2d 353 (1965); Rutter v King, 57 Mich. App. 152, 171; 226 NW2d 79 (1974); MCL 500.3006; MSA 24.13006; GCR 1963, 738. However, the lower court erred in determining that plaintiffs' sole remedy was garnishment. Historically, garnishment was unknown to the common law and was a remedy created by statute. 10A Callaghan's Michigan Pleading & Practice (2d ed), § 75.01, p 226. Garnishment as a means of obtaining satisfaction of a judgment is not an exclusive remedy. See 6 Am Jur 2d, Attachment and Garnishment, § 4, pp 562-563. There is no indication in either the statute conferring the power of garnishment to the circuit courts, MCL 600.4011; MSA 27A.4011, or the court rule governing garnishment, GCR 1963, 738, that garnishment is an exclusive remedy precluding any other actions which might be brought for the purpose of satisfying a judgment.

Indeed, this Court has previously recognized that judgment creditors having a valid assignment from the judgment debtor insured may bring a direct action against the insurer for breach of contract of the insurance policy. Ward v DAIIE, 115 Mich. App. 30; 320 NW2d 280 (1982). In Ward, supra, the plaintiff had been awarded a default judgment against the insured in an amount within policy limits and brought a garnishment proceeding against the insurer. However, the plaintiff failed to contest the garnishee insurer's disclosure, resulting in discharge of the garnishee insurer and dismissal of the garnishment proceeding. The plaintiff in Ward subsequently acquired an assignment of the insured's rights under the policy and brought a breach of contract action against the insurer, and this Court held that the doctrine of res judicata did not bar the plaintiff as assignee of the insured's rights from maintaining a breach of contract action against the insurer. In so holding, this Court in Ward clearly acknowledged the existence of such a breach of contract action by a judgment creditor as assignee against an insurer as a remedy in addition to garnishment.

In the present case, plaintiffs alleged breach of contract by defendant, both as assignee of the insured's rights and as a third-party beneficiary of the insurance contract, and alleged that defendant violated the Uniform Trade Practices Act. Clearly, under Ward, supra, plaintiffs were entitled to bring a breach of contract action against defendant as valid assignees of the insured's rights. We further find that, irrespective of the assignment, plaintiffs are also entitled to pursue their claim that they are third-party beneficiaries of the insurance contract entitled to enforce the contract under the third-party beneficiary statute, MCL 600.1405; MSA 27A.1405, and to pursue any claims they may have against defendant under the Uniform Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq. However, we need not determine whether plaintiffs are valid assignees, whether plaintiffs are third-party beneficiaries under the statute, or whether plaintiffs have any claim against defendant under the Uniform Trade Practices Act — issues not reached by the lower court. We hold only that the availability of garnishment as a remedy does not preclude plaintiffs from seeking satisfaction of their judgment through a direct action against defendant, and the lower court erred in determining that plaintiffs' sole remedy was garnishment.

Plaintiffs also challenge that part of the court's order denying plaintiffs' motion for summary judgment brought under GCR 1963, 117.2(3). At the hearing on plaintiffs' motion, the court stated that plaintiffs' motion was defective for failure to attach an affidavit signed by a person competent to testify. The only affidavit attached to plaintiffs' motion was one signed by plaintiffs' attorney. An attorney affidavit submitted upon information and belief is inadequate as it fails to comply with the requirement that the supporting affidavit be sworn to by a person having personal knowledge of and competent to testify to the facts averred. GCR 1963, 117.3, 116.4; Jones v Shek, 48 Mich. App. 530, 532; 210 NW2d 808 (1973); Allstate Ins Co v Beauregard, 119 Mich. App. 103, 107; 326 NW2d 439 (1982). Here, however, the affidvit submitted by plaintiffs' attorney averred that, based on his personal knowledge, the documents attached to the motion were true and accurate copies of the original amended complaint, default, and order of judgment entered in plaintiffs' suit against defendant's insured. Hence, the affidavit was based on plaintiffs' attorney's personal knowledge and contained only averments to which plaintiffs' attorney could competently testify. The affidavit was not inadequate for purposes of complying with GCR 1963, 116.4. Jacobs v Michigan Mutual Ins Co, 106 Mich. App. 18, 20; 307 NW2d 693 (1981); Witucke v Presque Isle Bank, 68 Mich. App. 599, 604, fn 2; 243 NW2d 907 (1976), lv den 397 Mich. 842 (1976).

While we find that the court erred in denying plaintiffs' motion on the ground that the affidavit was inadequate, we do not suggest that plaintiffs are necessarily entitled to summary judgment. Whether plaintiffs have met the GCR 1963, 117.2(3) requirements of showing that no genuine issue of any material fact exists and that they are entitled to judgment as a matter of law is a matter which was never reached by the lower court, and which we decline to address in the absence of a determination by the lower court. Sturgis Savings & Loan Ass'n v Italian Village, Inc, 81 Mich. App. 577, 583; 265 NW2d 755 (1978); Szyszkoski v Lansing, 64 Mich. App. 94, 96; 235 NW2d 72 (1975). We reverse that part of the court's order denying plaintiffs' motion for summary judgment and on remand the court should give further consideration to plaintiffs' motion.

Plaintiffs' final claim on appeal is that the Wayne County Circuit Court erroneously granted defendant's motion to change venue to Oakland County Circuit Court. Plaintiffs argue that the change of venue was improper because defendant did not file its motion to change venue until after it filed its answer to the complaint, rendering defendant's motion a deferred motion for change of venue subject to GCR 1963, 402, and therefore the court improperly granted the motion since defendant failed to show that the facts upon which its motion was based "were not and could not with reasonable diligence have been known to the defendant until 10 days prior to the motion", GCR 1963, 402. This claim is without merit. Defendant in its answer did assert lack of proper venue as an affirmative defense, although the motion itself was not filed until seven days after defendant filed its answer. In 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 265, it is stated that if improper venue is pleaded as a defense in the answer, "it should be treated as though a motion for change of venue had been filed". Consequently, we hold that, since defendant pleaded lack of proper venue as a defense in its answer, its motion for change of venue subsequently filed should be treated as if it had been filed at the time of defendant's answer and hence as a timely motion brought under GCR 1963, 401. As such, it was not necessary for defendant to show that the factual basis for the motion could not with reasonable diligence have been known until ten days prior to the motion. GCR 1963, 401. The order changing venue is affirmed.

Affirmed in part, reversed in part, and remanded. No costs, neither party having fully prevailed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.