STATE OF MICHIGAN
COURT OF APPEALS
LINDA MCCORMICK, UNPUBLISHED
April 30, 2015
Plaintiff-Appellant,
v No. 318920
Wayne Circuit Court
HANOVER GROUP, INC., CITIZENS LC No. 10-003875-CZ
INSURANCE COMPANY OF AMERICA,
TAMARA WEBER, and CAROLE F.
YOUNGBLOOD,
Defendants-Appellees.
Before: HOOD, P.J., and JANSEN and GADOLA, JJ.
PER CURIAM.
In this breach-of-contract and insurance-fraud action, plaintiff appeals as of right the trial
court’s order granting summary disposition to defendants Hanover Group, Inc. (“Hanover”),
Citizens Insurance Company of America (“Citizens”), and Tamara Weber (“Weber”)
(collectively “defendants”),1 and dismissing plaintiff’s case with prejudice. We affirm.
I. BASIC FACTS
This action arises out of plaintiff’s lawsuit against Hanover, Citizens, Weber, and
Youngblood, filed March 31, 2010, for insurance proceeds related to a fire that destroyed a home
located at 8995 Henry Ruff Road, Livonia, Michigan. The instant case is but a small part of
extensive proceedings in the trial court, this Court, the Michigan Supreme Court, and the United
States Court of Appeals for the Sixth Circuit, regarding litigation related, or tangential, to the
1
Another defendant, and former circuit judge, Carole F. Youngblood (“Youngblood”) was
granted summary disposition in a prior order, which was affirmed by this Court in a prior appeal
between the parties. See McCormick v Hanover Group, Inc, unpublished opinion per curiam of
the Court of Appeals, issued May 15, 2012 (Docket No. 302011), pp 8-10. Therefore,
Youngblood is not a party to the instant appeal.
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8995 Henry Ruff Road property.2 In her complaint, plaintiff alleged two causes of action
relevant to the instant appeal: (1) breach of contract against Hanover and Citizens; and (2)
insurance fraud and conspiracy against Hanover, Citizens, and Weber.
On August 2, 2010, Citizens, Hanover, and Weber filed a motion for summary
disposition pursuant to MCR 2.116(C)(7). Defendants first argued that the statutes of limitations
for plaintiff’s claims for breach of contract, fraud, and conspiracy had expired before March 31,
2010, i.e., when plaintiff filed the complaint. Second, defendants argued that plaintiff’s
complaint violated a preliminary injunction entered by Youngblood in 2006, “which prohibited
[plaintiff] from filing suit without leave of Court,” and that plaintiff failed to obtain leave to
bring this action.
The parties appeared for a hearing on defendants’ motion for summary disposition on
August 20, 2010. The trial court ruled without hearing oral arguments and denied the motion for
summary disposition under MCR 2.116(C)(7), finding insufficient evidence in the record for the
court to decide whether the statute of limitations was tolled. However, the trial court dismissed
the complaint because plaintiff violated the injunction, finding that the injunction applied to any
lawsuits relating to the property and that the present lawsuit was based on insurance on the
property. The trial court held that it did not matter that Hanover, Citizens, and Weber were not
mentioned in the injunction and were not parties to the divorce action. The trial court concluded
that plaintiff’s suit violated the preliminary injunction and dismissed the suit.
Plaintiff appealed the trial court’s order dismissing her claims against defendants to this
Court in 2012. This Court reversed the trial court’s order dismissing plaintiff’s claims against
Hanover, Citizens, and Weber, holding that “the trial court erred in finding that the preliminary
injunction applied to the instant lawsuit against Hanover, Citizens, and Weber. Plaintiff’s
lawsuit should not have been dismissed on this ground.” McCormick v Hanover Group, Inc,
unpublished opinion per curiam of the Court of Appeals, issued May 15, 2012 (Docket No.
302011), p 7. Hanover, Citizens, and Weber also claimed on appeal that plaintiff’s claims
against them were barred by the applicable statutes of limitations. Id. This Court held that the
record was insufficient for the Court “to state with confidence whether some or all of plaintiff’s
claims are barred by the applicable statutes of limitations, or whether any of the statutes of
limitations were tolled by her filing of a lawsuit in federal court. Accordingly, in light of the
sparseness of the record before it and the presence of disputed facts, we find no error in the trial
court’s denial of summary disposition to defendants on statute of limitations grounds.” Id. at 8.
This case was then remanded to the trial court for proceedings consistent with the opinion. Id. at
10.
On May 30, 2013, defendants filed a second motion for summary disposition, pursuant to
MCR 2.116(C)(5), (7), (8), and (10). Defendants argued that plaintiff’s claims in the instant
2
See, e.g., McCormick v Braverman, 468 Mich 858; 657 NW2d 118 (2003); McCormick v
Braverman, 451 F3d 382 (CA 6, 2006); McCormick v McCormick, 221 Mich App 672; 562
NW2d 504 (1997); McCormick v Hanover Group, Inc, unpublished opinion per curiam of the
Court of Appeals, issued May 15, 2012 (Docket No. 302011).
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lawsuit were wholly different from the claims alleged by plaintiff in her 2004 and 2006 federal
lawsuits related to the property, and therefore, the federal lawsuit did not toll the statute of
limitations for plaintiff’s claims in this suit, and summary disposition was proper under MCR
2.116(C)(7). Additionally, defendants argued that plaintiff had no insurable interest in the
property located at 8995 Henry Ruff Road, so she had no standing to bring suit and summary
disposition was proper under MCR 2.116(C)(5). Finally, defendants argued that they had acted
in accordance with prior, unappealed or affirmed court orders when they disbursed funds to
persons other than plaintiff, and therefore, summary disposition was proper under both MCR
2.116(C)(8) and (10).
On June 13, 2013, defendants filed a motion to strike plaintiff’s “final amended
complaint and jury demand,” which plaintiff had filed on May 24, 2013. Defendants argued that
plaintiff did not obtain leave of court or written consent from defendants to file the amended
complaint, and therefore, the trial court should strike the amended complaint pursuant to MCR
2.115(B). Plaintiff filed her response to defendants’ motion to strike on June 25, 2013. Plaintiff
argued that MCR 2.118(A)(1) allows a party to amend a pleading once as a matter of course
within 14 days after being served with a responsive pleading by an adverse party. Plaintiff
further argued that because defendants had never filed an answer to plaintiff’s original
complaint, as required by court rule, plaintiff had the right to amend the complaint because the
14-day period after the filing of a responsive pleading had not passed. Further, plaintiff
requested that the trial court enter a default judgment in her favor because of defendants’ delay.
When plaintiff raised the argument that defendants had never filed an answer, the trial
judge reviewed the lower court file, found that no answer or affirmative defenses were contained
in the file, and believed that the answers were simply missing from the court file. The trial judge
directed his clerk to call defense counsel to obtain a copy, but defense counsel told the clerk that
no answer or affirmative defenses have ever been filed because of the unique procedural posture
of the case, i.e., defendants’ initial motion for summary disposition/dismissal granted in favor of
defendants, appeal, partial reversal on appeal, and finally, remand to the trial court. Defendants
then filed their answer on June 25, 2013, and advanced, in pertinent part, the affirmative
defenses of statute of limitations, subject-matter jurisdiction, lack of legal capacity to sue, and
lack of insurable interest.
On June 26, 2013, plaintiff filed a motion to strike defendants’ answer and affirmative
defenses, which were filed three years and 86 days after plaintiff filed her complaint. Plaintiff
argued that defendants had willfully chosen to “ignore” her, and conspired to conceal their
wrongful acts from her, throughout the litigation, with their failure to file their answer to her
complaint only the most recent act. Plaintiff further argued that defendants had waived their
right to file an answer due to their inexcusable delay, and the doctrine of estoppel should apply.
The parties appeared for a hearing on defendants’ motion for summary disposition on
June 28, 2013. The trial court granted defendants’ motion for summary disposition pursuant to
MCR 2.116(C)(5) (lack of legal capacity to sue due to plaintiff’s lack of insurable interest in the
property), (7) (statutes of limitations), (8) (failure to state a claim on which relief can be granted
because defendants’ actions followed valid court orders), and (10) (no genuine issue of material
fact that judgment in defendants’ favor was proper because their actions were in conformance
with valid court orders). The trial court also denied plaintiff’s request for a default judgment.
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II. STATUTE OF LIMITATIONS
Plaintiff first contends that the trial court erred in finding that plaintiff’s federal lawsuits
did not toll the applicable statutes of limitations. We disagree.
This Court reviews de novo the grant or denial of summary disposition. Ligon v Detroit,
276 Mich App 120, 124; 739 NW2d 900 (2007). A party is entitled to summary disposition
under MCR 2.116(C)(7) if the opposing party’s claim or claims are barred under the applicable
statute of limitations. In reviewing motions under MCR 2.116(C)(7), this Court will accept the
plaintiff’s well-pleaded factual allegations as true unless contradicted by the parties’ supporting
affidavits, depositions, admissions, or other documentary evidence. Odom v Wayne Co, 482
Mich 459, 466; 760 NW2d 217 (2008). “If the pleadings demonstrate that one party is entitled to
judgment as a matter of law, or if affidavits and other documentary evidence show that there is
no genuine issue of material fact concerning the running of the period of limitations, the trial
court must render judgment without delay.” Adams v Adams (On Reconsideration), 276 Mich
App 704, 720; 742 NW2d 399 (2007).
The parties agree that plaintiff’s claims are governed by the six-year period of limitations
prescribed in MCL 600.5807(8) and MCL 600.5813. The parties disagree, however, when that
limitations period began to run, and whether plaintiff’s federal lawsuit tolled the applicable
limitations period. MCL 600.5807 provides, in pertinent part:
No person may bring or maintain any action to recover damages or sums
due for breach of contract, or to enforce the specific performance of any contract
unless, after the claim first accrued to himself or to someone through whom he
claims, he commences the action within the periods of time prescribed by this
section.
***
(8) The period of limitations is 6 years for all other actions to recover
damages or sums due for breach of contract.
MCL 600.5813 provides that “[a]ll other personal actions shall be commenced within the period
of 6 years after the claims accrue and not afterwards unless a different period is stated in the
statutes.” Thus, plaintiff’s claims for breach of contract and fraud are each subject to a six-year
statute of limitations. The statute of limitations for plaintiff’s conspiracy claim, however, “takes
on the limitations period of the underlying wrong that was the object of the conspiracy.”
Terlecki v Stewart, 278 Mich App 644, 653; 754 NW2d 899 (2008). Here, plaintiff’s conspiracy
claim was related to her fraud claim and would also be subject to a six-year statute of limitations.
MCL 600.5813; Terlecki, 278 Mich App at 653.
MCL 600.5827 specifies when a claim “accrues”:
Except as otherwise expressly provided, the period of limitations runs
from the time the claim accrues. The claim accrues at the time provided in
sections [MCL 600.5829 to MCL 600.5838], and in cases not covered by these
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sections the claim accrues at the time the wrong upon which the claim is based
was done regardless of the time when damage results.
It is undisputed that plaintiff’s claims are not covered by the statutory subsections MCL
600.5829 to MCL 600.5838. Therefore, her claim accrued, “at the time the wrong upon which
the claim is based was done.” MCL 600.5827; see also Boyle v Gen Motors Corp, 468 Mich
226, 231; 661 NW2d 557 (2003) (“[A] claim accrues when the wrong is done.”).
Plaintiff’s complaint contends that defendants breached the insurance contract they
entered into with plaintiff by giving the insurance proceeds to a nonparty to the contract,
committed insurance fraud by paying those proceeds to a nonparty, and conspired with the
nonparty in furtherance of the fraud. Thus, it is clear that plaintiff’s claims all flow directly from
defendants’ disbursement of insurance funds to David Findling, the court-appointed receiver.
Plaintiff first contends that the March 12, 2004 order that the trial court found to be the basis for
the accrual date was entered in her parents’ divorce case, and therefore, that court never had
jurisdiction over plaintiff and could not enter orders to which she would be bound. However, the
trial court properly found that the 8995 Henry Ruff Road property was included in the marital
estate, and therefore, the divorce court had legitimate jurisdiction over the property and its
insurance proceeds. Additionally, though plaintiff contends that she was not a party to the
divorce action, this Court previously noted that other orders in that case “list[ed] plaintiff as a
third party defendant. Plaintiff provides no factual support for her argument that she is
erroneously listed as a party. A party may not merely announce its position and leave it to the
Court to discover and rationalize the basis for its claims.” McCormick v Hanover Group, Inc,
unpublished opinion per curiam of the Court of Appeals, issued May 15, 2012 (Docket No.
302011), p 6 n 7, citing Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998). Further,
the September 10, 1999 order from Judge Lucas finding that the property belonged solely to the
estate of plaintiff’s father provides:
This matter having come on to be heard on the Motions of Eric A.
Braverman, Personal Representative of the Estate of Edward McCormick,
Deceased, for the entry of the Order Determining Title to Real Estate and
Disposing of Plaintiff’s Claims regarding Alimony and the Division of the
Medical Malpractice Suit, Motion for Attorneys Fees, and Motion for the Court to
Adopt Certain Findings of Fact and all parties having been given notice of this
hearing and Linda McCormick and Mary McCormick having appeared in Court
to respond to said motions and the Court being duly advised in the premises.
[Emphasis added.]
Plaintiff has provided no support for her contention that she was not a party to the divorce
proceedings, and the documentary evidence before the trial court contradicts her contention.
Second, plaintiff contends that the March 12, 2004 order compelling Citizens to disburse
proceeds from the insurance policy to the appointed receiver was not the accrual date because
that order only allows the receiver to take control of insurance proceeds “when and if issued.”
However, plaintiff’s assertion is unsupported by the order itself. The order explicitly states:
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IT IS HEREBY ORDERED that the Receiver’s motion is granted.
IT IS FURTHER HEREBY ORDERED that David Findling, Court
Appointed Receiver, is granted the authority to take control of the insurance
proceeds for the property commonly known as 8995 Henry Ruff Road, Livonia,
Michigan, with a legal description of:
Lot 10, Smiley-Ringwald Subdivision, as recorded in Liber 77, Page 35 of
Plats, Wayne County Records (the “Property”).
IT IS FURTHER HEREBY ORDERED that Citizens Insurance Company,
which held the insurance policy in effect for the Property on December 18, 2003,
shall disburse the insurance proceeds to David Findling, Court Appointed
Receiver.
Thus, despite plaintiff’s contention, the 2004 order to compel explicitly required defendants to
pay the insurance proceeds to the court appointed receiver. Though plaintiff also claims that her
accrual date did not arise until November 12, 2004, when Citizens actually disbursed the funds, it
does not matter that defendants continued to contest this order for that time. Citizens was only
given the authority, and explicitly ordered, to disburse funds to the receiver because of the March
12, 2004 divorce court order. Because it was this very disbursement that plaintiff relies upon for
her claims of breach of contract, fraud, and conspiracy, the trial court properly found that the
accrual date of plaintiff’s claims was March 12, 2004.
Next, plaintiff claims that the trial court erred when it found that the statute of limitations
was not tolled regarding plaintiff’s claims against Citizens and Weber. “[T]he statute of
limitations is tolled during the time a prior suit is pending between the parties if the prior action
is not adjudicated on the merits.” Roberts v City of Troy, 170 Mich App 567, 581; 429 NW2d
206 (1988). The statute of limitations is also tolled while parties litigate a claim in federal court,
if the court dismisses the claim without prejudice. Id. This exception does not apply to different
causes of action seeking different relief. See Lenz v Detroit, 376 Mich 156, 160; 135 NW2d 904
(1965) (holding that a plaintiff’s cause of action seeking damages for unlawful discharge was not
tolled by a prior suit in which the plaintiff sought mandamus to compel his reinstatement).
Plaintiff filed two separate federal lawsuits that could possibly have tolled the statute of
limitations on plaintiff’s claims against one or more defendants. On February 20, 2004, plaintiff
filed a lawsuit against Citizens and David Findling in the United States District Court for the
Eastern District of Michigan. That complaint included three counts: (1) “violation of civil rights,
First Amendment petition for redress, seizure and deprivation of non-party plaintiff’s property”;
(2) “violation of civil rights, fourth amendment illegal search and seizure and abuse of process”;
and (3) “violation of civil rights, First, Fifth and Fourteenth Amendments, deprivation of
property, redress and due process of law, and violations of the doctrines [of] res judicata[,]
estopple [sic] by judgment, declaratory judgment.” While the 2004 lawsuit did include plaintiff
and Citizens as parties, it is clear that the causes of action in the two cases, i.e., breach of
contract, fraud, and conspiracy in the state court case, and numerous allegations of constitutional
rights violations in the federal court case, were completely different causes of action seeking
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different relief. Id. Thus, plaintiff’s 2004 federal complaint and corresponding lawsuit did not
toll the statute of limitations.
On April 7, 2006, plaintiff filed a lawsuit against Hanover, alleging numerous violations
of her constitutional rights, as well as “insurance fraud, embezzlement, mail fraud, wire fraud,
and financial institutional fraud.” McCormick v Hanover Ins Group, Inc, unpublished opinion of
the United States District Court for the Eastern District of Michigan, issued December 8, 2006
(Docket No. 06-11719). In the federal district court’s opinion dismissing plaintiff’s lawsuit
under FR Civ P 12(b)(6), and for lack of diversity jurisdiction, the court noted that plaintiff
“asserts that she intentionally chose to sue [Hanover] and not Citizens because [Hanover and
Hanover Insurance Company] are the ones who violated federal law.” Id. The federal district
court further noted:
Defendants concede that Hanover Group owns Citizens. Defendants
attach a copy of their corporate structure as evidence that each subsidiary is
wholly owned and a separate entity apart from Hanover Group. The corporate
structure chart appears to illustrate that Hanover Group is the parent corporation
of both Hanover and Citizens. It also appears to illustrate that Citizens is a
subsidiary of Hanover. [Id. at n 2.]
Thus, it is clear that of the parties in the instant lawsuit, only plaintiff and Hanover were parties
to the 2006 federal court complaint. While this lawsuit alleged claims of fraud that arguably
tolled the statutes of limitations for plaintiff’s claims,3 “the statute of limitations is tolled during
the time a prior suit is pending between the parties,” Roberts, 170 Mich App at 581 (emphasis
added), and Citizens and Weber were not parties to the 2006 federal lawsuit. Therefore, the trial
court did not err when it granted Citizens’ and Weber’s motion for summary disposition pursuant
to MCR 2.116(C)(5) because plaintiff’s claims accrued on March 12, 2004, the statute of
limitations was not tolled by the 2004 or 2006 federal lawsuits, and plaintiff’s complaint, filed on
March 31, 2010, was filed after the conclusion of the six-year statute of limitations applicable to
all three of plaintiff’s claims.
III. DEFAULT JUDGMENT
Plaintiff next contends that the trial court erred in failing to enter a default judgment
against defendants for their failure to file an answer to plaintiff’s complaint for over three years.
We disagree.
This Court reviews a trial court’s decision whether to grant or deny a default judgment
for an abuse of discretion. Huntington Nat’l Bank v Ristich, 292 Mich App 376, 383; 808 NW2d
511 (2011). A trial court abuses its discretion when it reaches a decision that falls outside the
range of principled outcomes. King v Oakland Co Prosecutor, 303 Mich App 222, 225; 842
NW2d 403 (2013). Further, and to the extent necessary for the resolution of this issue,
3
Neither party disputes the trial court’s conclusion that the 2006 federal lawsuit tolled the
statutes of limitations for plaintiff’s claims, as they pertained to Hanover.
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“[i]nterpretation of a court rule is a question of law that this Court reviews de novo.” Wilcoxon v
Wayne Co Neighborhood Legal Servs, 252 Mich App 549, 553; 652 NW2d 851 (2002).
MCR 1.105 provides that the court rules “are to be construed to secure the just, speedy,
and economical determination of every action and to avoid the consequences of error that does
not affect the substantial rights of the parties.” MCR 2.603(A)(1) provides:
If a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules, and that fact is
made to appear by affidavit or otherwise, the clerk must enter the default of that
party. [Emphasis added.]
Under MCR 2.108(A)(1), defendants were required to file an answer or other responsive
pleading within 21 days after being served with the summons and copy of the complaint.
Plaintiff’s original complaint was filed on March 31, 2010. Plaintiff’s amended
complaint was filed on June 29, 2010. Service of the complaint was not noted in the lower court
record until July 20, 2010. On August 2, 2010, less than 21 days after service of the complaint,
Hanover, Citizens, and Weber filed a motion for summary disposition, which ultimately led to
dismissal of plaintiff’s complaint. Defendants’ motion for summary disposition was a proper
vehicle through which they could “otherwise defend” the lawsuit against them within the court
rules, MCR 2.603(A)(1), as evidenced by the fact that it led to a complete dismissal of plaintiff’s
claims against them. After this Court reversed the trial court order dismissing plaintiff’s claims
against Hanover, Citizens, and Weber, and remanded the case to the trial court, the parties
enthusiastically engaged in discovery efforts, including numerous interrogatories, requests to
admit, depositions, and motions to compel. Despite defendants’ failure to file an answer and
affirmative defenses with the trial court, at no point did defendants fail to “otherwise defend as
provided by [the court] rules.” MCR 2.603(A)(1). Michigan policy favors the meritorious
determination of issues, and therefore disfavors the entry of default judgments in most cases.
Helder v North Pointe Ins Co, 234 Mich App 500, 506; 595 NW2d 157 (1999), rev’d on other
grounds 462 Mich 92 (2000). The merits of such a policy are obvious in cases such as this,
where the parties actively litigated and conducted discovery in the lawsuit, despite the fact that
defendants inadvertently failed to file an answer to plaintiff’s complaint.
Additionally, the trial court correctly found that plaintiff suffered no prejudice from
defendants’ delay. Plaintiff asserts that she was prejudiced by defendants’ delay because she
was unaware of some of the defenses raised after discovery was completed, including lack of
insurable interest. However, plaintiff claimed that she held legal and rightful title to the property
at issue numerous times before defendants’ filing of their affirmative defenses. Plaintiff did not
suffer any prejudice from defendants’ delay because she had asserted her ownership of the 8995
Henry Ruff Road property throughout the litigation. Therefore, the trial court’s denial of
plaintiff’s request for a default judgment was properly denied “to avoid the consequences of
error that does not affect the substantial rights of the parties.” MCR 1.105.
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IV. FINDINGS OF FACT
Plaintiff also contends that the trial court relied on erroneous facts in its determination
regarding defendants’ motion for summary disposition. We disagree.
A trial court’s findings of fact are reviewed for clear error. Mericka v Dep’t of
Community Health, 283 Mich App 29, 36; 770 NW2d 24 (2009).
Plaintiff first contends that the statute of limitations has expired against any affirmative
defenses defendants may claim regarding plaintiff’s lack of insurable interest. However, plaintiff
has cited no law supporting the proposition that affirmative defenses, such as lack of an insurable
interest, are subject to statutes of limitations. Therefore, plaintiff has abandoned this issue on
appeal. Etefia v Credit Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001)
(“Insufficiently briefed issues are deemed abandoned on appeal.”). Further, even addressing
plaintiff’s unsupported contention on its merits, it is clear that statutes of limitations apply to
legal actions, not affirmative defenses. See, e.g., MCL 600.5807 (“No person may bring or
maintain any action to recover damages or sums due for breach of contract, or to enforce the
specific performance of any contract unless, after the claim first accrued to himself or to
someone through whom he claims, he commences the action within the periods of time
prescribed by this section.”) (emphasis added).
Second, plaintiff contends that the trial court erred in relying upon the September 10,
1999 order of Judge Lucas in the divorce action of plaintiff’s parents. Plaintiff contends that the
1999 order “contained error after error,” did not address a March 21, 1980 quitclaim deed
transferring the property to plaintiff, and that plaintiff should not be subject to the 1999 order
because she was not a party to that case. Judge Lucas’s order stated that plaintiff had assisted
her mother in preparing legal documents devoid of any merit, this Court’s opinion in McCormick
v McCormick, 221 Mich App at 672, permitted Judge Lucas to award the 8995 Henry Ruff Road
property to the marital estate, and no other conveyance of the property prohibited the divorce
court from awarding the property to the marital estate. The order provided that the property was
“the sole and separate property of the Estate of Edward McCormick,” plaintiff’s father, subject to
a life estate reserved for Mary McCormick, plaintiff’s mother. Additionally, and despite
plaintiff’s contentions, the very first paragraph of Judge Lucas’s order provided that plaintiff
appeared before the court in her parents’ divorce case, and participated in Judge Lucas’s
determination. Again, plaintiff has provided no evidence contradicting this order.
An insurance policy must be supported by an insurable interest, and a policy that is not so
supported is void. Corwin v DaimlerChrysler Ins Co, 296 Mich App 242, 257, 258; 819 NW2d
68 (2012). “An ‘insurable interest’ need not be in the nature of ownership, but rather can be any
kind of benefit from the thing so insured or any kind of loss that would be suffered by its damage
or destruction.” Morrison v Secura Ins, 286 Mich App 569, 572-573; 781 NW2d 151 (2009).
This requirement “arises out of the venerable public policy against ‘wager policies’; which, as
eloquently explained by Justice COOLEY, are insurance policies in which the insured has no
interest, and they are held to be void because such policies present insureds with unacceptable
temptation to commit wrongful acts to obtain payment.” Id. at 572. Here, the unrefuted 1999
order from the divorce action between plaintiff’s parents states, unequivocally, that the property
was solely owned by the estate of Edward McCormick. Plaintiff’s insurance policy with
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Citizens provided, under the heading “Conditions,” that Citizens would not be liable “to the
‘insured’ for more than the amount of the ‘insured’s’ interest at the time of loss.” Because
plaintiff had no ownership interest in the subject property, the trial court properly granted
summary disposition to Citizens and Weber. On the basis of the entire record it is clear that no
mistake has been made, and the trial court did not clearly err in finding that plaintiff had no
insurable interest in the 8995 Henry Ruff Road property.
V. GENUINE ISSUE OF MATERIAL FACT
Finally, plaintiff contends that the trial court erred in granting summary disposition in
defendants’ favor because there were outstanding genuine issues of material fact, i.e., whether
defendants breached their contract with plaintiff, such that summary disposition was improper.
Again, we disagree.
This Court reviews de novo the grant or denial of summary disposition. Ligon, 276 Mich
App at 124. A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412
(2012). In reviewing a grant of summary disposition under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party. Sallie v Fifth Third Bank, 297 Mich App 115, 117-118; 824
NW2d 238 (2012). Summary disposition is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); Latham
v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A genuine issue of material
fact exists when, after viewing the evidence in the light most favorable to the nonmoving party,
the record leaves open an issue upon which reasonable minds may differ. Debano-Griffin v Lake
Co, 493 Mich 167, 175; 828 NW2d 634 (2013).
“A material fact is an ultimate fact issue upon which a jury’s verdict must be based.”
Belmont v Forest Hills Pub Sch, 114 Mich App 692, 696; 319 NW2d 386 (1982); see also
Black’s Law Dictionary (9th ed) (providing that a material fact is “[a] fact that is significant or
essential to the issue or matter at hand”). Plaintiff contends that the trial court never considered
whether plaintiff’s homeowner’s insurance policy was breached, and this constituted a genuine
issue of material fact, such that summary disposition was improper.
The trial court granted summary disposition to defendants on numerous grounds,
including: (1) statute of limitations, i.e., MCR 2.116(C)(7); (2) lack of legal capacity to sue due
to plaintiff’s lack of insurable interest, i.e., MCR 2.116(C)(5); (3) failure to state a claim on
which relief can be granted because defendants’ disbursement of funds to the receiver were
required by valid court orders, i.e., MCR 2.116(C)(8); and (4) no genuine issue of material fact
that defendants were entitled to judgment as a matter of law because defendants’ disbursement of
funds to the receiver were required by valid court orders, i.e., MCR 2.116(C)(10). Even if
plaintiff was correct that the trial court erred in granting summary disposition to defendants
because there were outstanding issues of material fact, summary disposition in defendants’ favor
would still be proper on the other grounds the trial court relied upon, and therefore, reversal
would not be proper. See Amerisure Ins Co v Auto-Owners Ins Co, 262 Mich App 10, 21; 684
NW2d 391 (2004) (“[W]e will not reverse a trial court’s decision when it reaches the right result
for the wrong reasons.”).
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Additionally, plaintiff’s proffered “genuine issue of material fact” is not material to the
determination below. The trial court granted defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(10), i.e., the claim for which there must be no genuine issue of
material fact, because defendants were “following court orders that were never reversed,
overruled, stricken, or otherwise found to be invalid” when they disbursed the insurance funds to
the court appointed receiver. The underlying issue of whether defendants breached their
insurance contract with plaintiff was not material because plaintiff’s claims could be dismissed
before ever reaching that issue. The issue of breach of contract was not “an ultimate fact issue
upon which a jury’s verdict must be based.” Belmont, 114 Mich App at 696. Therefore, there
was no genuine issue of material fact and summary disposition in defendants’ favor was proper.
Affirmed. Having prevailed on appeal, defendants may tax their costs pursuant to MCR
7.219.
/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Michael F. Gadola
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