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
ADORA WILMORE-MOODY, Individually and as UNPUBLISHED
Next Friend of DAIMLER AAKU, May 6, 2021
Plaintiff/Counterdefendant-Appellant,
v No. 352411
Wayne Circuit Court
MOHAMMED ZAKIR, LC No. 18-002518-NI
Defendant-Appellee,
and
EVEREST NATIONAL INSURANCE CO,
Defendant/Counterplaintiff-Appellee,
and
PDB INVESTMENTS & INSURANCE CO,
MICHIGAN ASSIGNED CLAIMS PLAN, and
MICHIGAN AUTOMOBILE INSURANCE
PLACEMENT FACILITY,
Defendants.
Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.
GLEICHER, P.J. (concurring in part and dissenting in part)
I concur with the majority’s holding that plaintiff Adora Wilmore-Moody’s third-party
negligence claim against defendant Mohammed Zakirmay should proceed. The majority correctly
reasons that Wilmore-Moody had security in place at the time of the accident as required under
MCL 500.3135(2)(c), and that a subsequent rescission does not change that fact.
I respectfully dissent regarding the majority’s resolution of Wilmore-Moody’s first-party
claim. The majority holds that Wilmore-Moody “did not present any evidence that the omission
or misrepresentation was not intentional and there is no genuine issue of material fact on this record
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that the misrepresentation was intentional.” Relying on Titan Ins Co v Hyten, 491 Mich 547, 570;
817 NW2d 562 (2012), the majority concludes that Wilmore-Moody fraudulently misrepresented
that she was the only driver who lived in her home.
In my view, defendant Everest National Insurance Co has not produced evidence that
Wilmore-Moody intended to misrepresent that her granddaughter lived in her home to obtain
insurance. The burden of establishing intent rests on defendant Everest, and I can discern no
evidence of such intent in this record. “The granting of a motion for summary disposition is
especially suspect where motive and intent are at issue or where a witness or deponent’s credibility
is crucial.” Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525 (1994). Furthermore,
the trial court failed to address the equities of rescission. “Because a claim to rescind a transaction
is equitable in nature, it is not strictly a matter of right but is granted only in the sound discretion
of the court.” Bazzi v Sentinel Ins Co, 502 Mich 390, 409; 919 NW2d 20 (2018) (quotation marks
and citation omitted). The Supreme Court noted in Bazzi:
[R]escission does not function by automatic operation of the law. Just as the
intervening interest of an innocent third party does not altogether bar rescission as
an equitable remedy, neither does fraud in the application for insurance imbue an
insurer with an absolute right to rescission of the policy with respect to third parties.
Equitable remedies are adaptive to the circumstances of each case, and an absolute
approach would unduly hamper and constrain the proper functioning of such
remedies. [Id. at 411.]
The trial court failed to exercise any discretion when it rescinded the insurance policy,
reflexively granting summary disposition based on Wilmore-Moody’s failure to include her
granddaughter’s name on the application. I would reverse the trial court’s rescission ruling in the
first-party case, and remand for a determination of whether the rescission is warranted given the
equities and the conduct of all parties to the contract.
/s/ Elizabeth L. Gleicher
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