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
LAWRENCE S. HOLMAN, FOR PUBLICATION
August 4, 2022
Plaintiff-Appellant, 9:00 a.m.
v No. 357473
Oakland Circuit Court
FARM BUREAU GENERAL INSURANCE LC No. 2019-178713-NI
COMPANY OF MICHIGAN, JONATHAN
HEINZMAN AGENCY, INC., and JONATHAN
HEINZMAN,
Defendants-Appellees.
Before: SHAPIRO, P.J., and RICK and GARRETT, JJ.
SHAPIRO, P.J.
In a prior action, this Court held that defendant Farm Bureau General Insurance Company
of Michigan was entitled to rescind plaintiff’s insurance policy for material misrepresentations
made in the application. This Court reasoned that, regardless whether plaintiff or his insurance
agent contributed the false information, plaintiff affirmed any misrepresentation by signing the
application. Plaintiff then brought the instant action alleging that his insurance agent was negligent
in filling out the application. The trial court granted summary disposition to defendants on the
basis of collateral estoppel. We reverse and hold that this Court’s prior decision granting rescission
to the insurer does not preclude a negligence action against the insurance agent.
I. BACKGROUND
On December 30, 2014, plaintiff purchased a 2007 Mercury Mountaineer from a car
dealership. To obtain insurance, plaintiff called Farm Bureau sales agent Jonathan Heinzman.
Heinzman testified that he filled out the insurance application on the basis of answers he received
from plaintiff over the phone. The completed application answers negatively to the following
question: “Has the Applicant or a member of the Applicant’s household driven or moved any
vehicle owned by the Applicant which has NOT had the required insurance in force for the
preceding six months?” A AAA policy number is then listed as plaintiff’s current insurance, with
an expiration date of January 15, 2015. Heinzman faxed plaintiff a temporary certificate of
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insurance and asked plaintiff to send proof of his prior insurance. That evening, plaintiff faxed
Heinzman a AAA certificate of insurance that expired in 2013.
Heinzman reviewed the AAA certificate of insurance on January 5, 2015, and informed
plaintiff that he needed to provide proof of current insurance. Plaintiff responded that he only had
the 2013 certificate. Plaintiff’s application was sent to Farm Bureau without proof of prior
insurance. On January 30, 2015, Farm Bureau sent plaintiff a letter explaining that his application
could not be accepted because it was incomplete. Plaintiff asserts that he did not receive this notice
before the motor vehicle crash on February 5, 2015, in which he suffered extensive injuries. He
remained hospitalized in a medically induced coma for several weeks following the crash.
Plaintiff brought suit against Farm Bureau to recover PIP benefits arising from the accident,
and the trial court granted summary disposition to Farm Bureau. In Holman v Mossa-Basha
(Holman I), unpublished per curiam opinion of the Court of Appeals, issued November 29, 2018
(Docket Nos. 338210, 338232), a panel of this Court affirmed the trial court’s ruling that a notice
of cancellation was not required for the temporary certificate of insurance because it expired by its
own terms on January 29, 2015, and therefore plaintiff did not have coverage on the date of the
crash. Id. at 4-6, 9. This panel also held, however, that Farm Bureau was entitled to rescind the
policy for misrepresentations made in the insurance application. Farm Bureau identified two
misrepresentations made by plaintiff in the application: “(1) that he did not operate an uninsured
motor vehicle owned by him in the six-month period preceding his insurance application; and (2)
that he held current automobile insurance at the time of his application.” Id. at 7. The record
evidence demonstrated that these representations were false and material. Id. Plaintiff argued that
Heinzman was responsible for the AAA policy number that was presented in the application as
plaintiff’s existing insurance, which the panel addressed as follows:
Much of plaintiff’s counter-argument on appeal regarding this issue focuses
on his assertion that Heinzman provided a “bogus” AAA policy number in the
application. This distinction, however, is meaningless because “[a] contracting
party has a duty to examine a contract and know what the party has signed, and the
other contracting party cannot be made to suffer for neglect of that duty.”
Montgomery v Fidelity & Guaranty Life Ins Co, 269 Mich App 126, 130; 713
NW2d 801 (2005). Plaintiff signed the application after having had the opportunity
to read and review it. Specifically, at his deposition, plaintiff stated that his
signature appeared on the application, and when asked whether he read the form
before signing it, he responded, “I skimmed over it, yes.” Therefore, because
plaintiff signed the application after he “skimmed over it,” he affirmed any
representations or misrepresentations in the document. Id. at 129-130.
Because plaintiff misrepresented that he did not operate an uninsured motor
vehicle owned by him in the six-month period preceding his insurance application
and that he held current auto insurance at the time of his application, Farm Bureau
was entitled to rescind ab initio any coverage plaintiff might have had under the
certificate of insurance. Therefore, notwithstanding that plaintiff was not insured
on February 5, 2015, because the policy expired on its own terms on January 29,
2015, defendants were entitled to summary disposition on the alternative grounds
of misrepresentation. [Holman I, unpub op at 7-8.]
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Plaintiff then brought the instant action alleging negligence against Heinzman1 and
vicarious liability against Farm Bureau. Both plaintiff and Heinzman were deposed in the prior
action and testified to matters that did not appear in this Court’s opinion in Holman I because they
were not relevant to that appeal. In short, plaintiff and Heinzman have competing versions of
events as to who contributed the false information to the insurance application.
Heinzman testified that plaintiff first contacted him in September 2014 for purposes of
obtaining insurance for the vehicle he had at that time. Heinzman testified that during this
conversation plaintiff provided him what was later deemed to be a “fake” AAA policy number as
his existing insurance, which Heinzman later included in the Farm Bureau application. Plaintiff
did not recall this conversation or contacting Heinzman in September 2014, but he denied giving
him the invalid AAA policy number and did not know where it came from. As to the eligibility
questions, Heinzman testified that he asked plaintiff each question and accurately recorded his
response. Plaintiff testified that Heinzman paraphrased the eligibility questions and that he did not
ask whether he or a household member had driven an uninsured vehicle owned by plaintiff in the
last six months.
The parties also dispute what occurred after Heinzman learned that plaintiff did not have
current insurance. Heinzman testified that he knew that Farm Bureau would cancel plaintiff’s
policy. According to his notes of his communications with plaintiff, however, Heinzman told
plaintiff on January 6, 2015, that Farm Bureau would “probably” cancel the policy. Similarly,
after receiving an e-mail from Farm Bureau regarding the missing proof of prior insurance,
Heinzman called plaintiff on January 7, 2015, and told him that Farm Bureau “may terminate
coverage.” Heinzman also testified that he offered to look for coverage for plaintiff through a
different insurance company. In contrast, plaintiff denied that Heinzman told him that Farm
Bureau would not be insuring him or that he needed to look for other coverage. Plaintiff testified
that when he spoke to Heinzman on February 1 or 2, 2015, Heinzman said that the Farm Bureau
application was “taking too long in underwriting” and offered to look for coverage elsewhere as a
“backup plan” in case the application was not approved. Heinzman found a quote for plaintiff
through AAA, but plaintiff turned it down on February 3, 2015, because it was too expensive.
Heinzman moved for summary disposition of the instant suit, arguing that plaintiff’s claims
were barred by the doctrines of res judicata and collateral estoppel. Heinzman contended that
Holman I clearly placed the burden on plaintiff to ensure that information contained in the
application was accurate, even if it was Heinzman who filled it out. Farm Bureau filed a
concurrence with Heinzman’s motion. In response, plaintiff argued that neither res judicata nor
collateral estoppel applied when Holman I did not decide whether Heinzman contributed to any
misrepresentation. Plaintiff argued that his failure to ensure that the application was accurate was
relevant to his comparative negligence but did not bar his action.
The trial court issued an opinion and order granting Heinzman’s motion for summary
disposition. The court determined on the basis of collateral estoppel that Holman I was dispositive
of the causation element of plaintiff’s negligence action. The court reasoned that this Court
1
Jonathan Heinzman Agency, Inc., is also named as a defendant. For simplicity, we will refer to
Heinzman and his agency collectively as “Heinzman.”
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actually and necessarily determined that plaintiff made the misrepresentations in the application
for insurance. This appeal followed.
II. ANALYSIS
Plaintiff argues that the trial court erred by concluding that his negligence action against
Heinzman was barred by the doctrine of collateral estoppel.2
“The doctrine of collateral estoppel precludes relitigation of an issue in a subsequent,
different cause of action between the same parties when the prior proceeding culminated in a valid
final judgment and the issue was actually and necessarily determined in that prior proceeding.”
King v Munro, 329 Mich App 594, 599; 944 NW2d 198 (2019) (quotation marks and citation
omitted). “Generally, for collateral estoppel to apply three elements must be satisfied: (1) a
question of fact essential to the judgment must have been actually litigated and determined by a
valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate
the issue; and (3) there must be mutuality of estoppel.” William Beaumont Hosp v Wass, 315 Mich
App 392, 398; 889 NW2d 745 (2016) (quotation marks and citation omitted).
“To establish a prima facie case of negligence, a plaintiff must prove the following
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal
duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of
the plaintiff’s damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;
809 NW2d 553 (2011). The trial court concluded that Holman I held that plaintiff made the
misrepresentations in the application and that, as a result, plaintiff could not establish that any
negligent conduct by Heinzman caused plaintiff’s damages. Plaintiff argues that Holman I did not
decide whether plaintiff or Heinzman made the misrepresentations, only that plaintiff ratified any
misrepresentations by signing the application. We agree with plaintiff.
As noted, the Holman I panel determined that it was “meaningless” whether Heinzman
provided the “bogus” AAA policy number in the application because plaintiff, as the contracting
party, had a duty to read the contract and know what he signed. Holman I, unpub op at 7. In other
words, the panel did not need to decide whether any misrepresentation was attributable to plaintiff
or Heinzman for purposes of determining whether Farm Bureau was entitled to rescission because
2
We review de novo a trial court’s decision on a motion for summary disposition. Haydaw v Farm
Bureau Ins Co, 332 Mich App 719, 723 n 3; 957 NW2d 858 (2020). The applicability of legal
doctrines, such as res judicata and collateral estoppel, is also reviewed de novo. See Estes v Titus,
481 Mich 573, 578-579; 751 NW2d 493 (2008). The trial court granted summary disposition
under MCR 2.116(C)(10), which is proper if “there is no genuine issue as to any material fact, and
the moving party is entitled to judgment or partial judgment as a matter of law.” “The court must
consider the affidavits, pleadings, depositions, admissions, and other documentary evidence
submitted by the parties in the light most favorable to the party opposing the motion.” Liparoto
Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). “A genuine issue
of material fact exists when the record, giving the benefit of reasonable doubt to the opposing
party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468 (2003).
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plaintiff affirmed the contents of the application as the signing party. Farm Bureau points out that
Holman 1 then summarizes the matters that “plaintiff misrepresented,” id. at 8, and argues that this
shows the panel necessarily decided plaintiff made the misrepresentations. This statement must
be read in context, however. The panel had just explained that it was irrelevant who made the
misrepresentations because the contents of the application were ratified by plaintiff. The
subsequent statement indicating that plaintiff made the misrepresentations merely reflects that
ruling. For these reasons, Holman I did not actually and necessarily decide whether plaintiff or
Heinzman made the misrepresentations.
Defendants alternatively argue that even if this Court did not actually decide who made the
misrepresentations, the conclusion that plaintiff ratified any misrepresentation is nonetheless
dispositive of the causation element because it is plaintiff, rather than the insurance agent, who is
responsible for the contents of the application. What this reasoning overlooks, however, is that
Holman I and the case it relied on, Montgomery, 269 Mich App 126, concerned the remedy of
rescission in a contract case, while this is a tort action.
“An insurance policy is much the same as any other contract,” and the application is
considered part of the contract. Dancey v Travelers Prop Cas Co, 288 Mich App 1, 8; 792 NW2d
372 (2010) (quotation marks and citation omitted). The pertinent issue in Montgomery was
whether the insurer could rescind a life insurance policy for misrepresentations in the application
when the insured claimed that the insurance agent had completed the application and neither the
insured nor the decedent reviewed it. Montgomery, 269 Mich App at 129. This Court found in
favor of the insurer, relying on the principles of contract law that “failure to read an agreement is
not a valid defense to enforcement of a contract” and “[a] contracting party has a duty to examine
a contract and know what the party has signed, and the other contracting party cannot be made to
suffer for neglect of that duty.” Id. at 130. Stated differently, under contract law, a signing party
is bound by the contract’s terms, regardless of whether they have read them. Accordingly, it is
immaterial who contributed false information to an insurance application for purposes of
determining whether an insurer may rescind a policy. But the contract principles relied on in
Holman I and Montgomery have no application in a negligence action concerning whether the
insurance agent breached a duty to the insured. See Phillips v Butterball Farms Co, Inc, 448 Mich
239, 251; 531 NW2d 144 (1995) (recognizing that tort actions are not limited by contract
principles).
Indeed, this Court’s decision in Zaremba Equip, Inc v Harco Nat’l Ins Co, 280 Mich App
16; 761 NW2d 151 (2008), shows that an insured’s duty to read insurance policy documents does
not preclude a negligence action against the insurance agent. In that case, the plaintiff alleged
negligence against the insurance agent on the basis that the agent failed to obtain the requested
coverage or accurately represent the coverage obtained in the renewal policy. Id. at 20-21. The
jury found in favor of the plaintiff, and on appeal this Court held that the trial court erred by failing
to instruct the jury on comparative negligence regarding the plaintiff’s failure to read the insurance
policy and related documents:
Because plaintiff’s negligence claims in the instant case are tort-based, we conclude
that the plain language of MCL 600.6304 and MCL 600.2957[, i.e., the comparative
fault statutes,] required the trial court to give defendants’ requested instruction
regarding comparative negligence. We additionally conclude that plaintiff’s
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admitted failure to read the policy could qualify as comparative negligence and that
the trial court should have permitted the jury to consider whether plaintiff
unreasonably failed to read [the insurance policy and related documents]. [Id. at
33.]
Significantly, although Zaremba acknowledged an insured’s duty to read the policy, this
Court did not hold that the insured’s failure to do so was dispositive of the tort claim against the
agent (as it would be in a dispute with the insurer governed by contract law). Rather, we held that
the insured’s failure to read the insurance application and related documents was relevant to
comparative negligence, and that the jury could reasonably determine that it was the proximate
cause of the insured’s damages. See id. at 34-35. Applied here, an insured’s failure to identify a
misrepresentation in the application allegedly made by the insurance agent should not preclude a
negligence action, but it may be considered by a jury when determining comparative fault and
proximate cause.
Defendants correctly observe that Zaremba concerned an agent’s duty to advise on the
adequacy of coverage. Generally, “insurance agents have no duty to advise the insured regarding
the adequacy of insurance coverage.” Harts v Farmers Ins Exch, 461 Mich 1, 7; 597 NW2d 47
(1999). “[A]n agent’s job is to merely present the product of his principal and take such orders as
can be secured from those who want to purchase the coverage offered.” Id. at 8. But a “special
relationship” can be created that gives rise to a duty to advise in certain circumstances. See id.
at 10-11.
While Zaremba concerned an insurance agent’s duty to advise on the adequacy of
coverage, this case primarily concerns the scope of an agent’s duty in preparing the application,
which Michigan caselaw has not expressly addressed. However, given that captive insurance
agents are “order takers,”3 Harts, 461 Mich at 9, it follows that there is a duty to do so accurately
and not contribute false information to the application, whether purposefully or mistakenly. Thus,
it is not necessary for us to determine whether there was a special relationship between plaintiff
and Heinzman because this case falls within the more general, limited duty to take orders described
in Harts.4 Harts, 461 Mich at 8. And under Zaremba, plaintiff’s corresponding duty to review
3
Heinzman was a captive agent for Farm Bureau.
4
Plaintiff’s complaint also implies that Heinzman breached a duty by failing to explicitly tell
plaintiff that his insurance policy would be cancelled and that he needed to obtain other coverage.
We are not aware of any caselaw addressing whether an insurance agent has a duty to advise the
insured about a forthcoming cancellation or rejection of an application. Even if no such duty
exists, however, “[w]hen a person voluntarily assumes a duty not otherwise imposed by law, that
person is required to perform it carefully, not omitting to do what an ordinarily prudent person
would do in accomplishing the task.” Zine v Chrysler Corp, 236 Mich App 261, 277; 600 NW2d
384 (1999) (quotation marks and citation omitted). And there is a question of fact regarding the
efforts Heinzman made to communicate the pending or potential cancellation of plaintiff’s policy.
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the entire application may be considered in determining comparative fault, but it does not bar a
negligence action against Heinzman.5
Reversed and remanded for further proceedings. We do not retain jurisdiction. Plaintiff
may tax costs as the prevailing party. See MCR 7.219(A).
/s/ Douglas B. Shapiro
/s/ Michelle M. Rick
/s/ Kristina Robinson Garrett
5
Farm Bureau alternatively contends that there is no material question of fact that the
misinformation in the application came from plaintiff. Farm Bureau primarily argues that because
plaintiff does not recall (but also does not dispute) that he sought insurance from Heinzman in
September 2014, he is not in a position to dispute Heinzman’s recitation of that discussion,
including that plaintiff provided the “bogus” AAA policy number at that time. However, the mere
fact that one witness recalls a discussion, and the other does not, does not mean that the recalling
witness’s recitation of that discussion must be accepted as true. Moreover, plaintiff testified that
he did not provide Heinzman with the invalid AAA policy number. He also testified that
Heinzman did not ask whether he or a household member had driven an uninsured vehicle owned
by plaintiff in the past 6 months. Heinzman testified otherwise, maintaining that the invalid policy
number came from plaintiff and that he asked plaintiff all of the eligibility questions. But when
reviewing motions for summary disposition under MCR 2.116(C)(10), courts “may not weigh
evidence, make determinations of credibility, or otherwise decide questions of fact.” Sabbagh v
Hamilton Psychological Servs, PLC, 329 Mich App 324, 346; 941 NW2d 685 (2019). Viewing
the evidence in a light most favorable to plaintiff, there is a material question of fact precluding
summary disposition.
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