Doshi v. Michigan Basic Property Insurance

McDonald, P.J.,

(dissenting.) I respectfully dissent. I would affirm the trial court’s grant of summary disposition to plaintiff.

As the majority states, when this Court construes statutes our primary goal is to ascertain and give effect to legislative intent. Nat’l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545; 563 NW2d 65 (1997). The first-step in determining legislative intent is the specific language of the statute. Id. at 545-546. If the language of a statute is clear and unambiguous, judicial construction is neither required nor permitted. Id.

I believe the plain language of MCL 500.1511; MSA 24.11511 requires a result contrary to that reached by the majority. The statute provides, in pertinent part:

(3) After expiration of the 10-day period, the premium finance company may request cancellation of the insurance contract by mailing to the insurer a notice of cancellation, and the insurance contract shall be cancelleda [sic] by the insurer without requiring the return of the insurance contract. [Emphasis added.]

*605The statute plainly states the insurance contract is canceled by the insurer, although at the request of the premium finance company. Accordingly, I would hold that the insurer must comply with the notice requirement of MCL 500.3020; MSA 24.13020.1 agree with the majority that this Court’s discussion in Farmers Ins Group v Progressive Casualty Ins Co, 84 Mich App 474, 482-483; 269 NW2d 647 (1978), suggests otherwise. However, we are not bound by the discussion in Farmers. There, this Court held that where a premium finance company is not independent of the insurer, but is instead effectively an extension or a branch of the insurer, § 3020 is applicable. Id. This Court’s comment that “[c]hapter 15 of the insurance code was intended to exempt from the notice requirement of § 3020 of the insurance code a premium finance company which was truly independent of any single insurer or group of affiliated insurers” was not necessary to the resolution of the issue in that case. Therefore, the comment is mere dictum and is not binding on this panel. Phinney v Perlmutter, 222 Mich App 513, 533; 564 NW2d 532 (1997).

In this case, it is undisputed that defendant did not mail any notice of cancellation until April 13, 1994. Therefore, the policy was not effectively canceled in accordance with § 3020 on the date of the loss, April 4, 1994. Accordingly, I would find the trial court properly granted summary disposition with regard to this issue.

I note defendant has cited numerous out-of-state c ases in support of its position that an insurer should not be required to provide notice to the insured when a premium finance company requests cancellation of the insurance contract pursuant to a premium finance *606agreement However, generally the pertinent statutes of these states expressly provide that when the premium finance company requests cancellation of the insurance contract the insurer shall cancel the policy “as if the notice of cancellation had been submitted by the insured himself.” See, e.g., Bryce v St Paul Fire & Marine Ins Co, 162 Ariz 307, 308; 783 P2d 246 (Ariz App, 1989); Atwater v Dist of Columbia Dep’t of Consumer & Regulatory Affairs, 566 A2d 462, 470 (DC App, 1989). Michigan’s statute does not contain this language; therefore, I do not find these authorities persuasive.

I must now turn to defendant’s argument that when Jackson Park Agency negotiated and cashed the premium refund checks, it was acting as plaintiff’s agent, thus its actions amounted to a waiver of objection to or ratification of the cancellation of the policy. I disagree.

Initially, I would find there are no issues of material fact regarding the scope of the agency. Ordinarily, an independent insurance agent is the agent of the insured, not the insurer. Harwood v Auto-Owners Ins Co, 211 Mich App 249, 254; 535 NW2d 207 (1995). Moreover, a principal is bound by the actions of an agent done within the scope of the agent’s authority. Hutton v Roberts, 182 Mich App 153, 162; 451 NW2d 536 (1989). Generally, independent insurance agents are only considered the agent of the insured concerning matters immediately connected with the procurement of the policy. 43 Am Jur 2d, Insurance, § 110 pp 187-188; Grace v American Central Ins Co of St Louis, 109 US 278, 281; 3 S Ct 207; 27 L Ed 932 (1883). In this case, there was no evidence to suggest Jackson Park Agency was plaintiff’s agent for any *607other purpose except for procurement of the policy. Accordingly, I would find that even if Jackson Park Agency’s actions amounted to a waiver or ratification, plaintiff is not bound by them because its actions exceeded the scope of the agency. Moreover, I agree with the trial court that in this case there was no cancellation to ratify at the time of the loss because the insurer had not complied with MCL 500.3020(1)(b); MSA 24.13020(1)(b). See Beaumont v Commercial Casualty Ins Co, 245 Mich 104, 107; 222 NW 100 (1928). Accordingly, I would find summary disposition was proper on this ground as well, and I would affirm the decision of the trial court.