Order Michigan Supreme Court
Lansing, Michigan
June 15, 2007 Clifford W. Taylor,
Chief Justice
130460 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
RICHARD JAMES, Maura D. Corrigan
Plaintiff, Robert P. Young, Jr.
and Stephen J. Markman,
Justices
SAFECO INSURANCE CO.,
Plaintiff-Appellee,
v SC: 130460
COA: 262805
St. Clair CC: 03-002466-NZ
STATE FARM FIRE & CASUALTY CO.,
Defendant/Cross-Defendant-
Appellant,
and
DAVID GASOWSKI,
Defendant/Cross-Plaintiff-
Appellee,
and
MARIO SYLVESTRI and AUTO CLUB
GROUP INSURANCE CO.,
Defendants.
_________________________________________/
On order of the Court, the application for leave to appeal the November 8, 2005
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other peremptory action. MCR
7.302(G)(1). The parties shall submit supplemental briefs within 56 days of the date of
this order addressing: (1) whether State Farm, by failing to plead release as an
affirmative defense in this declaratory relief action, waived its right to oppose plaintiffs’
attempt to invoke offensive collateral estoppel as inconsistent with the terms of the
parties’ Release and Settlement Agreement in the underlying action; (2) whether, for
purposes of collateral estoppel, the identity of the jet-ski driver was actually litigated and
determined by a final judgment in the underlying action; (3) whether, for purposes of
collateral estoppel, State Farm was a party, or in privity with a party, to the underlying
action; (4) how should an insurer proceed when it believes its insured is committing fraud
to invoke coverage, and does that depend on whether the insurer learns of the conflict of
interest during the course of litigation; and (5) if an adverse judgment procured by fraud
2
of the insured is entered, whether the insurer is estopped from contesting liability. The
parties should not submit mere restatements of their application papers.
Persons or groups interested in the determination of the issues presented in this
case may move the Court for permission to file briefs amicus curiae.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 15, 2007 _________________________________________
s0612 Clerk