Williams v. Auto Club Group Insurance

Bandstra, P.J.

(dissenting). I respectfully dissent. The question before us is which of two innocent parties should bear the cost of the fire loss resulting from Hjalma Williams’ estranged husband’s arson. Hjahna Williams may well be innocent as the majority points out, but defendant insurance company is even more so. Through its policy, defendant undertook to insure only against accidental loss. The result of the majority’s opinion is that it must pay for a loss that was clearly the result of an intentional act.

The majority concludes that, even though defendant’s policy was clearly written to avoid this coverage, the policy must be ignored because of MCL 500.2833; MSA 24.12833. I disagree. Section 2833 only guarantees coverage formerly provided by § 2832 “[e]xcept *321as otherwise provided” in the new statute. MCL 500.2833(2); MSA 24.12833(2). Our Supreme Court had carved out an exception for an innocent coinsured under § 2832 wdth specific reliance on that section’s use of the words “the insured,” and the Court suggested that the exception would not be available if the statute read differently. Morgan v Cincinnati Ins Co, 411 Mich 267, 276; 307 NW2d 53 (1981). The revised statute no longer makes a policy voidable only because of the wrongful actions of “the insured.” MCL 500.2833; MSA 24.12833. By removing this language, which was the linchpin of our Supreme Court’s reasoning in carving out the innocent coinsured exception, the Legislature did statutorily repeal that exception. The Legislature thus “otherwise provided” that § 2832’s protection for “innocent insureds” did not survive the repeal of that section. MCL 500.2833(2); MSA 28.12833(2). Section 2833 did not “reenact” the repealed § 2832 as the majority reasons.

The majority correctly points out, ante at 319, that “[w]here a statute is repealed and another statute is enacted that covers the same subject area, we presume that a change in wording reflects a legislative intent to change the statute’s meaning.” Eaton Farm Bureau v Eaton Twp, 221 Mich App 663, 668; 561 NW2d 884 (1997). By changing the statutory language and broadening the provision allowing a policy to be voided because of misrepresentation, fraud, or concealment generally, rather than the misrepresentation, fraud, or concealment of “the insured,” the Legisla*322ture expressed a clear intent to change the statute’s meaning.1

I would reverse the summary disposition granted to plaintiffs and conclude that defendant is entitled to summaiy disposition under the clear policy language.

The majority opinion cites Borman v State Farm Fire & Casualty Co, 446 Mich 482, 490, n 15; 521 NW2d 266 (1994), where our Supreme Court noted that “a or the purpose” of the statutory amendment was to assure that insurance policies were more readable and understandable for consumers. The Court’s use of this equivocal language indicates that no decision was rendered regarding whether this purpose was the only purpose of the statutory changes. For the reasons stated, I conclude that it was not.