Huhn v. Davis

Levin, J.

(concurring). Ingram Davis, husband of defendant Marie Davis, did testify that when the 1964 Ford was purchased he approached defendant Progressive Mutual Insurance Company’s agent “to transfer the insurance from the 1953 Chevrolet to the 1964 Ford” and that the agent “sold me coverage with the understanding I could take it out and drive it right then.” He also testified that after the accident involving the 1964 Ford the agent told him “that I was covered and that I should go down to Michigan Claims Service and file a claim.”

*447However, the Progressive agent with whom Mr. Davis dealt testified that when Mr. Davis approached him to inquire regarding a transfer of the insurance, he “would have told him something to the effect to get me the serial numbers as soon as he can and we will send in the papers.” The agent explained that “in Progressive we have no binding authority” and that “when I make a transfer, I make it effective when I send in the serial number so we can properly identify the car.”

The majority hold that “Mr. Davis reasonably relied on the representations of Progressive Mutual’s agents that the Ford was insured.” The trial judge’s written opinion contains no findings on the question whether Progressive’s agent represented to Mr. Davis that the 1964 Ford was insured. In my opinion, where, as here, a case is tried before a judge sitting without a jury, our review of the record ordinarily should be limited to inquiry whether the trial judge’s findings are or are not clearly erroneous (GrCR 1963, 517.1). “We should but rarely, and this is not an appropriate case for making an exception, make our own finding on a disputed issue where none has been made by the trial judge. If additional fact finding is required, the case should be remanded to the trial judge for that purpose.

Although I cannot agree with a disposition of this case based on findings of fact made by this Court, I agree with my colleagues, for other reasons which I will now state, that the newly-acquired 1964 Ford was insured by the Progressive policy at the time of the accident and, accordingly, I agree with the result the majority has reached.

The accident occurred within a few days after the 1964 Ford had been purchased in Mrs. Davis’ name. The “newly acquired automobile” clause of the Progressive policy includes within the definition *448of “owned automobile” a private pássenger automobile ownership of which “is acquired by the named insured” provided that Progressive insures “all private passenger automobiles” owned by the named insured on the date of acquisition of the newly-acquired automobile and the named insured notifies the company within 30 days following the date of acquisition.

It is not disputed that Progressive was notified of the fact that Mrs. Davis had acquired a 1964 Ford within 30 days of its acquisition. The trial judge concluded that the 1964 Ford was, nevertheless, not covered because it “was not owned by the named insured in Progressive’s policy.” In this he erred because the policy expressly provides that the “ ‘named insured’ means the individual named in item 1 of the declarations [in this case Ingram Davis] and also includes his spouse, if a resident of the same household.” The testimony showed that Ingram Davis was married to defendant Marie Davis and that they lived together in the same household. Thus, Mrs. Davis as well as Mr. Davis was a named insured in Progressive’s policy.

Mr. Davis also owned a 1957 Dodge which was not insured by Progressive. Progressive claims that the newly-acquired automobile clause does not apply because Progressive did not insure “all private passenger automobiles” owned by the Davises on the date that the 1964 Ford was acquired. However, the trial judge found that the 1957 Dodge was inoperable and never licensed in 1964, which finding is well supported in the record and not disputed. Thus, the 1957 Dodge “had ceased to be an automobile in fact” and the failure of the Davises to insure the 1957 Dodge did not make inapplicable the newly-acquired automobile clause of the Progressive policy. Drysdale v. State Farm Mutual Insurance *449Company (1968), 13 Mich App 13, 15.* (Emphasis in original.) Accordingly, the 1964 Ford was a private passenger automobile covered by the policy’s newly-acquired automobile clause.

Neither Mr. Davis’ action in seeking a transfer of the liability coverage under the Progressive policy from the 1953 Chevrolet to the 1964 Ford nor his failure to inform the agent that the 1964 Ford had been purchased in Mrs. Davis’ name constituted a waiver of the Davis’ rights under the newly-acquired automobile clause.

Alternatively, Progressive asserts that it should not be held liable because of Mrs. Davis’ asserted right to indemnification from the driver, Donnis Butcher, who was insured for liability by defendant Sate Farm Mutual Insurance Company. This contention was not raised in the trial court and we are not obliged to consider it on this appeal.

The Progressive poliey contained the following additional definition : “ “Private passenger automobile’ means a four-wheel private passenger, station wagon or jeep type automobile.”