Tiano v. Aetna Casualty & Surety Co.

T. M. Burns, P.J.

(dissenting). I dissent.

Unlike the majority I am unable to distinguish the liability exclusion clauses in the instant insurance policy from those that were before the Court in Fresard v Michigan Millers Mutual Ins Co, 97 Mich App 584; 296 NW2d 112 (1980). In that case, this Court considered an insurance contract that contained a breach of warranty clause similar to that in the instant case and found that the clause created an ambiguity when read in conjunction with other exclusionary clauses. I believe that a similar result is warranted in the instant case.

Any ambiguity that exists in clauses of an insurance policy that was drafted by an insurer must be construed against the insurer to the benefit of the insured. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 *189(1976). This Court should not construe insurance policies in a manner that would defeat the insured’s reasonable expectation of coverage. State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767; 282 NW2d 472 (1979).

Despite the additional endorsements in the instant insurance policy a person insured under it could reasonably expect coverage in the instant factual situation. Therefore, I would reverse the lower court order granting summary judgment to defendant. The scope of defendant’s liability under this insurance contract is not so definite that defendant should be held entitled to summary judgment.