If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MUNIR HURMIS and EVAA TOBIA, UNPUBLISHED
November 30, 2023
Plaintiffs-Appellants,
v No. 363022
Wayne Circuit Court
LAKEITHA LAWANNA BAILY, CITIZENS LC No. 21-006718-NI
INSURANCE COMPANY OF THE MIDWEST,
PROGRESSIVE MICHIGAN INSURANCE
COMPANY, and PROGRESSIVE MARATHON
INSURANCE COMPANY
Defendants-Appellees.
Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.
PER CURIAM.
In this action seeking damages following an automobile accident, plaintiffs, Munir Hurmis
and Evaa Tobia, appeal as of right a default judgment entered against defendant Lakeitha Lawanna
Baily. Plaintiffs’ claims of error, however, concern earlier orders granting summary disposition
in favor of defendant Citizens Insurance Company of the Midwest (Citizens) and denying
plaintiffs’ request to reinstate their claims against defendant Progressive Michigan Insurance
Company (Progressive Michigan).1 We affirm.
I. BACKGROUND
This case stems from a motor vehicle accident that occurred in June 2018. Plaintiffs were
passengers in a GMC Terrain driven by Evaa’s brother, Evan Tobia. They were traveling on I-75
when a Dodge Caravan sideswiped their passenger side. Plaintiffs’ deposition testimony differed
as to whether they interacted with any of the Caravan’s occupants, but it is undisputed that all the
1
Defendant Progressive Marathon Insurance Company was dismissed by stipulated order in
recognition of the fact that Progressive Michigan was the correct defendant.
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occupants fled the scene before police arrived. The traffic crash report confirmed as much, but
still identified Baily as the driver of the Caravan,2 which was owned by EAN Holdings, LLC.
At the time of the accident, plaintiffs owned two vehicles insured by Citizens. Their policy
included uninsured motorist (UM) and underinsured motorist (UIM) endorsements, both providing
for benefits up to $100,000 for each person and $300,000 for each occurrence. Evan’s Terrain was
insured by Progressive Michigan under a policy that likewise extended UM and UIM coverage,
albeit with lower policy limits. According to documentation submitted by Citizens, as of June 2,
2021, EAN Holdings “qualified for a Certificate of Self-Insurance Authority (COSI) to operate as
a Michigan automobile self-insured entity pursuant to Public Act No. 204 of 2012.” The parties
do not dispute that EAN Holdings was a self-insurer at all times relevant to this case.
Plaintiffs filed this lawsuit in June 2021, alleging a negligence count against Baily and
seeking UM or UIM benefits from Citizens and Progressive Michigan. Baily never participated
in this action, and a default judgment was eventually entered against her for $200,000 with respect
to Munir and $200,000 with respect to Evaa.
Progressive Michigan moved for summary disposition under MCR 2.116(C)(10) on the
basis that neither plaintiff qualified as insured persons under its policy because both were “insured
for Uninsured/Underinsured Motorist or similar coverage” under the policy issued by Citizens.
The trial court agreed, granted Progressive Michigan’s motion, and dismissed Progressive
Michigan without prejudice.
Citizens likewise moved for summary disposition under MCR 2.116(C)(10) several
months later. Citizens cited portions of its UM and UIM endorsements that excluded from the
definition of an uninsured motor vehicle or underinsured motor vehicle, respectively, vehicles
owned by a self-insured entity. Citizens also argued that both endorsements required claimants to
provide proof of the amounts payable, which plaintiffs could not do without first proving that Baily
was actually uninsured or underinsured, and plaintiffs had done nothing to establish Baily’s
insurance status at the time of the accident. The trial court agreed that summary disposition was
warranted for the reasons raised by Citizens.
Plaintiffs moved for reconsideration of the order granting summary disposition in favor of
Citizens. They alternatively argued that if the trial court was disinclined to reverse its ruling as to
Citizens, it should reinstate the claims against Progressive Michigan because the basis for the
earlier dismissal was no longer valid. The trial court denied plaintiffs’ motion, and this appeal
followed.
II. STANDARD OF REVIEW
“Appellate review of a motion for summary disposition is de novo.” Gyarmati v Bielfield,
245 Mich App 602, 604; 629 NW2d 93 (2001). In addition, “[t]he proper interpretation of a
2
Although there was no evidence presented on this point, the parties seem to agree that Baily was,
at minimum, the person who leased the Caravan from a rental company associated with EAN
Holdings.
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contract and the legal effect of a contractual clause are questions of law that we review de novo.”
Sherman-Nadiv v Farm Bureau Gen Ins Co of Mich, 282 Mich App 75, 78; 761 NW2d 872 (2008).
“We review for an abuse of discretion a trial court’s decision on a motion for reconsideration.”
Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754; 849 NW2d 408 (2014).
“An abuse of discretion occurs if the trial court’s decision falls outside the range of principled
outcomes.” Id.
III. UM COVERAGE UNDER THE CITIZENS POLICY
Plaintiffs argue that the trial court erred by granting Citizens’s motion for summary
disposition because plaintiffs were injured in a hit-and-run accident involving an uninsured motor
vehicle as that term is defined in Citizens’s UM endorsement. We decline to address this issue on
the merits for two reasons. First, it is moot. Second, even if its resolution in plaintiffs’ favor
would have a practical effect on this case, the doctrine of judicial estoppel would preclude us from
accepting a factual predicate necessary to plaintiffs’ claim of error.
“Uninsured motorist coverages is not statutorily mandated and, therefore, the terms of the
contract control whether a claimant is entitled to benefits.” Drouillard v American Alternative Ins
Corp, 504 Mich 919, 919 (2019). Courts interpret insurance policies “in the same manner as other
contracts, assigning the words in the contract their ordinary and plain meaning if such would be
apparent to a reader of the instrument.” Wasik v Auto Club Ins Ass’n, 341 Mich App 691, 695;
992 NW2d 332 (2022) (quotation marks and citations omitted). When a contract defines a term,
however, the contract must be interpreted consistent with the expressed definition. Century Surety
Co v Charron, 230 Mich App 79, 82; 583 NW2d 486 (1998).
Citizens’s UM endorsement dictates that Citizens will pay compensatory damages that an
insured is legally entitled to recover from the owner or operator of an “uninsured motor vehicle”
because of bodily injury that was sustained by an insured and caused by an accident. For purposes
of UM coverage, an uninsured motor vehicle is defined under § C.4 of the UM endorsement to
include:
An “auto” involved in a hit-and-run “auto” accident which causes bodily
injury to an “insured” by direct physical contact with the “insured” or with an
“auto” occupied by the “insured”. The identity of the operator of the hit-and-run
“auto” must be unknown. The accident must be reported within 24 hours to a
police, peace, or judicial officer, to the Commissioner of Motor Vehicles of the
State of Michigan or to the equivalent department in which the state where the
accident occurred. We must be notified of the accident within 30 days of the date
of the accident occurred. If the insured was occupying an “auto” at the time of the
accident, we have a right to inspect the “auto[.]”
Plaintiffs argue that the trial court should not have granted summary disposition in favor
of Citizens because the Caravan that caused the accident satisfied the foregoing definition of an
uninsured motor vehicle. However, plaintiffs’ position fails to appreciate that the trial court’s
ruling was not premised on the definitions of an uninsured motor vehicle set forth in § C of the
UM endorsement, but rather the vehicles that were explicitly excluded from the definition of an
uninsured motor vehicle set forth in § D and, more specifically, the exclusion of vehicles “owned
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or operated by a self-insurer” in § D.2. In other words, plaintiffs’ claim of error concerns the
availability of coverage in the first instance, while the trial court’s grant of summary disposition
concerned an entirely different question, namely, whether coverage was negated by an
exclusionary provision. See Travelers Prop Cas Co of America v Peaker Servs, Inc, 306 Mich
App 178, 184; 855 NW2d 523 (2014) (“Interpretation of an insurance policy ultimately requires a
two-step inquiry: first, a determination of coverage according to the general insurance agreement
and, second, a decision regarding whether an exclusion applies to negate coverage.”) (quotation
marks and citation omitted). This distinction renders plaintiffs’ claim of error moot because, even
if we agreed that the Caravan satisfied the definition of an uninsured motor vehicle in § C.4, it
would still not qualify as an uninsured motor vehicle as a result of the exclusion in § D.2. See
Moore v Genesee Co, 337 Mich App 723, 726-727; 976 NW2d 921 (2021) (explaining that an
issue is moot when “it is impossible for the court to craft an order with any practical effect on the
issue”). This Court will generally not decide moot issues. Id.
Even if this issue was not moot, it would be inappropriate for this Court to accept plaintiffs’
position in light of the record currently before us. The identity of the operator of a hit-and-run
vehicle must be unknown for the vehicle to be considered an uninsured motor vehicle under § C.4.
Plaintiffs contend that this condition is met because the police report in which Baily is named as
the driver merely identified the lessee of the vehicle, but the driver’s true identity remains unknown
and cannot be determined when the occupants fled the scene and Baily has not participated in the
instant litigation. While we acknowledge the record contains scant evidence concerning who was
operating the Caravan at the time of the accident, judicial estoppel principles preclude this Court
from holding that the driver was unknown or that a question of fact exists regarding the driver’s
identity.
“Judicial estoppel precludes a party from adopting a legal position in conflict with a
position taken earlier in the same or related litigation.” Wells Fargo Bank, NA v Null, 304 Mich
App 508, 537; 847 NW2d 657 (2014) (quotation marks and citation omitted). For this doctrine to
apply, the party must have “unequivocally and successfully” advanced a “wholly inconsistent”
theory. Id. (quotation marks and citations omitted). Judicial estoppel is an equitable doctrine
employed to protect the integrity of the judicial system and promote “truthfulness and fair dealing
in court proceedings.” Dep’t of Transp v Riverview-Trenton R Co, 332 Mich App 574, 594-595;
958 NW2d 246 (2020) (quotation marks and citation omitted). In determining whether to apply
the doctrine, a critical factor is “whether the party seeking to assert an inconsistent position would
derive an unfair advantage if not estopped.” Id. at 594 (quotation marks and citation omitted).
Plaintiffs named Baily as a defendant in this action, alleging that she was negligently
operating the Caravan at the time of the accident. Baily was served with the summons and
complaint and failed to appear or respond in the time frame designated by the court rules. The
court clerk eventually entered a default against Baily at plaintiffs’ request. After the trial court
denied plaintiffs’ motion for reconsideration, plaintiffs moved for entry of a default judgment,
again claiming that the Terrain they were traveling in was violently sideswiped by Baily, causing
both plaintiffs to suffer debilitating injuries that required extensive medical treatment. The trial
court granted plaintiffs’ motion and entered a sizable judgment against Baily and in favor of each
plaintiff. Because plaintiffs’ previous contention that Baily negligently operated the Caravan is
wholly inconsistent with their current assertion that the driver remains unknown, and plaintiffs
successfully obtained a judgment on the basis of the former theory, judicial estoppel precludes this
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claim of error. Allowing plaintiffs to procure a judgment against the negligent driver while
simultaneously obtaining UM benefits on the basis that the driver is unidentifiable is the precise
type of “unfair advantage” judicial estoppel aims to prevent.
IV. AMBIGUITY IN THE CITIZENS POLICY
Plaintiffs next argue that the trial court erred by granting Citizens’s dispositive motion
because certain portions of the policy are ambiguous. Plaintiffs did not oppose Citizens’s motion
on this basis below, nor was any potential ambiguity explored by the trial court in its decision.
This issue is therefore unpreserved. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964
NW2d 809 (2020). We are bound by the raise-or-waive rule in civil proceedings, under which
failure to preserve an issue waives appellate review. Walters v Nadell, 481 Mich 377, 387; 751
NW2d 431 (2008). See also Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, ___ Mich
App ___, ___; ___ NW2d ___ (2023) (Docket No. 359090); slip op at 3-5 (rejecting review of
unpreserved claims of error in civil proceedings under plain-error standard). As such, we will not
address this argument raised for the first time on appeal.
V. REINSTATEMENT OF CLAIMS AGAINST PROGRESSIVE MICHIGAN
Lastly, plaintiffs take issue with the trial court’s refusal to reinstate their claims against
Progressive Michigan after it determined that plaintiffs were not to be afforded UM or UIM
coverage under the Citizens policy. We disagree.
The trial court rejected plaintiffs’ request to reinstate their claim against Progressive
Michigan, reasoning that Progressive Michigan’s policy excluded UM and UIM coverage if
another policy afforded such coverage, which the Citizens’s policy did, even if coverage was
ultimately unavailable to plaintiffs because of policy exclusions and plaintiffs’ failure to provide
sufficient proofs to support their claims. Plaintiffs disagree, emphasizing that the Citizens policy
did not provide coverage to plaintiffs by the trial court’s own determination. We find plaintiffs’
position unpersuasive.
Coverage under the Progressive Michigan policy was not controlled by whether plaintiffs
actually obtained UM or UIM benefits from another insurer. As noted above, “[u]ninsured
motorist coverages is not statutorily mandated and, therefore, the terms of the contract control
whether a claimant is entitled to benefits.” Drouillard, 504 Mich at 919. The same is true with
respect to UIM benefits. Andreson v Progressive Marathon Ins Co, 322 Mich App 76, 84; 910
NW2d 691 (2017). Like any other contract, insurance policies are construed by applying the plain
and ordinary meaning of the contractual language. Wasik, 341 Mich App at 695. When a contract
defines a term, however, the contract must be interpreted consistent with the expressed definition.
Century Surety Co, 230 Mich App at 82.
The Progressive Michigan policy states:
[W]e will pay for damages that an insured person is legally entitled to recover
from the owner or operator of an uninsured motor vehicle because of bodily
injury:
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1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance or use of an uninsured motor
vehicle.
The trial court dismissed the claims against Progressive Michigan because neither plaintiff
qualified as an “insured person” under the Progressive Michigan policy.
The Progressive Michigan policy defines an insured person, in pertinent part, as “any
person who is not an insured for Uninsured/Underinsured Motorist or similar coverage by any
other insurance policy occupying, but not operating, a covered auto[.]” It is undisputed that
plaintiffs were occupying a covered auto, but Progressive Michigan argued, and the trial court
agreed, that plaintiffs were not insured persons because they had UM and UIM insurance under
the Citizens policy. The trial court did not err in that regard. The Citizens policy extends UM and
UIM coverage to an “insured,” which, it defines as including “[y]ou or any ‘family member.’ ”
“You,” in turn, is defined as including “[t]he ‘named insured’ shown in the Declarations.”
Plaintiffs are both named insureds in Citizens’s declarations page and, therefore, “insured[s]” for
purposes of the UM and UIM endorsements.
The controlling question in determining whether plaintiffs were insured persons under the
Progressive Michigan policy was whether they were “insured for Uninsured/Underinsured
Motorist or similar coverage by another insurance policy . . . .” That plaintiffs’ claims against
Citizens were dismissed on the basis of a policy exclusion and failure to adequately support their
claims does not alter the fact that they were insured for UM and UIM coverage by the Citizens
policy. Consequently, the trial court did not abuse its discretion when it declined to reinstate
plaintiffs’ claims against Progressive Michigan following dismissal of Citizens.
Plaintiffs also claim that they were insured persons because they were relatives of Evan
and his wife, the named insureds on the Progressive Michigan policy. We disagree. In addition
to the definition of an “insured person” discussed above, the Progressive Michigan policy also
defined that term to mean “you, a relative, or a rated resident[.]” A relative, as defined in the
Progressive Michigan policy, means “a person residing in the same household as you, and related
to you by blood, marriage or adoption, and includes a ward, stepchild, or foster child. Your
unmarried dependent children temporarily away from home will qualify as a relative if they intend
to continue to reside in your household.” (Bold emphasis omitted; italicized emphasis added.)
The evidence before the trial court suggested that Evan and his wife lived in Warren, while
plaintiffs lived in Sterling Heights. Munir confirmed the latter fact, testifying that he and Evaa
lived in Sterling Heights and resided only with each other and their children. It is clear from the
evidence that plaintiffs were relatives of Evan and his wife in the ordinary sense of that word, but
did not qualify as residents for purposes of the Progressive Michigan policy because they did not
reside in the same household.
VI. CONCLUSION
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There were no errors warranting relief. Therefore, we affirm.3
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
/s/ Kristina Robinson Garrett
3
Plaintiffs’ brief on appeal includes an argument regarding whether EAN Holdings could be
vicariously liable for the driver’s negligence under MCL 257.401. This argument is not properly
before us because it is not within the scope of plaintiffs’ statement of the questions presented for
appeal. Ypsilanti Fire Marshal v Kircher, 273 Mich App 496, 543; 730 NW2d 481 (2007). We
treat such issues as abandoned. Id.
It would be inappropriate for us to address this issue on the merits in any event because it
was not preserved below. Issues not raised before the trial court in civil proceedings are deemed
waived and should not be decided absent special circumstances not applicable here. Tolas Oil &
Gas Exploration Co, ___ Mich App at ___; slip op at 2-5. Plaintiffs presented a cursory, single-
paragraph argument regarding the owner’s potential liability in this case, but that argument was
exclusively premised on the terms of a rental agreement that was not produced by plaintiffs.
Adding further confusion to this point, plaintiffs referred to an unknown “Ms. Thomas” and facts
that were not developed in this case, making it unclear whether the argument was intended to apply
to this case at all. At any rate, they did not cite, let alone raise any arguments regarding, the
owner’s liability statute.
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