Griffin Wasik v. Auto Club Insurance Association ( 2022 )

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
GRIFFIN WASIK, FOR PUBLICATION
June 2, 2022
Plaintiff-Appellant, 9:00 a.m.
v No. 355848
Oakland Circuit Court
AUTO CLUB INSURANCE ASSOCIATION, and LC No. 2020-179089-NF
PROGRESSIVE MARATHON INSURANCE
COMPANY,
Defendants-Appellees.
Before: RICK, P.J., and MURRAY and SHAPIRO, JJ.
MURRAY, J.
Plaintiff appeals as of right the final order granting motions for summary disposition
brought by defendants, Auto Club Insurance Association and Progressive Marathon Insurance
Company, and dismissing the case with prejudice.
In resolving this appeal, we must decide a matter of first impression: does the phrase “hit
and run vehicle” under an auto insurance policy include a vehicle that is pulled over after hitting
another vehicle, the drivers of both vehicles exit the cars and inspect the vehicles for damage, and
mutually conclude that because no damage exists, there is no need to contact the police or exchange
insurance information? For the reasons expressed below, we conclude that it does not, and
therefore affirm the trial court’s order.
I. BACKGROUND
The parties agree that the material facts regarding the accident and the immediate aftermath
are undisputed. Anna Mayer, plaintiff’s girlfriend, was driving her car with plaintiff as the sole
passenger. Mayer was stopped at a red light, and when she attempted to turn right, she felt her
vehicle slide on a patch of ice. As she continued turning, the car behind her, a Ford Explorer, slid
on the same patch of ice and hit the back, passenger side of Mayer’s vehicle. Mayer and the driver
of the Explorer turned on their hazard lights, and the Explorer followed Mayer to the nearest
parking lot, where Mayer and the driver exited their vehicles to check for damage and ensure there
were no injuries. On finding no damage to her vehicle, Mayer assured the driver of the Explorer
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that there was no damage, and they mutually agreed that there was no need to contact the police.
Mayer and the driver of the Explorer left the scene without exchanging information.
Plaintiff began complaining of injuries almost as soon as he and Mayer arrived at plaintiff’s
house, so Mayer drove plaintiff to an emergency room that night, where he was diagnosed with a
concussion. Plaintiff thereafter sought personal injury protection (PIP) benefits from Progressive,
and uninsured motorist (UM) benefits from Progressive (the insurer of plaintiff’s mother’s vehicle)
and Auto Club (the insurer of Mayer’s vehicle), under the no-fault act, MCL 500.3101 et seq., for
medical expenses, replacement services, and attendant care related to injuries plaintiff sustained
in the motor vehicle accident.
Progressive and Auto Club eventually moved for summary disposition under MCR
2.116(C)(10) with respect to plaintiff’s UM claims, arguing plaintiff was not entitled to benefits
because under the common meaning of the phrase “hit and run vehicle,” the Explorer was not a
“hit-and-run vehicle” under the insurance policies. Plaintiff argued that it was unnecessary to
apply the common meaning of the phrase “hit-and-run vehicle” because it was already defined by
MCL 257.617, MCL 257.617a, and MCL 257.619. As noted, the trial court held that the Explorer
was not a “hit-and-run vehicle” under either policy, employing the plain and ordinary meaning of
the phrase. Plaintiff moved for reconsideration, which the trial court denied. This appeal followed.
II. STANDARDS OF REVIEW
A. APPELLATE STANDARDS OF REVIEW
In this appeal, we must decide whether the trial court properly granted defendants’ motions
for summary disposition, which in turn requires us to determine whether the trial court correctly
applied the plain language of the insurance contracts. We engage in a de novo review of both
issues. See Dell v Citizens Ins Co of America, 312 Mich App 734, 739; 880 NW2d 280 (2015)
(“This Court . . . reviews de novo a trial court’s decision on a motion for summary disposition.”)
and McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008) (The de novo
standard of review applies to “[q]uestions involving the proper interpretation of a contract or the
legal effect of a contractual clause . . . .”). This, of course, means we give respectful consideration,
but no deference to, the trial court decision. Gillette Commercial Operations North America &
Subsidiaries v Dep’t of Treasury, 312 Mich App 394, 405 n 3; 878 NW2d 891 (2015) (“Though
we can give no deference to the trial court’s legal rulings, unlike the deference we give to
discretionary calls on evidence or findings of fact, we nevertheless give the trial court’s legal
rulings careful consideration.”).
B. LEGAL PRINCIPLES GOVERNING OUR REVIEW
The two motions for summary disposition were brought pursuant to MCR 2.116(C)(10),
which requires a court to consider “the pleadings, admissions, and other evidence submitted by the
parties in the light most favorable to the nonmoving party.” Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition is appropriate . . . if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a matter
of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “A genuine issue
of material fact exists when the record, giving the benefit of reasonable doubt to the opposing
party, leaves open an issue upon which reasonable minds might differ.” Id.-2-
The standards for reading and applying insurance contracts are familiar and require a court
to construe an insurance contract “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.’ ” Auto-Owners Ins Co v Olympia Entertainment, Inc, 310 Mich App 132, 145; 871
NW2d 530 (2015), quoting DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 366-367; 817
NW2d 504 (2012). “[I]f the language of the contract is unambiguous, [this Court] construe[s] and
enforce[s] the contract as written.” Holland v Trinity Health Care Corp, 287 Mich App 524, 527;
791 NW2d 724 (2010) (citations and quotation marks omitted). “Courts may not impose an
ambiguity on clear contract language.” Coates v Bastian Bros Inc, 276 Mich App 498, 503; 741
NW2d 539 (2007) (citation omitted). And a provision is not ambiguous if “it is not susceptible to
more than one interpretation and does not conflict with any other provision.” Id. at 510.
“An ambiguous provision in an insurance contract is construed against the insurer and in
favor of coverage,” Auto Owners Ins Co v Seils, 310 Mich App 132, 146; 871 NW2d 530 (2015),
though “this rule is only to be applied if all conventional means of contract interpretation, including
the consideration of relevant extrinsic evidence, have left the [factfinder] unable to determine what
the parties intended their contract to mean.” Klapp v United Ins Group Agency, Inc, 468 Mich
459, 471; 663 NW2d 447 (2003). An insurance contract is not ambiguous “merely because a term
is not defined in the contract,” McGrath v Allstate Ins Co, 290 Mich App 434, 439; 802 NW2d
619 (2010), nor simply because the parties disagree on its meaning. Gortney v Norfolk & Western
R Co, 216 Mich App 535, 540; 549 NW2d 612 (1996) (“The fact that the parties dispute the
meaning of a release does not, in itself, establish an ambiguity.”).
III. DISCUSSION
“Because providing UM coverage is optional and not statutorily mandated under the no-
fault act, the policy language alone controls the circumstances entitling a claimant to an award of
benefits.” DeFrain, 491 Mich at 367. We, therefore, look to the terms agreed to by the parties in
their insurance contracts.
Progressive’s UM insurance policy, which was owned by plaintiff’s mother and which
covered him, 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:
1. sustained by an injured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance or use of an uninsured
motor vehicle.
The Progressive policy defines the term “uninsured motor vehicle” as:
[A] land motor vehicle or trailer of any type:
d. that is a hit-and-run vehicle whose owner or operator cannot be identified
and which strikes:
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(i) you, a relative, or a rated resident;
(ii) a vehicle that you, a relative, or a rated resident are
occupying[.]
The “hit and run vehicle” provisions of the Auto Club policy that covered Mayer’s vehicle
were quite similar to the Progressive policy, and provide:
1. Subject to the Definitions, Exclusions, Conditions and Limits of Liability of this
policy, we will pay damages for bodily injury to an insured person which:
a. is caused by accident; and
b. arises out of the ownership, operation, maintenance or use of an
uninsured motor vehicle; and
c. that insured person suffers death, serious impairment of body
function or permanent serious disfigurement; and
d. that insured person is legally entitled to recover from the owner
or operator of an uninsured motor vehicle.
The Auto Club policy defines the term “uninsured motor vehicle” as a motor vehicle that is:
b. a hit-and-run motor vehicle of which the operator and owner are unknown
and which makes direct physical contact with:
(1) you or a resident relative, or
(2) a motor vehicle which an insured person is occupying[.]
For plaintiff to obtain UM benefits under either policy, he must establish that (1) a “hit and run
vehicle” (2) whose operator is unknown (3) made direct physical contact with the motor vehicle
plaintiff was occupying. Neither policy defines the phrase “hit-and-run vehicle,” and all parties
agree that whether plaintiff is entitled to receive no-fault UM benefits from either insurer depends
on whether the Explorer was a “hit-and-run vehicle.”
Because the phrase “hit-and-run” is undefined, we must determine its plain and ordinary
meaning. McGrath, 290 Mich App at 439. Merriam-Webster’s Collegiate Dictionary defines “hit-
and-run” as “being or involving a motor-vehicle driver who does not stop after being involved in
an accident.” Merriam-Webster’s Collegiate Dictionary (11th ed). But we must apply all the
words of the policy, Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431
(1992), not just select ones, and tethered to the vehicle being a “hit and run vehicle,” is that the
operator must be unknown. So, for example, if a vehicle strikes another vehicle and does not stop,
but the operator of that vehicle is known, there would be no coverage. Thus, it is not just a fleeing
vehicle that triggers coverage, as the operator of the striking vehicle must also be unknown.
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While no party identified a Michigan case that determined the meaning of “hit-and-run
vehicle” under an auto insurance policy,1 defendants presented decisions from other states
addressing the meaning of nearly identical insurance policy language and under very similar facts.
Cited are Kasid v Country Mut Ins Co, 776 NW2d 181, 187 (Minn App, 2009), where the court
held that “when an individual is not denied an opportunity to obtain information following an
accident, but fails to obtain such information, that accident is not a hit-and-run accident for
purposes of UM benefits[,]” and State Farm Mut Auto Ins Co v Seaman, 96 Wash App 629; 980
P2d 288 (1999), where the court determined that the plaintiff failed to establish involvement in a
hit-and-run accident because the at-fault driver did not flee the scene after the accident.
In line with those decisions is Sylvester v United Services Auto Assoc Casualty Ins Co, 42
Conn App 219; 678 A2d 1005 (1996), aff’d 240 Conn 544; 692 A2d 1254 (1997). There, the
vehicle that struck plaintiff stopped, and the operator exited the vehicle to see if plaintiff was hurt.
After a few minutes, plaintiff told the driver he was fine and could leave. Plaintiff did not ask for
any identifying information. The trial court dismissed the case, concluding that the policy—which
like here, required that the plaintiff be hit by a “hit and run vehicle” whose operator was
unknown—did not apply because plaintiff had the opportunity to obtain the driver’s identification
but chose not to obtain it. Sylvester, 42 Conn App at 221-222. The Court of Appeals affirmed,
but with different reasoning. The appellate court instead held that the vehicle that hit plaintiff was
not a “hit and run vehicle” as that phrase is commonly understood because the driver did stop and
checked on plaintiff:
We look to dictionary definitions to ascertain the ordinary meaning of a “hit and
run vehicle.” See Wrinn v State, 234 Conn 401, 406; 661 A2d 1034 (1995). The
term has meaning in common parlance. “Hit-and-run,” as it refers to the driver of
a vehicle, has been defined as “guilty of leaving the scene of an accident without
stopping to render assistance or to comply with legal requirements.” Webster’s
Third New International Dictionary. It has also been defined as “[d]esignating or
involving the driver of a motor vehicle who drives on after striking a pedestrian or
another vehicle.” American Heritage Dictionary (New College Ed 1981). Because
the driver of the vehicle that struck the plaintiff stopped to render assistance and
because the plaintiff affirmatively acted to dismiss the driver from the scene of the
accident, we conclude that the plaintiff was not struck by a hit and run vehicle.
Accordingly, under the facts here, the policy’s provisions for uninsured motorist
coverage are inapplicable and we, therefore, do not reach the issue of whether the
1
There is one decision that references this issue, albeit it is dicta in an unpublished opinion. In
Grimmett v Farmers Ins Exchange, unpublished opinion per curiam of the Court of Appeals,
decided October 6, 2015 (Docket No. 321492), the Court concluded that a “hit and run” accident
“does not just encompass an accident where the other motorist immediately flees the scene—it
also includes accidents where the other driver does not immediately flee the scene, but nonetheless
fails to provide his contact and identification information to the policy holder or the authorities
after the accident occurs.” Grimmett, at n 1. However, the issue before the Court was solely
whether the plaintiff satisfied the notice provisions of the contract, and thus the conclusion set
forth in fn 1 is dicta.
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plaintiff had a duty to ascertain the identity and insurance status of the operator of
the automobile that struck him. [Id. at 224.]
Though defendants point us to the favorable principles articulated in Kasid and Seaman,
they failed to mention that another line of decisions from other states more broadly apply the phrase
or deem the phrase ambiguous and thus construe it in favor of coverage. See, e.g., Zarder v
Humana Ins Co, 324 Wis 2d 325; 782 NW2d 682 (2010); Wilson v Progressive Northern Ins Co,
151 NH 782; 868 A2d 268 (2005), and Commerce Ins Co v Mendonca, 57 Mass App 522; 784
NE2d 43 (2003). In both Zarder and Wilson the courts concluded that the contractual phrase “hit
and run” was ambiguous because it could reasonably be read to mean a vehicle that strikes and
flees, or a vehicle that strikes and stops after the accident, but leaves before providing any
information. See Zarder, 324 Wis 2d at 346, and Wilson, 151 NH at 789. Because the phrase was
susceptible to more than one reasonable interpretation, it was construed in favor of insurance
coverage. On the other hand, in Mendonca the Massachusetts Court of Appeals rejected a literal
interpretation of “hit and run” in part because that state’s supreme court had previously rejected a
literal interpretation of “hit,” and because a coverage gap would exist between someone hit by a
vehicle that fled, and someone who was hit by a vehicle that stopped but left before information
could be collected. Mendonca, 57 Mass App at 524-526.
Although these decisions are informative, our decision is anchored in the words of these
contracts. In applying the common understanding of this phrase, we do not read “hit and run
vehicle” to exclusively mean, as defendants argue, a vehicle that hits another vehicle and does not
stop at the scene of the accident, and thus is unidentified. Instead, we hold that under these
contracts, “hit and run vehicle” means a vehicle that hits another vehicle and the driver leaves the
scene of the accident—either without stopping or at any time before an exchange of information
can take place. This reading comports with the plain meaning of the phrase “hit and run” and
enforces the common understanding of that phrase. Importantly, it also takes into consideration
the remaining sentence of each policy, i.e., that the driver either be “unknown” or “cannot be
identified,” as each policy requires in some form that the driver be unidentified. The requirement
that the driver be unidentified for the policy to apply means to us that the “run” has to occur before
the opportunity to exchange information can take place. And that type of “run” occurs if a vehicle
flees without stopping, or if the vehicle stops but leaves before there is an opportunity to exchange
information.2
Working with this definition and considering the undisputed facts, we readily conclude that
plaintiff was not hit by a hit and run vehicle, as it is undisputed that the driver of the Explorer did
not flee from the scene of the accident but instead followed Mayer to the nearest parking lot, where
he and Mayer checked for injuries and damage to their vehicles.3 Additionally, the driver only left
2
The requirement that the driver stop and provide an opportunity to exchange information does
not require proof of a driver’s intent. Russell v Sentinel Ins Co, 906 NW2d 543, 547 (Minn App,
2018) (“We conclude that the ordinary meaning of hit-and-run and its interpretation in our caselaw
do not require a showing that an unidentified driver fled, or left, with the intent to escape liability.”)
3
Plaintiff argues that an occupant of a vehicle may be sufficiently injured such that they do not
have the opportunity to obtain identifying information from the striking driver at the scene. While
that scenario is plausible, the trial court noted that plaintiff testified that after the accident, he exited
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the accident scene after Mayer told him there was no damage to her vehicle, and they both agreed
there was no need to contact the police or exchange information. In other words, it is undisputed
that the driver of the vehicle that hit Mayer’s vehicle did not “run” from anything, as he remained
at the scene so that there was an opportunity to exchange information. Both drivers simply agreed
it was not necessary to do so. Given those undisputed facts, the Explorer does not fall under the
plain and ordinary meaning of the phrase “hit-and-run vehicle.” Thus, the trial court did not err in
granting summary disposition in favor of Progressive and Auto Club, as UM benefits were not
available under either contract.
Plaintiff’s challenge to this conclusion comprises two arguments, neither of which carries
the day. First, plaintiff argues that the meaning of “hit-and-run vehicle” should be determined by
analyzing the obligations within MCL 257.617, MCL 257.617a, MCL 257.618, and MCL
257.619.4 However, “[u]ninsured motorist benefit clauses are construed without reference to the
no-fault act because such insurance is not required under the act.” Twichel v MIC General Ins
Corp, 469 Mich 524, 533; 676 NW2d 616 (2004). See also Dawson v Farm Bureau Mut Ins Co
of Mich, 293 Mich App 563, 568; 810 NW2d 106 (2011) (“Like uninsured-motorist benefits,
underinsured-motorist coverage is not required by Michigan law, and the terms of coverage are
controlled by the language of the contract itself, not by statute.”). The referenced statutes neither
define “hit-and-run vehicle,” nor do they contain that phrase. And even though the statutes do not
the car but did not request identifying information or write down the license plate of the Explorer.
Although plaintiff testified that he “didn’t feel well” at the scene, that alone is not sufficient to
create a genuine issue of material fact whether he was deprived of an opportunity to obtain the
unknown driver’s information.
4
Although the meaning of the policy is governed only by its own terms, this definition is in
harmony with the requirements of MCL 257.617, MCL 257.617a, and MCL 257.618, which
contain identical first paragraphs and provide requirements for drivers to follow when involved in
an accident:
(1) The driver of a vehicle who knows or who has reason to believe that he or she has been
involved in an accident upon public or private property that is open to travel by the public shall
immediately stop his or her vehicle at the scene of the accident and shall remain there until the
requirements of section 619 are fulfilled or immediately report the accident to the nearest or most
convenient police agency or officer to fulfill the requirements of section 619(a) and (b) if there is
a reasonable and honest belief that remaining at the scene will result in further harm. The stop
shall be made without obstructing traffic more than is necessary. [MCL 257.617(1); MCL
257.617a(1).]
MCL 257.619 states that “the driver of a vehicle who knows . . . he or she has been involved
in an accident with . . . another vehicle . . . shall . . . (a) [g]ive his or her name and address, and the
registration number of the vehicle he or she is operating, including the name and address of the
owner, to a police officer, the individual struck, or the driver or occupants of the vehicle with
which he or she has collided, [and] (b) [e]xhibit his or her operator’s or chauffeur’s license to a
police officer, individual struck, or the driver or occupants of the vehicle with which he or she has
collided.”
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play a role in defining terms in a UM policy, as we pointed out in footnote 4, the meaning of the
phrase is in harmony with the obligations placed on motorists under those statutes.
Second, plaintiff provides a different definition of “hit and run” through application of
Law.com’s legal dictionary, which defines “hit-and-run” as “the crime of a driver of a vehicle who
is involved in a collision with another vehicle, property or human being, who knowingly fails to
stop to give his/her name, license number and other information as required by statute to the injured
party, a witness or law enforcement officers.” However, “hit and run” is a nonlegal phrase, and
the meaning of an undefined nonlegal term is not provided by a legal dictionary. Sands Appliance
Servs v Wilson, 463 Mich 231, 240-241; 615 NW2d 241 (2000). And, in any event, the Explorer
would not fall within plaintiff’s preferred definition because there is no dispute that the Explorer
did not “knowingly fail to stop” and did discuss exchanging information with Mayer.5
Affirmed. Having prevailed in full, defendants may tax costs. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Michelle M. Rick
/s/ Douglas B. Shapiro
5
Plaintiff, relying upon Group Ins Co of Mich v Czopek (After Remand), 440 Mich 590, 598; 489
NW2d 444 (1992), argues the trial court erred because it did not consider plaintiff’s perspective
when it determined the meaning of the term “hit-and-run vehicle.” Czopek is not helpful, as the
policy language in Czopek specifically directed the consideration of circumstances that are
“unforeseen and unexpected by the person injured.” Id. at 597. No similar language is contained
in either of these policies.
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