Lee v. Auto-Owners Insurance , 218 Mich. App. 672 ( 1996 )

Marilyn Kelly, J.

(dissenting). I respectfully dissent. The breach of a consent to settlement provision, like the breach of any other provision of a contract, must be material in order to adversely affect the parties’ rights. Walker & Co v Harrison, 347 Mich 630, 634, 636; 81 NW2d 352 (1957).

In this case, plaintiff’s failure to comply with the consent to settle clause was not material and did not defeat his right to recover underinsured benefits for which he had paid a premium unless defendant Auto-Owners can show that it was prejudiced.

I would hold that a condition of prejudice should be incorporated into the exclusionary clause in the policy of insurance under consideration. Therefore, I would affirm the trial court’s denial of summary disposition for defendant Auto-Owners.