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Auto-Owners Insurance Co. v. Aikens11/15/2002
UNPUBLISHED
In this declaratory judgment action, defendant Joan Rosales Palacio appeals as of right a circuit court order granting summary disposition in favor of plaintiff. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On January 14, 1997, at approximately 11:30 a.m. Monique Angelise Aikens, while operating an automobile owned by her mother, Jean Aikens, was involved in an automobile accident with defendant Joan Rosales Palacio. At the time of the accident, the Aikens' vehicle was uninsured. However, at approximately 2:30 p.m. on January 14, 1997, Monique's father, Andrew Aikens, purchased automobile insurance on the vehicle from plaintiff, Auto-Owners Insurance Company.
Joan Rosales Palacio has filed a personal injury lawsuit arising out of the accident in which she has obtained a default judgment against Monique Aikens in the sum of $325,000. In an amended complaint, plaintiff named Jean Aikens as a co-defendant alleging liability under the ownership liability statute, MCL 257.401.
In the present declaratory judgment action, plaintiff Auto-Owners Insurance Company asserts that it owes no liability coverage for the accident on two grounds: (1) that pursuant to the doctrine of rescission, the insurance policy issued after the automobile accident was null and void because it was issued based on a material misrepresentation, and (2) assuming that the policy was in effect at the time of the accident, it provided no coverage because Monique was an excluded driver for the reason that at the time of the accident Monique did not have a reasonable belief that she was entitled to use the vehicle as is required by the policy. The circuit court granted plaintiff summary disposition based on the second ground. We affirm. In doing so, we express no opinion regarding the rescission defense asserted by plaintiff.
The automobile liability insurance policy at issue clearly and unambiguously excludes from its coverage persons using the vehicle without a reasonable belief that they are entitled to do so. Specifically, the policy language provides:
Exclusions
A. We do not provide Liability Coverages to any person:
8. Using a vehicle without a reasonable belief that that person is entitled to do so. The unrebutted testimony of Monique Aikens submitted in support of plaintiff's motion established that Monique Aikens did not have a belief that she had permission to use the vehicle at the time of the accident:
Q: And then was [the vehicle] taken away again after that or was it taken away before that?
A: It was taken after Christmas, like a couple weeks.
Q: Okay. Sometime in the spring or summer?
A: Then it was taken away maybe just before the accident, not too long before the accident had happened, and that's when I got into the accident.
Q: Okay. So they took it away a week or so after Christmas for two weeks and gave it back to you?
A: Yes, if I remember correctly.
Q: And then you had permission to drive it?
A: Really I didn't have permission to drive it because she had took the keys from me, but she didn't know I had an extra set of keys to the car. [Emphasis added.]
At the hearing on plaintiff's motion for summary disposition, the Honorable Lawrence M. Glazer focused on the policy language and repeatedly questioned defendant's counsel regarding what evidence, if any, existed to rebut Monique's unequivocal deposition testimony that she did not believe she had permission to drive the vehicle:
The Court: Doesn't the language of the policy req
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