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Lafarge Midwest8/11/2005
UNPUBLISHED
Before: Whitbeck, C.J., and Sawyer and Fitzgerald, JJ.
Plaintiff Lafarge Midwest, Inc., appeals as of right from the trial court order granting defendant Frankenmuth Mutual Insurance Company's motion for summary disposition. We reverse and remand for entry of an order granting summary disposition in favor of Lafarge Midwest. We decide this case without oral argument pursuant to MCR 7.214(E).
I. Basic Facts And Procedural History
The instant case arose when a driver employed by Triple R Trucking, Inc., James Blackwell, slipped when descending a stairway at Lafarge Midwest's plant in Muskegon. After Blackwell brought suit against Lafarge Midwest for his resulting injuries, Lafarge Midwest filed this action for a declaratory judgment against Frankenmuth Mutual, Triple R's insurance company. Lafarge Midwest asserts that because it is listed as an "additional insured" on Triple R's insurance policy, Frankenmuth Mutual must defend Lafarge Midwest in the suit brought by Blackwell and provide coverage for any damages if Lafarge Midwest is found liable.
Frankenmuth Mutual filed a motion for summary disposition pursuant to MCR 2.116(C)(10) on the ground that Lafarge Midwest is not entitled to coverage based on the plain language of the policy. Frankenmuth Mutual asserted that Lafarge Midwest only constituted an additional insured with respect to liability arising out of Triple R's "ongoing operations performed for [Lafarge Midwest]," and because Blackwell was not engaged in Triple R's ongoing operations at the time of the accident, Lafarge Midwest was not entitled to coverage. The trial court found nothing in the record to indicate that Blackwell was doing anything other than going to make a pot of coffee when his accident occurred. It therefore held that Lafarge Midwest was not entitled to coverage under the policy and granted Frankenmuth Mutual's motion.
II. Summary Disposition
A. Standards Of Review
The decision to grant or deny summary disposition is a question of law that we review de novo. The proper interpretation of a contract is also a question of law subject to review de novo.
B. Legal Standards
Under MCR 2.116(C)(10), summary disposition is appropriate when there is no genuine issue as to any material fact. A question 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." Where it "appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party."
C. Construing The Policy
Courts construe the terms of insurance policies in accord with the well-settled principles of contract construction. In Michigan Mut Ins Co v Dowell, this Court stated: "An ambiguous provision in an insurance contract must be construed against the drafting insurer and in favor of the insured. However, if the provision is clear and unambiguous, the terms are to be taken and understood in their plain, ordinary, and popular sense." In the instant case, the insurance policy between Frankenmuth Mutual and Triple R lists Lafarge Midwest as an "additional insured"; however, the contract states that coverage applies "only with respect to liability arising out of [Triple R's] ongoing operations performed for that insured." [Emphasis added.]
As the trial court noted, this Court interpreted the phrase "arising out of" in McKusick v Travelers Indem Co. In that case, the plaintiffs sought payment from the insurer of a company that manufactured a high-pressure ho
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