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Harleysville Lake States Insurance Co. v. Mason Insurance Agency9/22/2005
UNPUBLISHED
Before: Sawyer, P.J., and Talbot and Borrello, JJ.
In this breach of contract claim between an insurance underwriter and an insurance agency that sold one of its policies, plaintiff appeals as of right from a judgment entered after a jury verdict for defendants. Plaintiff also appeals the denial of its motion for summary disposition. We affirm.
Defendant Hanover sells insurance for defendant Mason Insurance Agency, Inc. In October 2000, defendants placed a commercial auto insurance policy for a customer, CSM Corporation, with plaintiff. However, the name of a CSM employee, James Nader, was not listed on the application nor was it noted that one of the listed vehicles was Nader's personal car. In October 2001, Nader was driving his car with his sister as a passenger. Nader drove into a stone barrier in front of a home. Nader's sister suffered a spinal cord injury and resulting paralysis. Plaintiff has paid no-fault benefits for her injuries and settled Nader's sister's suit against him.
Plaintiff sued to recover these payments, alleging that defendants breached their agency agreement with plaintiff. However, the agency agreement plaintiff attached to the complaint was executed in June 2001, months after the CSM policy began. The court permitted plaintiff to amend its complaint to add a count for indemnity, based on a clause in the parties' agency agreement. Plaintiff also attached the 2001 agency agreement to the amended complaint.
The case evaluated at $700,000, which both sides rejected. Plaintiff moved for summary disposition under MCR 2.116(C)(10), again attaching the 2001 agreement to the motion as the contract in dispute. In their response, defendants argued that plaintiff had not shown there was any contract between plaintiff and defendants, noting that the attached agreement was dated months after the CSM policy began and that the agency agreement in effect in October 2000 (executed in 1998) was between defendant Mason and plaintiff's predecessor, Lake States Insurance Agency. Plaintiff replied, arguing that it is the successor to Lake States Insurance Company. The court denied the motion, concluding that "questions of fact abound in this case, including whether the Agreement relied on by Plaintiff was in effect between these parties at the relevant period of time, and whether its breach warrants indemnification."
After deliberating a few hours, the jury requested a copy of the 1998 agency agreement. The court explained to the jurors that they could not have the 1998 agreement because it was not admitted into evidence and that they should ignore any reference to it in their notes. The jury unanimously found for defendants, finding that there was no "written agency contract between the plaintiff and the defendants at the time the insurance application was submitted by defendant." The court entered judgment and denied plaintiff's motion for a new trial.
Plaintiff first argues that the court erred in failing to grant it summary disposition. We disagree. "This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition." Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999) (citation omitted).
In their response to plaintiff's motion for summary disposition, defendants challenged plaintiff's ability to prove the existence of a contract between the parties, pointing out that the 2001 agency agreement attached to the complaint was made after the alleged breach. Defendants submitted t
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