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Cincinnati Insurance Co. v. Bott11/10/2005
UNPUBLISHED
Before: Bandstra, P.J., and Neff and Donofrio, JJ.
Defendant appeals as of right from a circuit court order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10) and denying defendant's cross-motion for summary disposition. Because neither notice nor claim was made to the insurer for underinsured motorist coverage before the claimant settled his residual bodily injury claim, and he otherwise failed to obtain the consent of his insurer before settling and releasing the tortfeasor, we affirm.
Defendant was injured in an automobile accident while driving his employer's vehicle. His employer had policies of insurance with plaintiff for no-fault coverage, underinsured motorist coverage, and worker 's compensation coverage. Although the driver of the other vehicle involved in the accident did not have insurance coverage, the owner of the other vehicle was insured through Allied Insurance. Defendant settled his claim against the owner and driver of the other vehicle for $100,000, the amount of Allied's policy limit, and executed a release. Prior to settlement of the residual bodily injury claim, defendant determined and obtained an acknowledgment from plaintiff of non-reimbursement of the worker 's compensation payments made to defendant. Well after the settlement, defendant for the first time made a demand for underinsured motorist benefits pursuant to the policy with plaintiff. Plaintiff filed this declaratory action seeking a determination that defendant was barred from recovering underinsured motorist benefits because defendant did not comply with the terms of the policy before settling the claim. Following cross-motions for summary disposition, the trial court denied defendant's motion and granted plaintiff's motion pursuant to MCR 2.116(C)(10) on the basis of defendant's failure to obtain plaintiff's consent to the settlement.
Summary disposition may be granted under MCR 2.116(C)(10) when "there is no genuine issue of material fact, and the moving party is entitled to judgment . . . as a matter of law." This Court reviews the grant or denial of summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Plaintiff's insurance policy excludes coverage for " ny claim settled without our consent." Viewed in the light most favorable to defendant, the evidence, although subject to contradiction by plaintiff, indicates that defendant's attorney informed plaintiff's claims adjuster of defendant's intention to settle the case against Allied for the policy limits. The adjuster did not inform defendant's counsel of the policy requirement that plaintiff consent to the proposed settlement. There is no dispute that defendant did not obtain plaintiff's express consent before settling.
Defendant argues that there is at least a question of fact concerning whether plaintiff waived or is estopped from asserting the consent requirement because plaintiff failed to alert defendant of the requirement, even when defendant's attorney informed plaintiff of defendant's intention to settle the case with the tortfeasor. According to defendant, "an insurer has a duty to bring important clauses to an insured's attention whenever there is reason to believe that the insured will not be aware of the clause on his own; and that breach of that duty amounts to a waiver of the requirement, or an estoppel to assert the requirement."
Defendant's position that an insurer has a duty to inform an insured of the terms of the policy and that failure to do so estops the insurer from asserting a defense was rejected in Naparstek v Citizens Mut Ins Co, 19 Mich App 53; 172 NW2d 205 (1969). In that case, the pl
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