Opinion
Docket No. 129375.
Decided March 11, 1991; approved for publication June 20, 1991, at 9:15 A.M.
Tom R. Pabst, for the plaintiff.
Draugelis Ashton (by John A. Ashton), for the defendant.
Before: McDONALD, P.J., and BRENNAN and JANSEN, JJ.
Plaintiff sought to recover $350,000 from defendant insurance company for injuries sustained in a motorcycle-automobile collision. In this declaratory action to establish defendant's liability, the trial court granted plaintiff's motion for summary disposition, finding that plaintiff could recover under residual liability coverages of three automobile policies issued by defendant. At the same time, the trial court denied defendant's cross-motion for summary disposition. Defendant appeals as of right from the trial court's grant of summary disposition, alleging that the insurance policies involved in the present case precluded the stacking of coverage. We agree and reverse.
The present action stems from a collision between an automobile and motorcycle. Both vehicles were insured by defendant. In addition, the father of the driver of the automobile had two motor vehicle policies issued by defendant on two other automobiles. The motorcyclist also had a policy issued by defendant on an automobile. Plaintiff, a passenger on the motorcycle, sought recovery under all five policies. Defendant conceded liability under the policies written for the motorcycle and the car involved in the accident and, therefore, paid plaintiff the coverage limits on these two policies. The present action was instituted to determine the applicability of the policies for the three remaining automobiles that were not involved in the accident. We hold that those policies do not provide coverage.
Our review of a declaratory judgment is conducted de novo. Auto Club Ins Ass'n v Page, 162 Mich. App. 664, 666-667; 413 N.W.2d 472 (1987). In determining whether an insurance policy applies in a given case, this Court must first determine whether the policy is clear and unambiguous on its face. We look to the language of the policy and construe any ambiguity in favor of the insured. Allstate Ins Co v Freeman, 432 Mich. 656, 665; 443 N.W.2d 734 (1989) (RILEY, C.J.). If a reading of the entire contract of insurance fairly admits of but one interpretation, it may not be said that an exclusion is ambiguous or fatally unclear. Raska v Farm Bureau Mutual Ins Co, 412 Mich. 355, 362; 314 N.W.2d 440 (1982); Allen v Auto Club Ins Ass'n, 175 Mich. App. 206, 209-210; 437 N.W.2d 263 (1988).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. VanDyke v League General Ins Co, 184 Mich. App. 271, 273; 457 N.W.2d 141 (1990). Summary disposition is appropriate if the court is satisfied that it is impossible for the nonmoving party's claim to be supported at trial because of a deficiency which cannot be overcome. Id. If a nonmoving party fails to establish that a material fact is at issue, the motion is properly granted. Id.
In the present case, the policies of insurance, under the heading "When coverages A and Y do not Apply," contain the following provision:
There is no coverage under A and Y:
* * *
4. For the operation, maintenance or use of any vehicle:
a. Owned by:
b. Registered in the name of: or
c. Furnished or available for the regular or frequent use of: You, your spouse or any relatives. This does not apply to your car or a newly acquired car.
We hold that this provision is clear and unambiguous. Powers v DAIIE, 427 Mich. 602, 623-624; 398 N.W.2d 411 (1986) (WILLIAMS, C.J.). The language establishes that coverage is excluded when the accident involves the use of a vehicle owned by the insured, the insured's spouse or relatives of the insured unless the vehicle is the insured's car, which is described in the definitional section of the insurance policy as the vehicle described on the declarations page. This section precludes recovery under the policies issued on the three automobiles not involved in the accident. Thus, we hold that the trial court erred in finding that this provision was ambiguous and in granting plaintiff's motion for summary disposition. Similarly, because plaintiff has failed to provide evidence of any material fact to contradict the evident meaning of this provision, we hold that the trial court should have granted summary disposition for defendant on the basis of the language in the policies.
We reverse and remand the case for entry of an order of summary disposition in favor of defendant under MCR 2.116(C)(10). We do not retain jurisdiction.