Opinion
No. 123535.
September 26, 2003.
Summary Disposition.
No. 123535. In lieu of granting leave to appeal, the judgment of the Court of Appeals on the issue of the duty to defend is affirmed, the judgment of the Court of Appeals on the issue of the duty to indemnify is vacated, and the case is remanded to that Court for further consideration of that issue. MCR 7.302(G)(1). The duty to defend is distinct from and is broader than the duty to indemnify. American Bumper Mfg Co v. Hartford Fire Ins Co, 452 Mich 440, 450-452 (1996). Summary disposition for the plaintiff on the duty to indemnify is not proper where the evidentiary record is not fully developed or where there is a genuine issue of material fact. Polkow v. Citizens Ins Co of America, 438 Mich 174, 180-181 (1991). In this case, the Gratiot Circuit Court granted to the plaintiff summary disposition on the duty to indemnify based on the allegations of the underlying complaint. On remand, the Court of Appeals is to consider whether the Gratiot Circuit Court's decision was based on adequate evidence under MCR 2.116(G)(3). Court of Appeals No. 231269.
CAVANAGH and KELLY, JJ. We would deny or grant leave to appeal.