            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS



KORECO CLEAVES,                                                     UNPUBLISHED
                                                                    May 9, 2019
               Plaintiff-Appellant,

v                                                                   No. 342576
                                                                    Wayne Circuit Court
METROPOLITAN GROUP PROPERTY AND                                     LC No. 16-009254-NI
CASUALTY INSURANCE COMPANY,

               Defendant-Appellee,
and

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ISIS DAVIS, and
INDE DAVIS,

               Defendants.
.


Before: BOONSTRA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

     In this no-fault insurance action, plaintiff appeals by right the trial court’s order granting
summary disposition to defendant Metropolitan Group Property and Casualty Insurance
Company and dismissing plaintiff’s underinsured-motorist claim. We affirm.

                                       I. BACKGROUND

      The parties do not dispute the basic facts underlying this action. Plaintiff was riding a
moped1 on Grand River Ave in Detroit when he was struck by a vehicle driven by defendant Isis


1
  As used in this opinion, the term “moped” refers to a two-wheeled motorized land vehicle,
similar to a motorcycle.



                                                -1-
Davis but owned by defendant Inde Davis. The moped was owned by plaintiff’s mother.
Plaintiff’s mother had entered into a no-fault insurance contract with defendant Metropolitan
which provided both personal-injury-protection (PIP) and underinsured-motorist coverage for
her and her relatives under certain conditions. The policy expressly covered two vehicles: a
2013 Dodge Journey and a 1995 Ford F-150. The moped was not listed on the policy.

        As a result of the accident, plaintiff allegedly suffered injuries to his head, neck, back,
and nervous system. Plaintiff sought compensation for these injuries from several defendants in
a single complaint. Count I of the complaint pled a first-party no-fault claim for PIP benefits
against Metropolitan and defendant State Farm Mutual Automobile Insurance Company. 2 Count
II of the complaint pled claims of negligence and vicarious liability against defendants Isis and
Inde Davis. Finally, Count III pled a claim for underinsured-motorist benefits against
Metropolitan.

        The trial court dismissed plaintiff’s claim for PIP benefits against State Farm, reasoning
that plaintiff had failed to provide State Farm with timely notice of the suit under MCL
500.3145.3 Plaintiff later resolved his claim against Metropolitan for PIP benefits and those
parties stipulated to the trial court’s dismissal of Count I in its entirety. Plaintiff also stipulated
to the dismissal of Count II against Isis and Inde Davis.




2
  The complaint did not explain how State Farm related to plaintiff or the suit. Other documents
in the record indicate that plaintiff believed that he had a valid insurance policy with State Farm,
but State Farm denies that such a policy existed at the time of the accident.
3
    MCL 500.3145 provides:
                 (1) An action for recovery of personal protection insurance benefits
         payable under this chapter for accidental bodily injury may not be commenced
         later than 1 year after the date of the accident causing the injury unless written
         notice of injury as provided herein has been given to the insurer within 1 year
         after the accident or unless the insurer has previously made a payment of personal
         protection insurance benefits for the injury. If the notice has been given or a
         payment has been made, the action may be commenced at any time within 1 year
         after the most recent allowable expense, work loss or survivor's loss has been
         incurred. However, the claimant may not recover benefits for any portion of the
         loss incurred more than 1 year before the date on which the action was
         commenced. The notice of injury required by this subsection may be given to the
         insurer or any of its authorized agents by a person claiming to be entitled to
         benefits therefor, or by someone in his behalf. The notice shall give the name and
         address of the claimant and indicate in ordinary language the name of the person
         injured and the time, place and nature of his injury.
                 (2) An action for recovery of property protection insurance benefits shall
         not be commenced later than 1 year after the accident.


                                                 -2-
       Metropolitan moved for summary disposition on Count III of the complaint, arguing that
the insurance policy excluded plaintiff from underinsured-motorist coverage because he was
occupying a motor vehicle that was owned by a policyholder, but for which coverage was not
sought. The trial court agreed that the policy precluded plaintiff’s underinsured-motorist claim
and granted summary disposition to Metropolitan under MCR 2.116(C)(10), thereby dismissing
Count III in its entirety. This appeal followed.

                                          II. ANALYSIS

        Plaintiff does not challenge the trial court’s dismissal of Counts I and II of his complaint.
Plaintiff’s only argument on appeal is that the trial court erred by concluding that plaintiff was
excluded from underinsured-motorist coverage and by granting summary disposition to
Metropolitan on Count III of his complaint. “We review de novo a trial court’s grant or denial of
summary disposition.” Tomra of North America, Inc v Dep’t of Treasury, 325 Mich App 289,
293-294; ___ NW2d ___ (2018). “A motion for summary disposition under MCR 2.116(C)(10)
tests the factual sufficiency of a claim, and is appropriately granted when, except as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.” Id. at 294. “We review de novo questions of contract
interpretation and considerations regarding the legal effect of a contractual provision.” Fuller v
GEICO Indemnity Co, 309 Mich App 495, 498; 872 NW2d 504 (2015).

         “Because a no-fault insurance policy is a contract, the general rules of contract
interpretation apply.” Id. We “must construe and apply unambiguous contract provisions as
written.” Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377-378; 836 NW2d 257 (2013)
(internal citation and quotation marks omitted).4 “In ascertaining the meaning of a contract, we
give the words used in the contract their plain and ordinary meaning.” Id. at 378 (internal
citation and quotation marks omitted). A contractual provision is ambiguous when it is
reasonably capable of conflicting interpretations. Id. The insurer bears the burden of proving
that a policy exception applies and an ambiguous exclusionary provision will be construed in
favor of the insured. Id. at 378-379.

        Plaintiff’s mother’s policy with Metropolitan is divided into several sections. First, there
is a set of general definitions that apply throughout the contract. Then, there are four coverage
sections: one for “AUTOMOBILE LIABILITY”; one for “PERSONAL INJURY
PROTECTION”; one for “UNINSURED AND UNDERINSURED MOTORISTS”; and one for
“PHYSICAL DAMAGE.” Each coverage section contains its own set of “ADDITIONAL
DEFINITIONS” which apply to that coverage section only, as well as a set of “COVERAGE
EXCLUSIONS.” The policy concludes with a lengthy recitation of “GENERAL POLICY



4
  This Court will, however, refuse to apply an unambiguous contractual provision when the
provision “violates the law or succumbs to a defense traditionally applicable under
general contract law.” Dells, 301 Mich App at 377-378. Plaintiff, however, has not argued that
a traditional contract defense applies or that the coverage exclusion violates the law. Plaintiff
raises only interpretive arguments on appeal.


                                                -3-
CONDITIONS” and a signature page. Some of these provisions are then amended by a policy
endorsement.5

        Plaintiff argues that he is entitled to coverage under the underinsured-motorist section of
his mother’s policy with Metropolitan. In this section, Metropolitan agreed to pay damages for
bodily injury sustained by “you or a relative, caused by an accident arising out of the ownership,
maintenance, or use of an underinsured motor vehicle, which you or a relative are legally
entitled to collect from the owner or driver of an underinsured motor vehicle.”6 Underinsured-
motorist coverage did not extend, however, to “any person occupying or struck by a motor
vehicle owned by you or a relative, other than a covered automobile.”

         There is no dispute (1) that plaintiff’s mother owned the moped that plaintiff was riding
at the time of the accident, (2) that plaintiff is a relative of his mother, the policy holder, and (3)
that plaintiff was struck by an underinsured vehicle driven by Isis Davis and owned by Inde
Davis. Accordingly, assuming arguendo that plaintiff has a right to collect from the Davis
defendants, the only questions remaining are whether plaintiff was “occupying” the moped at the
time of the accident and whether the moped qualifies as a “motor vehicle . . . other than a
covered automobile.”

        Regarding the former question, “occupying” is not defined in the underinsured-motorist
section of the policy. Rather, the general-definitions section of the policy defines “occupying” to
“mean being in or upon, entering into, or alighting from a motor vehicle.”7 Accordingly, by
riding “upon” the moped, plaintiff was occupying that vehicle within the plain meaning of the
policy. As to the latter question, the underinsured-motorist section defines “covered automobile”
in pertinent part to mean “an automobile described in the Declarations to which the Automobile
Liability coverage of this policy applies and for which a specific premium is charged.” As
previously mentioned, the moped was not listed in the policy declarations. Thus, the moped does
not qualify as a “covered automobile.”

        Therefore, this case turns on whether the moped constitutes a “motor vehicle” as that
term is used in the policy exclusion. Motor vehicle is not defined in the underinsured-motorist
sections of the policy or its endorsement. Rather, the general-definitions section of the policy
provides that “ ’MOTOR VEHICLE’ means a land motor vehicle designed for use mainly on
public roads.”8 Plaintiff does not argue that the moped was not a land vehicle designed for use


5
  The relevant parties appear to have executed contemporaneously the main policy and its
endorsement.
6
    This exclusion was not amended by the policy endorsement.
7
    This definition was not amended by the policy endorsement.
8
  The policy lists several exceptions to this definition, none of which apply to the moped. For
instance, the policy excludes from the definition of motor vehicle “a farm type tractor or other
farm equipment designed for use principally off public roads, while not upon public roads.” This
general definition for “motor vehicle” was not amended by the policy endorsement.


                                                 -4-
on public roads. Indeed, plaintiff was injured while riding the moped on a public road.9 In fact,
plaintiff does not even address this definition in his brief on appeal.

        It would appear that this Court’s analysis could end here. Nonetheless, plaintiff provides
this Court with several contrary definitions of “motor vehicle” and argues that these definitions
indicate that the coverage exception is ambiguous. First, plaintiff argues that the exception is
ambiguous because an endorsement to the PIP-coverage section defines motor vehicle as being
limited to vehicles with “more than two wheels.”10 We disagree. As noted previously, the
general definitions apply throughout the policy. The PIP-coverage endorsement applies only
“[w]ith respect to the coverage provided by this endorsement,” meaning the PIP provisions of the
policy. Moreover, the endorsement provides that its “ADDITIONAL DEFINITION[]” for motor
vehicle applies only when it is “used in reference to this insurance,” again meaning in reference
to the PIP provisions of the policy. Thus, there is nothing in the PIP endorsement that suggests
that its definitions apply to underinsured-motorist coverage and therefore nothing in the
endorsement from which we can find any relevant ambiguity.

        Similarly, plaintiff argues that the term “motor vehicle” is ambiguous because Merriam-
Webster’s dictionary and several court cases have limited similar terms to four-wheeled vehicles.
Again, we disagree. Courts will not look to outside authorities to create an ambiguity where no
ambiguity exists in the contract. “If the contractual language is unambiguous, courts must
interpret and enforce the contract as written because an unambiguous contract reflects the
parties’ intent as a matter of law.” Hastings Mut Ins Co v Safety King, Inc, 286 Mich App 287,
292; 778 NW2d 275 (2009). The policy contains only one relevant definition for the term
“motor vehicle.” That definition is not limited to four-wheeled vehicles, although other
definitions in the policy are so limited. See Klapp v United Ins Group Agency, Inc, 468 Mich
459, 468; 663 NW2d 447 (2003) (“courts must also give effect to every word, phrase, and clause
in a contract”). Accordingly, we conclude that, under the plain language of the insurance policy,
the moped is a “motor vehicle.”

       Therefore, because plaintiff was injured while occupying a motor vehicle other than a
covered automobile, the trial court properly concluded that plaintiff was excluded from
underinsured-motorist coverage and that defendant was entitled to summary disposition.

       Affirmed.

                                                            /s/ Mark T. Boonstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Karen M. Fort Hood




9
 Plaintiff’s use of the vehicle on public roads is consistent with his mother’s registration of the
vehicle as a “MOTOR CYCLE.”
10
   As originally written, the PIP-coverage section of the policy did not contain a separate
definition for “motor vehicle.”


                                                -5-
