Order                                                         Michigan Supreme Court
                                                                    Lansing, Michigan

  July 15, 2010                                                            Marilyn Kelly,
                                                                               Chief Justice

  140735                                                             Michael F. Cavanagh
  140738                                                             Elizabeth A. Weaver
                                                                      Maura D. Corrigan
                                                                     Robert P. Young, Jr.
                                                                     Stephen J. Markman
  AUTO-OWNERS INSURANCE COMPANY,                                     Diane M. Hathaway,
          Plaintiff/                                                                Justices
          Counter-Defendant/Appellee,
  v                                            SC: 140735
                                               COA: 277574
                                               Mason CC: 05-000436-CZ
  FERWERDA ENTERPRISES, INC., d/b/a
  HOLIDAY INN EXPRESS LUDINGTON,
            Defendant/
            Counter-Plaintiff/Appellant,
  and
  DARYL BRONKEMA, Next Friend of
  JACKSON THOMAS BRONKEMA,
  CALEB ANDREW BRONKEMA and
  SAVANNAH JOY BRONKEMA, and
  DARYL BRONKEMA, Individually,
  and MELISSA BRONKEMA,
             Defendants.
  _________________________________________/

  AUTO-OWNERS INSURANCE COMPANY,
          Plaintiff/
          Counter-Defendant/Appellee,
  v                                            SC: 140738
                                               COA: 277574
                                               Mason CC: 05-000436-CZ
  FERWERDA ENTERPRISES, INC., d/b/a
  HOLIDAY INN EXPRESS LUDINGTON,
            Defendant/
            Counter-Plaintiff/Appellee,
  and
  DARYL BRONKEMA, Next Friend of
  JACKSON THOMAS BRONKEMA,
  CALEB ANDREW BRONKEMA and
  SAVANNAH JOY BRONKEMA, and
  DARYL BRONKEMA, Individually, and
                                                                                                                2

MELISSA BRONKEMA,
           Defendants-Appellants.
_________________________________________/

       On order of the Court, the applications for leave to appeal the January 28, 2010
judgment of the Court of Appeals are considered. Pursuant to MCR 7.302(H)(1), in lieu
of granting leave to appeal, we VACATE the portions of the Court of Appeals opinion on
remand stating incorrectly that the plaintiff, Auto-Owners Insurance Company, “declined
to defend . . . Holiday Inn in the suit brought by the Bronkemas,” and that the “trial court
found that Auto-Owners breached its contract because it was obligated to defend . . .
Holiday Inn.” In fact, Auto-Owners continued to defend Holiday Inn while it pursued a
declaratory ruling in this case.

        We REMAND this case to the Mason Circuit Court for clarification of the record
on the issue whether the trial court found that Auto-Owners’ claim was frivolous within
the meaning of MCR 2.625(A)(2) and MCL 600.2591(3)(a)(i) through (iii). Although the
trial court’s ruling that the defendants were entitled to an attorney fee award, coupled
with its obvious awareness of the American Rule and the requirements of MCR
2.625(A)(2), imply that the trial court found that the requirements of the court rule were
satisfied, the record on this issue is unclear. On remand, the trial court shall clarify
whether it found that Auto-Owners’ claim satisfied the definition(s) of “frivolous” set
forth in MCL 600.2591(3)(a)(ii) and/or (iii), as to its insured, defendant Ferwerda
Enterprises, Inc. In clarifying its findings and rulings, the trial court shall refer
specifically to, and base its findings and rulings specifically upon, the provisions of MCR
2.625(A)(2) and MCL 600.2591, and, in particular, on the definitions of “frivolous”
contained in MCL 600.2591(3)(a)(i) through (iii). The trial court may allow further
argument and briefing by the parties, and may conduct any further hearing it may deem
necessary, but it shall file its clarification of the record, together with the transcript of any
hearing, with the Clerk of this Court within 56 days of the date of this order.

        In all other respects, leave to appeal is DENIED, because we are not persuaded
that the remaining questions presented should be reviewed by this Court.

       We retain jurisdiction.




                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          July 15, 2010                       _________________________________________
        p0708                                                                 Clerk
