                           STATE OF MICHIGAN

                           COURT OF APPEALS



DEPOSITORS INSURANCE COMPANY,                                     UNPUBLISHED
                                                                  January 13, 2015
              Plaintiff-Appellee,

v                                                                 No. 318269
                                                                  Ingham Circuit Court
DAHLIA LUERA-HARRIS, Personal                                     LC No. 12-001330-CK
Representative for the Estate of ANTHONY
HARRIS, JOYE MICHELLE COCHRAN,
Personal Representative for the Estate of TAYLER
SCOTT COCHRAN, and CHRISTINE
BOSSENBERY, Personal Representative for the
Estate of HOLLY M. BOSSENBERY,

              Defendants-Appellants,
and

JORDAN ROBERT HENIKA,

              Defendant.


Before: TALBOT, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

        In this suit for declaratory relief concerning the coverage for a homeowner’s insurance
policy, defendants, the Estate of Anthony Harris, the Estate of Tayler Scott Cochran, and the
Estate of Holly M. Bossenbery (collectively the Estates), by their personal representatives,
appeal by right the trial court’s order granting plaintiff Depositors Insurance Company’s motion
for summary disposition under MCR 2.116(C)(10). On appeal, the Estates argue the trial court
erred when it determined that Depositors Insurance had no duty to defend its insured, defendant
Jordan Robert Henika, against the Estates’ claims that Henika’s negligence proximately caused
the accident that killed Harris, Cochran, and Bossenbery. Because the trial court correctly
determined that Depositors Insurance’s policy did not apply to the claims at issue, we affirm.

                                       I. BASIC FACTS

        On the night of January 29 to January 30, 2011, Henika and his roommates hosted a party
at their East Lansing apartment. Harris, Cochran, and Bossenbery attended the party. Henika

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and his roommates provided alcohol to the partygoers, including minor Brett Johnson. Harris,
Cochran, and Bossenbery left with Johnson. Johnson, who was legally intoxicated, drove the
vehicle. Johnson later lost control and the vehicle crashed broadside into a tree. Harris,
Cochran, and Bossenbery died in the accident. The Estates later sued Johnson, Henika, and
Henika’s roommates for wrongful death.

       Henika’s father purchased a homeowner’s insurance policy from Depositors Insurance.
The policy included coverage for personal liability claims:

       A. Coverage E – Personal Liability

       If a claim is made or a suit is brought against an “insured” for damages because of
       “bodily injury” or “property damage” caused by an “occurrence” or “personal
       injury” to which this coverage applies, we will:

       1. Pay up to our limit of liability for the damages for which an “insured” is
       legally liable. Damages include prejudgment interest awarded against an
       “insured”, and

       2. Provide a defense at our expense by counsel of our choice, even if the suit is
       groundless, false or fraudulent. We may investigate and settle any claim or suit
       that we decide is appropriate. Our duty to settle or defend ends when the amount
       we pay for damages resulting from the “occurrence” has been exhausted by
       payment of a judgment or settlement.

        The policy also has a motor vehicle exclusion that states that the applicable coverage
does not apply to any “motor vehicle liability” if, “at the time and place of an ‘occurrence’” the
motor vehicle had to have been registered. “Motor Vehicle Liability” is defined as “Liability for
‘bodily injury’ or ‘property damage’ arising out of the: . . . Maintenance, occupancy, operation,
use, loading or unloading of such vehicle or craft by any person.”

        In November 2012, Depositors Insurance sued for declaratory relief. It asked the trial
court to declare that the policy at issue did not cover claims against Henika for proximately
causing the accident by wrongfully serving alcohol to Johnson. As such, it asked the trial court
to declare that Depositors Insurance had no duty to defend Henika or provide coverage to the
extent that he might be found liable.

        Depositors Insurance moved for summary disposition under MCR 2.116(C)(10) in May
2013. It argued that, under the undisputed facts, Henika’s actions did not constitute an
“accident” and, therefore, there was no “occurrence.” In the alternative, Depositors Insurance
argued that coverage was excluded under the exclusion for “motor vehicle liability” because
Harris, Cochran, and Bossenbery died in a motor vehicle accident. It further argued that the
exclusions for “expected or intended injury,” the “business” exclusion, and the “controlled
substance” exclusion also applied to the facts.

       The trial court agreed that Henika should have reasonably foreseen that harm would
occur when he provided alcohol to minors and, therefore, there was no “accident” and no
“occurrence” as defined in the policy. The trial court also concluded that the “motor vehicle

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liability” exclusion would apply even if there had been an “occurrence.” For these reasons, it
determined that Depositors Insurance had no duty to defend or indemnify Henika and granted the
motion for summary disposition.

       This appeal followed.

                                 II. SUMMARY DISPOSITION

                                 A. STANDARDS OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Grandberry-Lovette v Garascia, 303 Mich App 566, 572; 844 NW2d 178 (2014).
This Court also reviews de novo the proper interpretation of an insurance agreement. Henderson
v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999).

                                         B. ANALYSIS

        “[I]nsurance policies are subject to the same contract construction principles that apply to
any other species of contract.” Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23
(2005). An unambiguous insurance policy must be enforced as written. Id. at 468. If there are
two reasonable interpretations of a contract, factual development is necessary and summary
disposition is inappropriate. Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d
401 (1997). However, awkward wording or a clumsy arrangement of words will not make a
contract ambiguous if, despite the awkward language, the contract “admits of but one
interpretation.” Id. And mere disagreement about the meaning of a provision does not, by itself,
render it ambiguous. Harbor Park Market, Inc v Gronda, 277 Mich App 126, 133 n 3; 743
NW2d 585 (2007).

        The threshold question in this case concerns whether there was an occurrence sufficient
to trigger coverage. “Occurrence” is defined in the policy to mean “an accident,” which results
in bodily injury or property damage. The term “accident” is not defined in the policy. When
such is the case, our Supreme Court has held that the term “accident” must be construed
according to its ordinary meaning. Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 113-114;
595 NW2d 832 (1999). The ordinary understanding of the term “accident” is “an undesigned
contingency, a casualty, a happening by chance, something out of the usual course of things,
unusual, fortuitous, not anticipated, and not naturally to be expected.” Id. (quotation marks and
citation omitted). The definition must also be “framed from the standpoint of the insured, not the
injured party.” Id. at 114. Because “an insured need not act unintentionally in order for the act
to constitute an accident,” it is important to “distinguish between intentional acts that can be
classified as ‘accidents’ and those that cannot.” Id. at 115 (quotation marks and citation
omitted). If the harm was either “intended by the insured or reasonably should have been
expected because of the direct risk of harm intentionally created by the insured’s actions,” the
intentional act cannot be classified an accident. Id. (quotation marks and citation omitted). The
intentional act at issue in the present case is Henika’s provision of alcohol to minors and the
resulting harm is the car crash.

       This Court examined a similarly worded contract in a case where the alleged conduct
was, as here, the intentional provision of alcohol to minors. Allstate Ins Co v Morton, 254 Mich
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App 418; 657 NW2d 181 (2002). In Morton, the plaintiff alleged that the insured provided
alcohol to minors at a party and that the plaintiff’s minor was given so much alcohol that she
passed out. After she passed out, another minor, who had also received alcohol from the insured,
sexually assaulted the plaintiff’s minor. Id. at 419-420. This Court held that the provision of
alcohol to the minors did not constitute an accident within the meaning of the insurance policy
“because [the insured] reasonably should have expected that giving minors enough alcohol to
allow them to pass out would result in harm.” Id. at 422. It did not matter, the Court stated, that
the specific harm that occurred was another minor’s intentional rape instead of alcohol
poisoning. Id. at 422-423.

        The rationale stated in Morton controls the outcome in the present case. In both cases the
actual harm was not caused by the provision of the alcohol, but through acts by a minor who
consumed the alcohol. And as in Morton, it does not matter if the actual harm was inflicted by a
third party (Johnson) so long as the insured (Henika) should have reasonably expected that harm
would occur. Id. at 422. Similarly, it does not matter that the harm that did occur exceeded the
harm that the insured actually expected. See Masters, 460 Mich at 116-117.

        It also does not matter that Henika did not give the minors enough alcohol to cause them
to pass out, because the resulting harm was not the kind of harm that is caused by passing out. In
Morton, giving the plaintiff’s daughter enough alcohol to pass out made the girl vulnerable to a
physical assault. In the case at hand, the resulting harm was the negligent operation of a vehicle.
Therefore, Depositors Insurance only had to show that Henika provided enough alcohol to the
minors for him to reasonably foresee that it might impair their ability to drive. Even if Henika
did not provide the minors with enough alcohol to pass out, he provided them with enough
alcohol to create a situation where it was foreseeable that a minor who had consumed alcohol
would operate a vehicle in a negligent manner.

        Because Henika’s actions created a direct risk of harm that was reasonably foreseeable,
the result at issue here—a vehicular crash—cannot be said to be accidental; accordingly, there
was no occurrence within the meaning of the insurance policy. Masters, 460 Mich at 115-116.

                                       III. CONCLUSION

       The trial court did not err when it determined that there was no occurrence, as that term
has been defined under the policy. Accordingly, Depositors Insurance had no duty to provide a
defense or coverage to Henika. And the trial court properly granted Depositors Insurance the
requested relief on summary disposition. Because our resolution of this issue is dispositive, we
decline to address the remaining arguments made on appeal.

       Affirmed.



                                                            /s/ Michael J. Talbot
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Michael J. Kelly



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