            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



ESTATE OF MARI ZIMMERMAN-                                          UNPUBLISHED
THOMPSON, by SPERRY L. MEGERIAN,                                   April 18, 2019
Personal Representative,

               Plaintiff-Appellee,

v                                                                  No. 336483
                                                                   Bay Circuit Court
UNITED SERVICES AUTOMOBILE                                         LC No. 15-003782-CK
ASSOCIATION,

               Defendant-Appellant.


Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.


SWARTZLE, P.J. (concurring in part, dissenting in part).

        I concur with regard to the majority’s resolution of the umbrella policy in Part V. With
regard to the majority’s resolution of the main automobile policy in Part VI, I respectfully
dissent.

        Thought experiments can be enlightening. They can illustrate how a society run by
philosopher-kings would devolve into a totalitarian nightmare, see Plato, The Republic, or how a
public resource can be depleted in the absence of private property rights or other sound
regulation, see Hardin, The Tragedy of the Commons, Science (1968). More concretely and
relevant here, a thought experiment can crystallize the essence of an appeal like this one.

        Based on the factual record, it is undisputed that this appeal presents a straightforward
either/or proposition—either Mari Zimmerman-Thompson resided primarily with her husband
Christopher Thompson at the Gleaner house, or she resided primarily with her son and daughter-
in-law at the Stoneham house. There is no third option, unlike a situation where someone might
have two homes in Michigan but spend the winter in Florida. Unless we are prepared to find that
Mari resided nowhere, she had to reside somewhere, and the two options are the Gleaner house
or the Stoneham house.
        While the majority identifies several genuine issues of fact, I disagree that it has
identified a genuine issue of material fact—i.e., where did Mari primarily reside? MCR
2.116(C)(10). As I read the record, there is no question about where and with whom Mari
resided. First, any deposition testimony about what someone might recall about Mari’s
purported intentions must be set aside as inadmissible hearsay. McCallum v Dept of Corrections,
197 Mich App 589, 603; 496 NW2d 361 (1992). Second, this was a second marriage for both
Mari and Christopher, so it is quite unremarkable that each spouse would still own real property
from a prior marriage, especially given the housing crisis of the late 2000s. This was not a
marriage of convenience, but rather a marriage of love and affection in which the two spouses
traveled together, entertained together, and lived together, as the majority aptly recognizes.

        Third, it is also unremarkable that Mari would visit the Stoneham house several times
during a typical week, given that Mari was not employed, the houses were within several miles
of each other, her son and daughter-in-law lived at the Stoneham house, and she loved to
garden—an activity that she performed at the Stoneham house, the Gleaner house, and several
other locations. Fourth, Mari stored some items at the Stoneham house (and her son used some
of these items), but many items of clothes, jewelry, furniture, artwork, and gardening equipment
were located where she lived, i.e., the Gleaner house. Fifth, while she received some mail at the
Stoneham house (again, unremarkable given that she used to live there and still owned it), when
she sent and received holiday and birthday cards, it was from and to the Gleaner house.

        Sixth and most importantly, over the past seven or eight years, Mari spent most of her
evenings at the Gleaner house with Christopher. She seldom left Christopher to stay overnight
alone in part because he had a history of seizures and other health problems. When she did stay
at the Stoneham house, it was with Christopher and the couple stayed in, as her son described,
the guest room. The last time that she stayed in the Stoneham house for an extended period was
the autumn before the July 2015 accident, when she and Christopher stayed at the Stoneham
house for a couple of weeks because the hardware floors at the Gleaner house were being sanded
and refinished. And, as usual, the couple stayed together, and they stayed together in the
Stoneham house’s guest room.

       So, the thought experiment is this—Imagine shortly before the accident in July 2015 that
Mari had been asked under oath where and with whom she primarily resided, at the Gleaner
house with her husband or at the Stoneham house with her son and daughter-in-law (in the guest
room)? Is there really any question what her answer would have been? On this record, I
conclude that there is not.

      Accordingly, I respectfully dissent from the majority’s holding with respect to the main
automobile policy.



                                                           /s/ Brock A. Swartzle




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