                           STATE OF MICHIGAN

                           COURT OF APPEALS



AUTO-OWNERS INSURANCE COMPANY,                                  UNPUBLISHED
                                                                May 7, 2015
              Plaintiff-Appellee,

v                                                               No. 320256
                                                                Muskegon Circuit Court
CHANDRA L. NYHOF, a/k/a CHANDRA L.                              LC No. 13-048858-CK
JOWAR,

              Defendant-Appellant,
and

WILLIAM ANTHONY JONES,

              Defendant,
and

LYNN L. GLASER, GLENN W. GLASER, JR.,
and BIT O’HEAVEN, INC., d/b/a GLASER’S
GLENN LOG CABIN RESORT,

              Defendants-Appellees.


Before: METER, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

      Chandra Nyhof (defendant) appeals by right an order granting plaintiff’s motion for
summary disposition under MCR 2.116(C)(10) in this declaratory action regarding an insurance
company’s duty to defend and indemnify. We affirm.

       William Anthony Jones was sentenced to jail for first-degree home invasion and first-
degree criminal sexual conduct against defendant. Defendant filed a civil suit against the
Glasers, who were defendant’s landlords, and against Jones. The theories of liability in
defendant’s underlying complaint were negligence, breach of the common-law covenant of quiet
enjoyment, and a violation of MCL 554.139(1)(a) requiring a landlord to maintain the premises
in a manner fit for use by the intended parties.




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        The complaint alleged that the Glasers breached their duties to defendant, and that breach
was the actual, proximate, and foreseeable cause of defendant’s rape by Jones. Defendant
further alleged the rape committed by Jones caused defendant to suffer physical, emotional, and
financial damages.

       At the time of the rape, the Glasers were insured under a Tailored Protection Policy
issued by plaintiff, which provided liability coverage for bodily injury “caused by an
occurrence.” The policy defines “occurrence” as “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.” Additionally, the Glasers were
insured under a Dwelling Fire Insurance Policy with regards to the location where defendant
resided. This policy was also issued by plaintiff and provided liability coverage only for bodily
injury “caused by an occurrence to which this coverage applies.” This policy defines
“occurrence” as “an accident that results in bodily injury or property damage and includes, as
one occurrence, all continuous or repeated exposure to substantially the same generally harmful
conditions.”

        Additionally, both insurance policies contain exclusionary clauses pertinent to this case.
The Tailored Protection Policy states that coverage did not apply to bodily injury “expected or
intended from the standpoint of the insured.” And the Dwelling Fire Insurance Policy states,
“No coverage applies to bodily injury or property damage reasonably expected or intended by
the insured.”

       Plaintiff filed this declaratory action, claiming plaintiff has no duty to defend or
indemnify the Glasers under these policies. Plaintiff subsequently moved for summary judgment
pursuant to MCR 2.116(C)(10), which was granted by the circuit court. This appeal followed.

       Defendant raises two issues on appeal. The first is whether defendant’s injuries were
caused by an “occurrence” and, therefore, covered by both of plaintiff’s insurance policies. The
second is whether the exclusions in the insurance policies would limit coverage in this case.

        This Court reviews de novo decisions regarding summary disposition. Kaupp v Mourer-
Foster, Inc, 485 Mich 1033, 1035; 776 NW2d 893 (2010). A motion for summary disposition
under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of
Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The moving party is entitled to judgment “as a
matter of law” under MCR 2.116(C)(10) if the nonmoving party fails to establish a genuine issue
of material fact exists. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A
genuine issue of material fact exists when, viewed in the light most favorable to the non-moving
party, reasonable minds could differ on an issue. Allison v AEW Capital Mgt, LLP, 481 Mich
419, 425; 751 NW2d 8 (2008).

        The interpretation of an insurance contract is a question of law that this Court reviews de
novo. Morley v Auto Club of Mich, 458 Mich 459, 465; 581 NW2d 237 (1998). It is well
established that “an insurer has a duty to defend an insured and that such duty is not limited to
meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so
long as the allegations against the insured even arguably come within the policy coverage.” Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 480-481; 642 NW2d 406 (2001) (citations
omitted). “The duty to defend and indemnify is not based solely on the terminology used in the

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pleadings in the underlying action. The court must also focus on the cause of the injury to
determine whether coverage exists.” Fitch v State Farm Fire and Cas Co, 211 Mich App 468,
471; 536 NW2d 273 (1995). An insurance policy must be enforced in accordance with its terms,
but if not defined in the policy, the Court will interpret the terms of the policy in accordance with
their “commonly used meaning.” Allstate Ins Co v McCarn, 466 Mich 277, 280; 645 NW2d 20
(2002).

        Both of plaintiff’s insurance policies only provide coverage for bodily injuries caused by
an occurrence, which is defined as an accident. In this case, “accident” is not defined by either
policy. However, using the common meaning of the term, Michigan courts have stated that “an
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.”
Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 114; 595 NW2d 832 (1999). The
appropriate focus of the term “accident” must be on both the injury-causing act or event and its
relation to the resulting injury. Id. at 115.

        In this case, the Glasers’ alleged breaches of duty were not the cause of defendant’s
bodily injury. Without the underlying rape, there would have been no bodily injury and,
obviously, no basis for defendant’s civil suit. Further, in the underlying complaint, defendant
never alleged that the Glasers caused defendant bodily injury. Instead, defendant only alleged
that the intentional acts of Jones caused her bodily injury. Therefore, defendant’s bodily injury
was caused by the rape.

        Rape is an intentional criminal act. Jones was convicted of raping defendant, so it is clear
that he intended to rape defendant and that the rape was not an accident. Because the rape was
not an accident, defendant’s bodily injury was not caused by an “occurrence.” Because the
bodily injury was not caused by an “occurrence,” plaintiff’s insurance policies do not provide
coverage for defendant’s bodily injury in this case. Therefore, there is no material issue of fact
as to whether plaintiff has a duty to defend and indemnify the Glasers.

       In light of our finding that defendant’s bodily injury was not caused by an occurrence
and, therefore, not covered under plaintiff’s insurance policies, it is unnecessary to further
address defendant’s arguments about the exclusionary clauses.

        We conclude that defendant’s injuries were not caused by an occurrence, so they are not
covered by plaintiff’s insurance policies. Because there is no coverage under either insurance
policy, plaintiff has no duty to defend or indemnify the insureds in the underlying civil
complaint. The trial court’s decision to grant summary disposition in favor of plaintiff was
proper.

       Affirmed. Plaintiff may tax costs.

                                                              /s/ Patrick M. Meter
                                                              /s/ David H. Sawyer
                                                              /s/ Mark T. Boonstra




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