                          STATE OF MICHIGAN

                           COURT OF APPEALS


MEMBERSELECT INSURANCE COMPANY,                                     UNPUBLISHED
                                                                    December 4, 2018
               Plaintiff-Appellant,

v                                                                   No. 338162
                                                                    Macomb Circuit Court
DANIELLE GUZMAN and JARETTE McCOMB,                                 LC No. 2016-001749-CK

               Defendants-Appellees.


Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

        In this action seeking a declaratory judgment, plaintiff appeals by leave granted the trial
court’s denial of its motion for summary disposition. Because the insurance policy expressly
excludes coverage under the circumstances presented, we reverse and remand for entry of
summary disposition in favor of plaintiff.

                                        I. BASIC FACTS

       Plaintiff is the issuer of a homeowner’s insurance policy to defendant Jarette McComb.
McComb operated his business, Dynamite Window Cleaning, which was a sole proprietorship at
the time. McComb occasionally contracted with other individuals, including his friend,
defendant Danielle Guzman, to assist him. McComb also helped perform maintenance at various
properties which were owned or managed by Cheryl Velloney. As he did with his window
washing business, McComb would enlist the help of various people to help with the property
maintenance.

        On the afternoon of May 29, 2013, Guzman had been helping McComb with cleaning
windows. Afterward, Guzman and McComb went to eat lunch at McComb’s home. Velloney
had asked McComb to mow one of her properties in Warren, and Guzman agreed to help
McComb. So McComb and Guzman tried to load McComb’s (self-propelled) push lawnmower
into the back of McComb’s pickup truck. At the time, the tailgate on McComb’s pickup truck
could not be opened, so the two of them had to lift the mower over the tailgate. During this
process, the two placed the mower so it was resting on the tailgate, to allow Guzman to move
some ladders that were still in the bed of the truck. McComb slid the mower forward so its rear
wheels would “hang” on the tailgate, but the wheels travelled over the tailgate and dropped
straight down into the bed of the truck. The dropping of the mower caused a part of the mower

                                                -1-
to strike Guzman in the head. After a break, McComb and Guzman drove in the pickup truck to
the Warren property, where the two took turns mowing the grass.

         But five days after the incident, Guzman went to the hospital complaining of increasing
pain in his head. Since the hospital visit, Guzman has been treating with a neurologist.
Following the incident, Guzman did not perform any other work for McComb. McComb also
testified that he, himself, stopped doing the property preservation work within a year after the
incident.

        Guzman filed an action against McComb alleging that McComb’s negligence caused his
injuries. With McComb’s auto insurance policy having lapsed, McComb then demanded that
plaintiff, pursuant to the homeowner’s policy, defend and indemnify him against Guzman’s
claim.

        Plaintiff thereafter filed the instant declaratory judgment action, in which it sought a
declaration that because the policy excluded coverage, it had no duty to defend or indemnify
McComb in connection with the underlying action. Plaintiff moved for summary disposition,
arguing that there was no coverage under the policy’s “land motor vehicle” exclusion because
the incident arose out of McComb’s use of a land motor vehicle. Plaintiff also argued that the
“business pursuits” exclusion in the policy applied because the pickup truck and lawnmower
were being used for McComb’s business pursuits. The trial court denied plaintiff’s motion.
With regard to the land-motor-vehicle exclusion, the court ruled that the exclusion did not apply
because plaintiff failed to present any evidence that the vehicle “produced” Guzman’s injury.
And with respect to the business-pursuits exclusion, the trial court found that a genuine question
of fact existed. Specifically, the court determined that there was a factual question of whether
there was “a degree of continuity” to McComb’s property preservation work because he “did not
have a set number of lots or properties” for which he mowed the lawn “on a regular basis.”

       Plaintiff’s appeal to this Court followed.

                                 II. STANDARD OF REVIEW

       We review a trial court’s decision on a motion for summary disposition brought under
MCR 2.116(C)(10) de novo.1 Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Dalley v Dykema
Gossett, 287 Mich App 296, 304 n 3; 788 NW2d 679 (2010). When deciding a motion for
summary disposition under this rule, a court must consider the pleadings, affidavits, depositions,
admissions, and other documentary evidence then filed in the action or submitted by the parties


1
 Oddly, plaintiff cited both MCR 2.116(C)(8) and (10) in its motion for summary disposition,
but summary disposition under MCR 2.116(C)(8) is for a defendant to utilize when a plaintiff
has not “state[d] a claim on which relief can be granted.” Accordingly, it is clear that plaintiff’s
motion truly was based on MCR 2.116(C)(10). In any event, because the parties and the trial
court considered documentary evidence beyond the pleadings, MCR 2.116(C)(10) is the proper
court rule. See Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000).


                                                -2-
in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Wilson v Alpena Co Rd
Comm, 474 Mich 161, 166; 713 NW2d 717 (2006). The motion is properly granted if the
evidence fails to establish a genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. Michalski v Bar-Levav, 463 Mich 723, 730; 625 NW2d
754 (2001).

        Further, this Court reviews the interpretation of an insurance policy de novo. Henderson
v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999).

           III. IS COVERAGE BARRED UNDER THE TERMS OF THE POLICY?

       Plaintiff argues that it is entitled to summary disposition because the express terms of the
policy preclude coverage under the circumstances presented. We agree. This case involves the
proper interpretation of the insurance policy plaintiff issued to McComb.

       We enforce contracts according to their terms, as a corollary to the parties’ liberty
       to enter into a contract. We examine contractual language and give the words
       their plain and ordinary meanings. An unambiguous contractual provision
       reflects the parties’ intent as a matter of law, and if the language of the contract is
       unambiguous, we construe and enforce the contract as written. Courts may not
       create an ambiguity when contract language is clear. Rather, this Court must
       honor the parties’ contract, and not rewrite it. [Kendzierski v Macomb Co, 319
       Mich App 278, 282; 901 NW2d 111 (2017) (quotation marks, citation, and
       brackets omitted).

Further, while an insured bears the burden of proving that his claim falls within the terms of the
policy, it is the insurer who “must prove that an exclusion to coverage is applicable.” Heniser v
Frankenmuth Mut Ins Co, 449 Mich 155, 161 n 6, 172; 534 NW2d 502 (1995) (quotation marks
and citation omitted).

       Plaintiff claims that two exclusions contained in the policy, either of which would
preclude coverage, apply in the instant case. The homeowner’s policy that plaintiff issued to
McComb contains the following exclusions:

       BODILY INJURY AND PROPERTY DAMAGE NOT COVERED

       Under Part II, we will not cover:

       1. bodily injury or property damage arising out of an insured person’s
       ownership, maintenance, use or negligent entrustment of . . . any of the following:

                                              * * *

               b. a land motor vehicle which is owned, operated or used by . . . an
               insured person. . . .

                                              * * *


                                                -3-
       3. bodily injury or property damage arising out of business pursuits of an
       insured person.



        Because either exclusion would independently preclude coverage, if the business
pursuits-exclusion applies in this case, we need not address the land-motor-vehicle exclusion. It
is not disputed for the purposes of this motion that Guzman suffered a bodily injury. What is
disputed is whether the insured, McComb, was engaging in a “business pursuit” at the time of
Guzman’s injury. We hold that he was.

         The policy does not define “business pursuits,” but it does define “business” as “any full
or part-time trade, profession or occupation.” This Court has held that an activity constitutes a
“business pursuit” if it is performed with continuity and for profit. State Mut Cyclone Ins Co v
Abbott, 52 Mich App 103, 108; 216 NW2d 606 (1974). Continuity requires either a “customary
engagement or a stated occupation.” Id. (citation omitted). An activity is conducted for profit if
it is performed “as a means of livelihood, gainful employment, [a] means of earning a living,” or
to procure “subsistence or profit.” Id. (citation omitted). “Commercial transactions or
engagements” also satisfy the profit element. Id. (citation omitted). In Abbott, the defendant
was engaged in his part-time business as a farrier when he struck a horse in the ribcage while
shoeing it, and the horse then struck and injured its owner. Id. at 107. This Court held that the
business-pursuits exclusion applied because the defendant, albeit only employed part-time as a
farrier, nevertheless was “customarily employed as a farrier for profit.” Id. at 108.

         Here, McComb testified that he is in the business of cleaning windows through his
company. He estimated that he cleans windows approximately four days a week. But he also
testified that he earned income performing “property preservation” in which he maintained and
repaired properties. Velloney, who managed numerous properties, contacted him to perform
repair and maintenance work as needed. She told him how much she would pay for a job, and
McComb would text her or send her a written bill after completing the job. On the day of the
incident, Guzman agreed to help McComb mow the lawn at one of Velloney’s properties.
Guzman was injured when they loaded the lawnmower into McComb’s pickup truck to transport
it to the property. McComb testified that he continued to perform property preservation work for
Velloney for up to a year after the incident.

        There is no doubt that McComb performed the property preservation work with the
motive of making a profit. The trial court opined that a material question of fact existed
regarding whether the work was “continuous” because McComb did not have “a set number” of
properties that he mowed on a regular basis. The trial court erred. First, McComb testified that
he performed more than merely lawn-mowing services; he stated that he would perform
whatever maintenance work Velloney needed done. Second, the fact that there was no set
schedule or a set list of properties is not determinative. This Court recognized in Abbott that
continuity requires either a “customary engagement” or a “stated occupation.” Abbott, 52 Mich
App at 108. Here, it was “customary” for Velloney to contact McComb when his services were
needed. In addition, the fact that McComb primarily considered himself to be a window washer
is not particularly relevant. The policy’s definition of “business” includes “any full or part-time
trade, profession or occupation,” and the farrier in Abbott, who was found to meet the continuity

                                                -4-
requirement, operated his business on a part-time basis. Therefore, we hold that there is no
question of fact whether McComb was engaging in a business pursuit at the time of the
accident—he was; McComb’s property preservation work was profit motivated and the activity
had a sufficient amount of continuity. Accordingly, the business-pursuits exclusion applies, and
the trial court erroneously denied plaintiff’s motion for summary disposition on that basis.

        Defendant’s reliance on Randolph v Ackerson, 108 Mich App 746; 310 NW2d 865
(1981), is misplaced. In Randolph, the defendant purchased a barn, razed it, and moved the
resulting wood onto his own property. Id. at 747, 749. After responding to the defendant’s
advertisement, the plaintiff purchased some of the barn wood. The plaintiff was injured while he
and the defendant were loading the wood onto the plaintiff’s truck. Id. at 747. The Randolph
Court held that the business-pursuits exclusion did not apply because, although the activity was
undoubtedly profit motivated, it was a single incident and, therefore, did not constitute
“continuous” activity. Id. at 748-749. The Court stressed that defendant had never engaged in
the razing of barns for wood as a profit-making activity either before the incident in question or
at any time thereafter. Id. But Randolph is distinguishable from the present case on its facts
because unlike the defendant in Randolph, McComb here did not engage in his property
preservation activity on only a single occasion. Rather, there was evidence that McComb had
done this type of work for Velloney many times before the incident and continued to do so for
“up to a year” afterward.

        Reversed and remanded for entry of summary disposition in favor of plaintiff. We do not
retain jurisdiction. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.

                                                            /s/ Colleen A. O'Brien
                                                            /s/ Jonathan Tukel
                                                            /s/ Anica Letica




                                               -5-
