            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


VIVIAN WINANS,                                                      UNPUBLISHED
                                                                    May 28, 2020
               Plaintiff-Appellee,

v                                                                   No. 347872
                                                                    Oakland Circuit Court
FARMERS INS EXCHANGE,                                               LC No. 2018-163029-CZ

               Defendant-Appellant,

and

DEBORAH MORRISON and MORRISON INS
AGENCY,

               Defendants.


Before: BECKERING, P.J., and FORT HOOD and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

     I respectfully dissent. I would affirm the trial court’s denial of defendant’s motion for
summary disposition, though on different grounds than it articulated.

        Defendant Farmers Insurance Exchange relies on a provision in the policy that limits
recovery for “electronic data processing equipment” and various other items to the degree that they
are “used with the foregoing [electronic data processing equipment].” Thus, plaintiff’s CDs comes
within this provision only if the associated equipment, i.e., a CD player, is “electronic data
processing equipment.” The policy does not define “electronic data processing equipment.” I
conclude that a reasonable insured would not necessarily understand that phrase to include a CD
player. A CD player does use digital information to recreate the music, but such devices are not
necessarily understood to be “data processing equipment” any more than a turntable for playing
vinyl records would be.




                                               -1-
       Further, the policy contains a more specific exclusion regarding music systems and this
exclusion does not apply to the CDs stored on plaintiff’s property. This provision is under the
heading, “Types of Personal Property Not Insured,” and reads in pertinent part:

       7. any sound, video, mapping, tracking or communications equipment or device or
       system designed for reproducing, detecting, receiving, transmitting, recording or
       playing data, maps, location, sound, videos or pictures, and is designed only to be
       operated from the electrical system of any motor vehicle . . . . This equipment
       includes by way of example, but not limited to citizen band radios, radio or cellular
       telephones, radio transceivers, radio transmitter, two way mobile radios, scanning
       monitor receivers, radar or laser detectors, car radio receivers, tape or disc players
       or recorders, global positioning system devices and any accessories, antennas,
       tapes, discs, software, reels, cassettes, cartridges, carry cases or other devices used
       with such equipment device or system. [(Emphasis added).]

        This provision plainly suggests that “disc players” and “discs” or a “system designed for
reproducing . . . sound” are within the coverage of the policy unless they are intended for use in,
and used in, a motor vehicle. Moreover, this provision does not use the term “electronic data
processing equipment,” strongly suggesting that the term “electronic data processing equipment”
in the provision cited by defendant was not intended, or at least not unambiguously so, to include
devices intended only for music reproduction despite the fact that they involve electronic means
of reproducing music.

        While defendant claims that the provision on which it relies is unambiguous, it is worth
noting that it has not always been defendant’s position that this provision includes CDs. The
provision was not relied upon in the insurer’s denial letter nor in its answer to the complaint or
affirmative defenses. Although defendant is not estopped by its failure to cite the provision in its
denial letter, that failure demonstrates that the provision defendant now claims is unambiguous
was not recognized as such by its own adjusters, a fact that supports a finding of ambiguity.

        Given the ambiguity of the provision on which defendant relies and the language of the
provision set forth above, I conclude that a reasonable insured would not necessarily understand
that the “electronic data processing equipment” exception included her CDs. Accordingly, I would
affirm.

                                                              /s/ Douglas B. Shapiro




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