            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ESTATE OF GREGORY MESSENGER, by                                    UNPUBLISHED
PATRICIA J. L. MESSENGER, Personal                                 December 26, 2019
Representative, and MAINS CONSTRUCTION
LLC,

               Plaintiffs-Appellants,

v                                                                  No. 344690
                                                                   Oakland Circuit Court
ATAIN INSURANCE COMPANY,                                           LC No. 2017-158286-CK

               Defendant-Appellee,
and

BERKSHIRE AGENCY, INC.,

               Defendant.


Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

        Plaintiffs appeal from an order of the circuit court granting summary disposition in favor
of defendant Atain Insurance Company (defendant) pursuant to MCR 2.116(C)(8) (failure to
state a claim) and MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.

        Gregory Messenger was killed in a construction accident that occurred on the premises of
Piedmont Concrete. Messenger was employed by NBI Construction Services (NBI), which was
a subcontractor for plaintiff Mains Construction (Mains), the general contractor. The Messenger
Estate filed suit against Piedmont, Mains, and NBI. Mains tendered the suit to defendant, its
general liability insurer. Defendant denied coverage for the claim. Piedmont settled with the
estate and NBI was dismissed pursuant to the exclusive remedy provision of worker’s
compensation. Mains settled with the estate for $1,000,000, and entered into a settlement
agreement, a covenant not to sue, and an assignment of rights and claims agreement with the
estate. A consent judgment was entered. Thereafter, plaintiffs filed suit against defendant




                                               -1-
alleging breach of contract and seeking a declaratory judgment. The trial court ultimately
granted summary disposition in favor of defendant and this appeal followed.

       The trial court granted summary disposition, concluding that there is no dispute that the
Employees, Subcontractors, Independent Contractors, Temporary Workers, or Volunteers
endorsement has an exclusion that excludes coverage in this case:

       “Bodily injury” to an “employee”, subcontractor, employee of any subcontractor,
       “independent contractor”, employee of any independent contractor”, “temporary
       worker”, “leased worker”, “volunteer worker” of any insured or any person
       performing work or services for any insured arising out of and in the course of
       employment by or service to any insured for which any insured may be held liable
       as an employer or in any other capacity; [emphasis added].

We agree with the trial court that this exclusion precludes any obligation by defendant to
indemnify Mains for this claim. It is not disputed that Messenger was an employee of Mains at
the time of the accident, that Mains was a subcontractor of the insured, and that Messenger was a
person performing services for the insured.

       Plaintiffs argue that the trial court erred by granting summary disposition without
allowing discovery to continue regarding the question whether there was a latent ambiguity in
the contract. We disagree.

        We review motions for summary disposition de novo. Shay v Aldrich, 487 Mich 648,
656; 790 NW2d 629 (2010). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint and summary disposition is appropriate if no factual development could justify
recovery. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A motion under
MCR 2.116(C)(10) is appropriate if, after considering all the evidence in the light most favorable
to the nonmoving party, there is no genuine issue of material fact. Id. at 120. Finally, while
summary disposition is usually not appropriate before the completion of discovery, it may be
granted if there is not a fair chance that further discovery would uncover factual support for the
claim. Kelly-Nevils v Detroit Receiving Hosp, 207 Mich App 410, 421; 526 NW2d 15 (1994).1

        Where “the terms of a contract are unambiguous, their construction is for the court to
determine as a matter of law and the plain meaning of the terms may not be impeached with
extrinsic evidence.” Zurich Ins Co v CCR and Co, 226 Mich App 599, 604; 576 NW2d 392
(2003) (citation omitted). Extrinsic evidence may be considered if it establishes a latent
ambiguity from what would otherwise appear to be clear and intelligible language in the
contract. See Shay, 487 Mich at 667-668.




1
  Plaintiffs have raised the issue whether Michigan or Ohio law should apply to this case. But
plaintiffs have conceded that, on the issues relevant here, it does not matter. Accordingly, like
the trial court, we shall analyze this case under Michigan law.


                                               -2-
         Plaintiffs first argue that, before the trial court granted summary disposition, they should
have been permitted to depose one or more employees of defendant knowledgeable about the
various clauses in the policy and the effect on this claim. Plaintiff asserts that we cannot plainly
accept that the endorsement unambiguously deprives Mains of coverage and that “someone must
answer the question” about how the exclusion can be written “to include everyone on the
construction site where [whether?] under the control of the general contractor or their owner
employer.” The answer to that question is actually fairly simple—by writing it to do so. More to
the point, we do not need the input of defendant’s employees regarding their opinion about what
the contract means. The interpretation of the contract is for the court to do, and for this we look
to the language of the contract itself.

       Plaintiffs claim that an ambiguity is created because of a “Stop Gap Employers Liability”
endorsement to the policy. That endorsement provides in pertinent part as follows:

              We will pay those sums that the insured becomes legally obligated to pay
       as damages because of “bodily injury by accident” . . . to your “employee” to
       which this insurance applies.

Plaintiffs’ argument, however, overlooks the fact that the scope of this endorsement is limited by
the following provision: “This insurance applies to “bodily injury by accident” . . . only if” the
“ ‘bodily injury by accident’ . . . takes place in the ‘coverage territory”. And the policy provides
that the “coverage area” is Canada. The accident did not occur in Canada and, therefore, the
stop-gap provision does not apply in this case. And, more generally, because it does not apply in
all cases, in cannot create an ambiguity by establishing an irreconcilable conflict in the contract
provisions. Rather, it merely provides that there are coverage differences in Canada.2

        Plaintiffs next argue that a latent ambiguity is created by the policy’s Independent
Contractors Liability Insurance endorsement. We disagree. That endorsement creates conditions
that the insured must meet with respect to independent contractors regarding hold-harmless
agreements, indemnity, and being named on the independent contractors’ insurance policies as
an additional named insured. The policy then provides that a failure “to comply with any of the
above conditions does not alter the coverage provided by this policy. However, should you fail
to comply with any of the above conditions, any subcontractors hired by an Insured will be
considered your employees for premium computation purposes.” (Emphasis added.)

        Plaintiffs endeavor to interpret this provision as somehow creating coverage for injuries
to the employees of subcontractors, or at least creating an ambiguity regarding such coverage.
This argument, however, ignores two important points. First, the policy clearly states that there



2
  Plaintiffs do raise a question whether the applicable stop-gap provision provides that the
coverage area is Canada or whether it is Michigan and Ohio. But even accepting that the
coverage area is, in fact, Michigan and Ohio, the argument still fails because, by its terms, it
provides coverage for bodily injury to “your ‘employee’” and Messenger was not Mains’
employee.


                                                -3-
is no altering of coverage. And, second, that the consequence of a failure to comply results in
the employees of the subcontractor being treated as employees of the insured for purposes of
calculating the premium due under the policy.

        Plaintiffs further argue that the more reasonable interpretation of the policy is to conclude
that the employee exclusion only applies to employees of subcontractors where those employees
are deemed to be de facto employees of the insured under worker’s compensation law. But
plaintiffs provide no meaningful argument why that is the more reasonable conclusion. Rather,
the more meaningful conclusion is that the policy means exactly what it states: that coverage
does not apply to, among others, employees of subcontractors. Indeed, if the purpose of the
exclusion of subcontractors’ employees was to address those that would be deemed de facto
employees of the insured, there would be a much more straightforward way of achieving this.
That is, the exclusion clause would be written something to the effect of excluding coverage for
“the insured’s employees, including those deemed to be de facto employees,” or some such
language. Plaintiffs provide no compelling argument why, if this was the intended purpose, the
policy would not have employed a more unambiguous approach.

        In sum, we conclude that the clear and unambiguous language of the policy excludes
coverage for bodily injury to the employees of subcontractors and, therefore, excludes coverage
for the claim at issue here. Moreover, plaintiffs have failed to establish any patent or latent
ambiguity in the contract which would give rise to a finding of coverage. Nor do plaintiffs
demonstrate how any further discovery could lead to finding a patent ambiguity in the policy.

       For these reasons, we affirm the trial court’s grant of summary disposition. Defendant
may tax costs.



                                                              /s/ Christopher M. Murray
                                                              /s/ David H. Sawyer




                                                -4-
