                          STATE OF MICHIGAN

                           COURT OF APPEALS


JEREMY DROUILLARD,                                                 FOR PUBLICATION
                                                                   February 27, 2018
               Plaintiff-Appellee,

v                                                                  No. 334977
                                                                   St. Claire Circuit Court
AMERICAN ALTERNATIVE INSURANCE                                     LC No. 2015-002282-NI
CORPORATION,

               Defendant-Appellant.


Before: TALBOT, C.J., and METER and TUKEL, JJ.

TUKEL, J. (concurring).

        I agree that summary disposition must be granted to defendant, and I join the majority
opinion. There are two principal legal points at issue: (1) Did the pickup truck hit, or cause an
object to hit the ambulance, as required by the policy language; and (2) was the pickup truck a
“hit and run vehicle” as required by the policy language in order for there to be coverage. The
majority answers the first question in the negative, a conclusion with which I agree, and which is
sufficient to mandate summary disposition in favor of defendant. The dissent answers the first
question in the affirmative by relying on previous decisions of this Court which have ignored the
second question and which merely assumed that the vehicles at issue in those cases were hit-and-
run vehicles. I write separately to point out the assumptions which have been and are being built
into our jurisprudence for future cases, which I believe merit review at some point by our
Supreme Court, even if this case does not present the issue clearly enough to warrant such
review.

                                     I. POLICY LANGUAGE

       The policy at issue here required that the pickup truck carrying the drywall “hit, or cause
an object to hit, an ‘insured,’ a covered ‘auto’ or a vehicle an ‘insured’ is ‘occupying.’”
(Emphasis added.) Rather than focusing on the critical “hit, or cause an object to hit” language,
as does the majority, the dissent focuses on this Court’s opinion in Dancey v Travelers Prop Cas
Co, 288 Mich App 1; 792 NW2d 372 (2010):

       The majority states that the Dancey Court was focusing on the possibility of a
       “substantial physical nexus” between the ladder and another vehicle and not on
       the “cause an object to hit” phrasing from the policy. But implicit in the Dancey

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       Court’s holding was that the situation in Dancey satisfied the conditions of the
       policy. Therefore, Dancey provides supportive caselaw for plaintiff’s position in
       the present case.

        I respectfully disagree. “A point of law merely assumed in an opinion, not discussed, is
not authoritative.” United States v Oleson, 44 F3d 381, 387 (CA 6, 1995) (NELSON, J.,
concurring), overruled on other grounds by United States v Reed, 77 F3d 139 (CA 6, 1996); see
also Webster v Fall, 266 US 507, 511; 45 S Ct 148; 69 L Ed 411 (1925); Othi v Holder, 734 F3d
259, 265 (CA 4, 2013); Nelson v Monroe Regional Med Ctr, 925 F2d 1555, 1576 (CA 7, 1991).1
Consequently, the dissent’s reliance on Dancey’s “implicit” holding of a point not raised or ruled
on, but merely assumed, is misplaced. As the majority opinion properly holds, Dancey did not
decide, and thus provides no support for, the issue of whether the facts of the present case satisfy
the requirement in the policy that “[t]he vehicle must hit, or cause an object to hit” the insured.
The majority correctly construes those words, which plainly do not cover the situation here,
where the ambulance hit stationary objects that had been dropped by the pickup truck, rather than
the objects hitting the ambulance.

                  II. WHAT CONSTITUTES A “HIT AND RUN VEHICLE”?

        The analysis in Dancey has another flaw—it fails to fully consider what is necessary for a
vehicle to constitute a “hit-and-run” vehicle, the threshold for coverage in the first instance.
Defendant argues that there is no evidence that the driver of the pickup truck knew of an accident
and then left the scene, the statutory definition of some hit-and-run offenses. Both the majority
and the dissent agree that defendant’s reliance on statutory definitions is misplaced; because the
term itself is undefined in the policy, statutory definitions have no applicability, and the term
must be given its ordinary meaning. See Citizens Ins Co v Pro-Seal Serv Group, Inc, 477 Mich
75, 83; 730 NW2d 682 (2007). The majority and dissent also agree that if the term “hit-and-run
vehicle” encompasses some requirement that the driver had to have known of the accident, there
was sufficient evidence of knowledge here to deny summary disposition on that point. That is so
in this case because one fair reading of the record is that the drywall fell off the truck just
seconds before the ambulance hit it, as the majority opinion recognizes. Under those
circumstances, it is a fair inference that the driver would have felt the shift in weight of the truck,
and would have looked up at the rearview mirror and seen the accident or its immediate
aftermath. The driver likely would have heard the crash as well. Therefore, there was sufficient
evidence in this case to conclude that the truck was a hit and run vehicle, and so coverage was at
least possible, which is sufficient to preclude summary disposition as to that issue.




1
 The opinions of lower federal courts are not binding on this Court, but such opinions may be
considered for their persuasive value. See Abela v Gen Motors Corp, 469 Mich 603, 606-607;
677 NW2d 325 (2004).


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                             A. HIT AND RUN V. RUN AND HIT

        Dancey and Berry v State Farm Mut Auto Ins Co, 219 Mich App. 340; 556 NW2d 207
(1996), the cases relied upon by the dissent and by plaintiff, however, contain a flaw in the form
of an assumption, which is related to the knowledge issue. The requirement of a “hit-and-run
vehicle” requires something basic—that a vehicle “hits” another vehicle and then “runs.”
Regardless of whether the phrase “hit-and-run” imposes some requirement of knowledge on the
part of the driver, its very phrasing imposes a temporal requirement—the “hit” must precede the
“run.” Dancey discussed only what constitutes the “hit” portion of the analysis; after finding that
satisfied, it did not discuss the “run” component at all. Thus, under Dancey, a vehicle which in
some sense starts a chain of events which later causes an accident (thus, according to Dancey,
satisfying the “hit, or cause an object to hit” language of the policy), is assumed to constitute a
“hit-and-run” vehicle. But that cannot be correct, as the facts of Dancey demonstrate.

        In Dancey, a ladder fell or dropped off a truck some time before the plaintiff’s vehicle
struck the ladder on the highway. At least one vehicle in front of the plaintiff’s, which had
blocked her view, managed to avoid the ladder. Dancey, 288 Mich App at 18. Witnesses at the
scene talked about a truck which may have dropped the ladder, but the plaintiff did not know if
anyone had seen a truck. Id.

         Thus, even assuming that the “hit” portion of the “hit and run” requirement was met in
Dancey, there was no evidence that the driver fled or “ran” from an accident, even if the driver
knew that the ladder had fallen off. Unlike in the present case, there was no immediate accident
which followed the ladder coming to a stop on the roadway, and when the ladder fell it was not
necessarily the case that an accident would ensue. One vehicle seemed to have avoided the
ladder, and the plaintiff almost did as well. But in any event, all that the evidence showed was
that after losing the ladder, the truck continued driving before an accident took place. Even if it
could be proven that the driver of whatever vehicle lost the ladder knew that it had fallen off, at
most it could be said that the driver had created a high likelihood of an accident by creating a
very dangerous situation. Continuing one’s driving under such circumstances, i.e., not stopping,
is not flight or leaving the scene of an accident (as no accident has yet occurred) and thus does
not fit the ordinary sense of running as used in the term “hit and run vehicle.” By thereby putting
the cart before the horse, Dancey converted the term “hit-and-run” into a new concept, “run-and-
hit,” because the later accident had the legal effect of turning the driving which preceded the
accident into the running. Dancey simply labeled a truck which creates a dangerous condition
short of an accident and which continues driving a “hit-and-run vehicle,” where it is known with
hindsight that an accident did actually occur. Dancey simply ignored or overlooked the fact that
there must first be a “hit” and then a “run” in order for a vehicle to become a “hit-and-run”
vehicle. By ignoring the “hit-and-run” requirement, Dancey violated the rule that “The language
of insurance contracts should be read as a whole and must be construed to give effect to every
word, clause, and phrase,” Mich Battery Equip, Inc v Emcasco Ins Co, 317 Mich App 282, 284;
892 NW2d 456 (2016), by essentially reading the “run” requirement of “hit-and-run” out of the
policy.

       Berry, a case also cited by the dissent, demonstrates this point even more clearly. In
Berry, a truck was hauling a load of scrap metal. At some point it stopped, and the driver got out
and inspected the load. Between five and fifteen minutes later, at a spot about a half-mile from

                                                -3-
where the driver had stopped to inspect the truck, a fallen piece of metal caused an accident.
Berry, 219 Mich App at 350. By that time, the truck had long since driven away. The Berry
Court examined the facts and determined that “a substantial physical nexus between the hit-and-
run vehicle and the object struck by plaintiff was established.” Id. The Berry Court did not
discuss at all whether or how the truck had “run” from what it determined was the “hit.” Thus,
even setting aside whether there was a basis for determining “a substantial physical nexus”
between the truck and the plaintiff’s vehicle, simply labeling the truck “the hit-and-run” vehicle
where it continues driving and is gone from the scene of what later becomes an accident ignores
the temporal requirement of a hit followed by a run. It is not hard to imagine a scenario such as
in Berry in which a sharp piece of metal could lie on a rural road for days undiscovered and then
cause an accident. Under those circumstances, labeling someone a “hit-and-run” driver for
having driven days before, even if the driver had known about a part falling off, simply strains
the term “hit-and-run” beyond a reasonable reading. See Radenbaugh v Farm Bureau Gen Ins
Co of Mich, 240 Mich App 134, 138; 610 NW2d 272 (2000) (stating that courts should avoid
strained construction of insurance policies).2

                           B. APPLICATION TO CURRENT CASE

       In the present case, the policy language, properly construed, solves the problem. Its
requirement that a vehicle “hit, or cause an object to hit” an insured vehicle (as opposed to the
insured vehicle hitting a stationary object, as in this case) necessarily requires that an accident
occur prior to whatever driving by the unidentified vehicle is labeled as running. However, if
this Court continues to adopt the Dancey and Berry assumptions of what constitutes “hit and
run” then our Supreme Court will have to address the issue in an appropriate case.

                                                            /s/ Jonathan Tukel




2
  The temporal requirement of “hit and run” suggests that when this Court does consider whether
in order to be labeled a hit-and-run, the driver of a vehicle needed to have been aware of an
accident, the answer will be yes. As this analysis has shown, absent a preceding accident there
can be no hit and run. For the same reasons, absent knowledge of the accident, driving is simply
driving, and only becomes “running” if the driver is running from something, i.e., an accident.


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