            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



LATRESE HUNTER,                                                    UNPUBLISHED
                                                                   November 21, 2019
              Plaintiff-Appellant,

and

OAKWOOD HEALTHCARE INC,

              Intervening Plaintiff,

v                                                                  No. 343320
                                                                   Wayne Circuit Court
                                                                   LC No. 16-012918-NI
IRMA ABRIGO,

              Defendant,
and

PROGRESSIVE MICHIGAN INSURANCE
COMPANY,

              Defendant-Appellee.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

       Plaintiff, Latrese Hunter, appeals the trial court’s order granting summary disposition in
favor of defendant, Progressive Michigan Insurance Company. We reverse and remand for
proceedings consistent with this opinion.

               I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

        This matter arises from Hunter’s alleged fraud at the time she entered into a no-fault
insurance contract with Progressive. The crux of the issue on appeal is whether Hunter resided
with a friend at a home on Apple Creek Drive in Plymouth, Michigan, or with family members at



                                               -1-
a home on Sussex Street in Detroit, Michigan, when she submitted an application for a no-fault
insurance policy with Progressive.

        On October 3, 2015, Hunter entered into a contract for no-fault insurance with
Progressive. On the insurance application, Hunter represented that she resided on Apple Creek
Drive in Plymouth. Hunter also indicated that her vehicle was garaged in Plymouth. Based on
the information provided by Hunter, Hunter was charged a premium of $982.1 The insurance
policy provided, in relevant part, the following:

       FRAUD OR MISREPRESENTATION

              This policy was issued in reliance upon the information provided on your
       insurance application. We may void this policy at any time, including after the
       occurrence of an accident or loss, if you:

              1. made incorrect statements or representations to us with regard to any
       material fact or circumstance.

              2. concealed or misrepresented any material fact or circumstance; or

              3. engaged in fraudulent conduct;

               at the time of the application. This means that we will not be liable for
       any claims or damages that would otherwise be covered.

        On April 7, 2016, Hunter was involved in a motor vehicle accident. Hunter was allegedly
injured and was transported to the hospital via ambulance. Hunter was admitted to the hospital,
and the Detroit address was listed as Hunter’s address on the medical documents. After Hunter
was discharged from the hospital, she lived at the home on Sussex Street in Detroit.

         Hunter made a claim for personal protection insurance benefits (“PIP benefits”) through
Progressive. Hunter sought compensation for replacement services, medical mileage, medical
bills, and wage loss. After receiving Hunter’s claim, Progressive began to investigate whether
Hunter’s vehicle was actually garaged at the Plymouth address. A representative from
Progressive contacted the owner of home that was listed on Hunter’s application. Although the
home owner initially reported that Hunter had lived with her at the Plymouth address, she later
admitted that Hunter had never lived there. According to the Plymouth home owner, she had
given Hunter permission to use the Plymouth address because Hunter wanted a lower insurance
premium. The home owner indicated that she lied to the Progressive representative because she
was “scared” because she knew that Hunter was “desperate.” Based on its investigation,
Progressive refused to pay PIP benefits to Hunter.



1
 According to Progressive’s Litigation Underwriting Specialist, Hunter’s premium would have
been $2,165 if she had listed the Detroit address on her application for insurance.


                                              -2-
        On October 11, 2016, Hunter filed a complaint, seeking PIP benefits from Progressive.
On November 7, 2016, Progressive answered the complaint and filed affirmative defenses. In
relevant part, Progressive alleged that Hunter “intentionally misrepresented and/or concealed
material facts in her October 2015 application for insurance.” Thereafter, Progressive sent
Hunter a rescission notice and issued a refund of Hunter’s paid premiums. Hunter did not cash
the refund check.

        After the close of discovery, Progressive moved the trial court for summary disposition
based on assertions that Hunter was precluded from obtaining PIP benefits because the evidence
established that she had misrepresented the garaging address of the vehicle when applying for
insurance, thereby rendering the insurance policy void ab initio. Hunter opposed Progressive’s
motion for summary disposition, arguing that she was residing at the Plymouth address at the
time she submitted the application for insurance and through the date of the April 7, 2016
accident.

        Following oral argument, the trial court granted Progressive’s motion for summary
disposition. This appeal followed.

                               II. STANDARDS OF REVIEW

       We review de novo a trial court’s decision regarding a motion for summary disposition.
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Although the trial court
did not identify the subrule under which it granted summary disposition, it is apparent that the
motion was granted under MCR 2.116(C)(10) because the trial court’s consideration went
beyond the parties’ pleadings. Kosmalski ex rel Kosmalski v St John’s Lutheran Church, 261
Mich App 56, 59; 680 NW2d 50 (2004). In reviewing a motion for summary disposition brought
under MCR 2.116(C)(10), this Court considers “affidavits, pleadings, depositions, admissions,
and documentary evidence filed in the action or submitted by the parties, in the light most
favorable to the party opposing the motion.” Smith, 460 Mich at 454 (citation omitted). “A trial
court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or
other documentary evidence show that there is no genuine issue in respect to any material fact,
and the moving party is entitled to judgment as a matter of law.” Id. at 454-455.

        When the truth of a material factual assertion made by a party is contingent upon
credibility, summary disposition should not be granted. Foreman v Foreman, 266 Mich App
132, 136; 701 NW2d 167 (2005). A court may not make factual findings or weigh credibility
when deciding a motion for summary disposition. In re Handelsman, 266 Mich App 433, 437;
702 NW2d 641 (2005). Summary disposition is improper if the evidence is in conflict.
Lysogorski v Bridgeport Charter Twp, 256 Mich App 297, 299; 662 NW2d 108 (2003).
Inconsistencies in statements given by witnesses cannot be ignored, White v Taylor Distrib Co,
482 Mich 136, 142; 753 NW2d 591 (2008), and summary disposition is inappropriate where
evidence offered in the trial court is capable of supporting different conclusions and creates a
question of fact, Shelby Charter Twp v Papesh, 267 Mich App 92, 103; 704 NW2d 92 (2005).
There is no prohibition on contradicting statements that “were not made under oath or as part of
legal proceedings.” Id.



                                              -3-
        This Court also reviews de novo questions of statutory interpretation and the proper
interpretation of a contract. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23
(2005). This Court reviews the interpretation of an insurance contract just like any other
contract. McGrath v Allstate Ins Co, 290 Mich App 434, 439; 802 NW2d 619 (2010).




                                        III. ANALYSIS

        Hunter argues that the trial court erred by granting Progressive’s motion for summary
disposition because she presented sufficient evidence to support that she was residing at the
Plymouth address from October 3, 2015 through April 7, 2016. We agree.

       It is necessary to interpret the insurance contract in order to determine whether the trial
court erred when granting summary disposition in favor of Progressive. The language of
insurance contracts should be read as a whole and must be construed to give effect to every
word, clause, and phrase. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663
NW2d 447 (2003). When the policy language is clear, a court must enforce the specific
language of the contract. Hensier v Frankenmuth Mut Ins Co, 449 Mich 155, 160; 534 NW2d
502 (1995). When an insurance company relies on a policy’s exclusionary clause as an
affirmative defense against the policyholder’s lawsuit, the insurance company has the burden to
prove that the exclusion applies. Shelton v Auto Owners Ins Co, 318 Mich App 648, 657; 899
NW2d 744 (2017).

       The fraud-exclusion clause in the no-fault policy in this case provides:

              This policy was issued in reliance upon the information provided on your2
       insurance application. We may void this policy at any time, including after the
       occurrence of an accident or loss, if you:

              1. made incorrect statements or representations to us with regard to any
       material fact or circumstance.

               2. concealed or misrepresented any material fact or circumstance; or

               3. engaged in fraudulent conduct;

               at the time of the application. This means that we will not be liable for
       any claims or damages that would otherwise be covered.



2
  “Your” and “you” is defined as “a person shown as a named insured on the declarations
page.” “We” and “us” is defined in the insurance policy as “the underwriting company
providing the insurance, as shown on the declarations page.”


                                               -4-
       Thus, the insurance policy clearly and unambiguously states that the policy can be
rendered void if the named insured misrepresents any material fact or circumstance at the time
the application is submitted to the company providing the insurance.

       To prove the applicability of this fraud exclusion, Progressive must show that:

               (1) the misrepresentation was material, (2) that it was false, (3) that the
       insured knew that it was false at the time it was made or that it was made
       recklessly, without any knowledge of its truth, and (4) that the insured made the
       material misrepresentation with the intention that the insurer would act upon it. A
       statement is material if it is reasonably relevant to the insurer’s investigation of a
       claim. [Bahri v IDS Prop Cas Ins Co, 308 Mich App 420, 424-425; 864 NW2d
       609 (2014), citing Mina v Gen Star Indemnity Co, 218 Mich App 678, 686-687;
       555 NW2d 1 (1996), rev’d in part on other grounds, 455 Mich 866 (1997)
       (citation omitted).]

       In this case, it is undisputed that Hunter’s policy was rescinded because she represented
on her application for no-fault insurance that she lived in Plymouth and that the vehicle would be
garaged in Plymouth. Because the application and the policy do not define the term “residence,”
we must turn to dictionary definitions to decipher its meaning. See Citizens Ins Co v Pro-Seal
Serv Group, Inc, 477 Mich 75, 84; 730 NW2d 682 (2007).

        “Residence” is defined as “the act or fact of dwelling in a place for some time” and “the
place where one actually lives as distinguished from one’s domicile or a place of temporary
sojourn.” Merriam-Webster’s Collegiate Dictionary (11th ed). “Dwelling” is defined as “a
shelter (as a house) in which people live,” and “live” is defined as “to occupy a home.”
Merriam-Webster’s Collegiate Dictionary (11th ed). Thus, “residence” in the context of the
insurance policy at issue in this case means a house or place of shelter where the named insured
actually lives and occupies that is not merely a place of temporary sojourn. See also McGrath,
290 Mich App at 443 (“[T]he term ‘reside’ requires that the insured actually live at the
property.”). Importantly, by distinguishing a residence from a domicile, the dictionary’s
definition of “residence” does not imply one’s intent to remain permanently or indefinitely. See
Grange Ins Co of Mich v Lawrence, 494 Mich 475, 493; 835 NW2d 363 (2013) (defining
“domicile”). See also McGrath, 290 Mich App at 443 (“[R]eside” is not synonymous with the
legal definition of the term “domicile,” which “may have a legal or technical meaning beyond
mere physical presence, including the intent to live at that location at some time in the
future . . . .”).

        Applying the definition of “residence” to the facts of this case, we conclude that there is a
question of fact as to whether Hunter “dwell[ed] . . . for some time” and “actually live[d]” at the
Plymouth address when she applied for insurance in October 2015. Record evidence supports
that Hunter lived at the Plymouth address between October 3, 2015 and April 7, 2016 and that
she did not reside at the Detroit address during that time. Hunter changed the address on her
driver’s license to the Plymouth address before she applied for insurance through Progressive,




                                                -5-
and she had mail delivered to her at the Plymouth address.3 Additionally, evidence supports that
Hunter had her own bedroom and kept personal possessions at the Plymouth address. She also
had a key to the Plymouth home at one point and paid rent to the homeowner, albeit on an
inconsistent basis. Importantly, Hunter was present at the Plymouth address on a daily basis in
order to sleep, groom herself, and clean the areas of the home in which she occupied. Although
Hunter did not spent a substantial amount of time at the Plymouth address, Hunter’s deposition
testimony establishes that she was required to be at the Detroit address on a daily basis because
of family obligations. Further, the definition of residence referenced above does not require an
individual to spend a majority of his or her time at the home in question; rather, the definition of
residence only requires that an individual actually live in and occupy the home.

        Progressive presents evidence to support that Hunter never informed the Wayne County
Family Court that she was residing at the Plymouth address even though she was required to do
so pursuant to a court order4 and that Hunter continued to use the Plymouth address after she
moved to the Detroit address after the April 2016 accident. Although we agree that this evidence
tends to support that Hunter did not actually live at the Plymouth address and instead used it as a
mailing address, this Court cannot make credibility determinations, In re Handelsman, 266 Mich
App at 437, and is required to view the evidence in a light most favorable to the nonmoving
party when reviewing a motion for summary disposition, Smith, 460 Mich at 454. Further, the
question of whether an insured has committed fraud is generally a question for the jury to decide.
See Meemic Ins Co v Fortson, 324 Mich App 467, 473; 922 NW2d 154 (2018).

        Taking the evidence in a light most favorable to Hunter, we conclude that Hunter
provided sufficient evidence to create a genuine issue of material fact as to whether she
“dwell[ed] . . . for some time” and “actually live[d]” at the Plymouth address on October 3, 2015.
The trial court therefore erred by granting summary disposition in favor of Progressive based on



3
  Hunter argues on appeal that the trial court improperly determined that because the
documentary evidence that supported that Hunter received mail at the Plymouth address
amounted to inadmissible hearsay, it could not be considered when deciding the motion for
summary disposition. We agree with Hunter that the evidence did not constitute hearsay.
Nonetheless, because the record establishes that the trial court ultimately considered the
documentary evidence, the trial court’s initial improper determination that the evidence
amounted to inadmissible hearsay is not dispositive.
4
  Progressive argues that this Court should disregard certain evidence presented by Hunter
because Hunter “historically represented” that she lived at the Detroit address throughout the
pendency of child custody and support proceedings. We reject Progressive’s argument because
there is no evidence before this Court to support that Hunter indicated under oath in relation to
the child custody proceedings that she resided at the Detroit address from October 2015 through
April 2016. See Shelby Charter Twp, 267 Mich App at 103 (“We decline to extend the general
rule against contradicting deposition testimony with an affidavit in the summary disposition
context to prevent a party from contradicting statements that were not made under oath or as part
of legal proceedings.”).


                                                -6-
its finding that Hunter materially misrepresented her residence address and the garaging address
when procuring the insurance policy.

        Progressive argues, as an alternative ground for affirmative relief, that the trial court
properly granted summary disposition because the undisputed record evidence establishes that
Hunter made misrepresentations when presenting her wage-loss claim to Progressive. This
argument was not addressed by the trial court when the court decided Progressive’s motion for
summary disposition and was not fully presented to the trial court. Consequently, we decline to
consider the argument and reverse and remand to the trial court for proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                           /s/ Thomas C. Cameron
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Douglas B. Shapiro




                                               -7-
