Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 10, 2014                                                                   Robert P. Young, Jr.,
                                                                                                 Chief Justice

  149201 & (137)                                                                       Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                           Mary Beth Kelly
                                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
  HASTINGS MUTUAL INSURANCE                                                               David F. Viviano,
  COMPANY,                                                                                            Justices
           Plaintiff/Counter-Defendant/
           Appellee/Cross-Appellant,
  v                                                        SC: 149201
                                                           COA: 296791
                                                           Oakland CC: 2004-056508-CK
  MOSHER DOLAN CATALDO &
  KELLY, INC.,
            Defendant/Counter-Plaintiff/
            Appellant/Cross-Appellee,
  and
  LISA FEINBLOOM and DAVID
  FEINBLOOM,
            Defendants.

  ____________________________________/

          On order of the Court, the application for leave to appeal the January 23, 2014
  judgment of the Court of Appeals and the application for leave to appeal as cross-
  appellant are considered. Pursuant to MCR 7.302(H)(1), in lieu of granting the
  application for leave to appeal, we REVERSE the judgment of the Court of Appeals. The
  Court of Appeals erred in holding that plaintiff Hastings Mutual Insurance Company
  (“Hastings Mutual”) did not have a duty to defend defendant Mosher Dolan Cataldo &
  Kelly, Inc. (“Mosher Dolan”) in the underlying arbitration case. The duty to defend is
  broader than the duty to indemnify. American Bumper and Mfg Co v Hartford Fire Ins
  Co, 452 Mich 440, 450 (1996). An insurer has a duty to defend, despite theories of
  liability asserted against the insured that are not covered under the policy, if there are any
  theories of recovery that fall within the policy. Id. at 451. In this case, the claimants in
  the underlying arbitration case alleged water damage to personal property that was not
  excluded from coverage by any of the exclusions in Hastings Mutual’s policy. Therefore,
  although the Fungi Exclusion excluded coverage for some of the claims asserted in the
  underlying arbitration case, Hastings Mutual had a duty to defend Mosher Dolan. And,
                                                                                                              2

because Hastings Mutual had a duty to defend, it is not entitled to restitution. We
REMAND this case to the Oakland Circuit Court for further proceedings consistent with
this order and the February 14, 2013 judgment of the Court of Appeals (Court of Appeals
Docket No. 296791). The application for leave to appeal as cross-appellant is DENIED,
because we are not persuaded that the questions presented should be reviewed by this
Court.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        December 10, 2014
       h1203
                                                                            Clerk
