                           STATE OF MICHIGAN

                            COURT OF APPEALS



GINA BUCHMAN,                                                         UNPUBLISHED
                                                                      August 11, 2016
               Plaintiff-Appellee,

v                                                                     No. 326838
                                                                      Oakland Circuit Court
MEMBERSELECT INSURANCE COMPANY,                                       LC No. 2014-140109-CK

               Defendant-Appellant.


Before: MURPHY, P.J., and STEPHENS and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 an order denying defendant’s motion for summary
disposition in this no-fault action. We reverse.

                                        I. BACKGROUND

        This case arises out of injuries sustained by plaintiff, on October 15, 2013, at
approximately 10:00 p.m., when she was involved in a single car accident on M-59. Plaintiff
was traveling home in her vehicle on eastbound M-59 when she encountered an object that
appeared to be “a deer wrapped in a tarp.” Plaintiff swerved to avoid the object, but ultimately
lost control of her vehicle, struck the object, and crashed head-on into a concrete barrier.
Plaintiff sustained two herniated discs—one in her neck and one in her back—as a result of the
accident.

        Victoria Gill, an eyewitness who was traveling behind plaintiff’s vehicle on eastbound
M-59, observed plaintiff “lose control of her car going back and forth and then [crash] into the
median.” Gill stated that she stopped to offer assistance to plaintiff, and plaintiff’s first words to
Gill were, “did you see that deer?” Gill did not see a tarp or any other object in the highway. At
some point, an unidentified man arrived at the scene. He asked plaintiff if she was okay, and
stated that he had seen the tarp and wanted to turn around to get if off the highway before it
caused an accident. Neither Gill nor plaintiff saw the man remove anything from the highway.


1
  Buchman v MemberSelect Ins Co, unpublished order of the Court of Appeals, entered October
7, 2015 (Docket No. 326838).


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Oakland County Sheriff Deputy Derek Myers arrived at the scene at approximately 10:15 p.m.
Myers did not see a tarp on the highway when he arrived and confirmed that plaintiff was
involved in a single car accident. Plaintiff filed an uninsured motorist claim with defendant after
the accident, which defendant subsequently denied for the reason that plaintiff’s vehicle did not
come in “direct physical contact” with an uninsured motorist’s vehicle.

                                II. STANDARDS OF REVIEW

        We review a trial court’s grant or denial of a summary disposition motion de novo.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Defendant brought its
motion under MCR 2.116(C)(8) and MCR 2.116(C)(10), but the trial court did not expressly
identify the legal grounds on which it denied defendant’s motion for summary disposition.
However, because it is clear that, in reaching its decision, the trial court considered
documentation beyond the pleadings, we review the motion under the standard of MCR
2.116(C)(10). See Besic v Citizens Ins Co of the Midwest, 290 Mich App 19, 23; 800 NW2d 93
(2010).

        A motion under MCR 2.116(C)(10) tests the factual support for a claim, Walsh v Taylor,
263 Mich App 618, 621; 689 NW2d 506 (2004), and should be granted as a matter of law when
“there is no genuine issue as to any material fact,” MCR 2.116(C)(10). A genuine issue of
material fact exists when, after viewing the evidence in a light most favorable to the nonmoving
party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich
419, 425; 751 NW2d 8 (2008). This Court reviews the pleadings, affidavits, depositions,
admissions, and other evidence submitted by the parties in a light most favorable to the
nonmoving party. Walsh, 263 Mich App at 621.

       Additionally, the construction and interpretation of whether insurance policy language is
considered ambiguous is reviewed de novo as a matter of law. Dancey v Travelers Prop Cas Co,
288 Mich App 1, 7; 792 NW2d 372 (2010).

                                         III. ANALYSIS

        Defendant’s sole argument is that the trial court erred in denying its motion for summary
disposition because no genuine issue of material fact exists regarding whether plaintiff or
plaintiff’s vehicle made “direct physical contact” with an uninsured motorist’s vehicle as
required under the uninsured motorist provision of the insurance policy issued by defendant. We
agree.

        In Michigan, “[u]ninsured motorist coverage is optional—it is not compulsory coverage
mandated by the no-fault act.” Rory v Continental Ins Co, 473 Mich 457, 465; 703 NW2d 23
(2005). As such, the rights and limitations of uninsured motorist coverage are purely contractual
in nature. Id. “Insurance policies are contracts and, in the absence of an applicable statute, are
subject to the same contract construction principles that apply to any other species of contract.”
Titan Ins Co v Hyten, 491 Mich 547, 554; 817 NW2d 562 (2012) (quotation marks and citation
omitted). Because uninsured motorist coverage is optional and the policy itself controls,
“interpretation of the policy dictates under what circumstances those benefits will be awarded.”
Dawson v Farm Bureau Mutual Ins Co of Mich, 293 Mich App 563, 568; 810 NW2d 106 (2011)

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(citation omitted). “Policy language should be given its plain and ordinary meaning, and this
Court must construe and apply unambiguous terms as written,” Wells Fargo Bank, NA v Null,
304 Mich App 508, 519; 847 NW2d 657 (2014), unless the provision violates the law or public
policy, Rory, 473 Mich at 461. “A contract is unambiguous, even if inartfully worded or
clumsily arranged, when it fairly admits of but one interpretation.” McCoig Materials, LLC v
Galui Const, Inc, 295 Mich App 684, 694; 818 NW2d 410 (2012) (citation omitted).

        In this case, the uninsured motorist provision at issue provides that defendant will pay the
insured benefits where the insured suffers bodily injury which: “(a) is caused by accident; and
(b) arises out of the ownership, operation, maintenance or use of an uninsured motor vehicle;
and (c) that insured person suffers death, serious impairment of body function or permanent
serious disfigurement; and (d) that insured person is legally entitled to recover from the owner
or operator of an uninsured motor vehicle.” Further, the provision defines an “uninsured motor
vehicle” as a motor vehicle that is “(a) not insured by an owner’s or operator’s bodily injury
[policy], [or] . . . (b) a hit-and-run motor vehicle of which the operator and owner are unknown
and which makes direct physical contact with” the insured, a resident relative of the insured, or a
motor vehicle occupied by the insured. (Emphasis added.)

        This Court recently addressed the interpretation of “direct physical contact” in the context
of an uninsured motorist provision in McJimpson v Auto Club Group Ins Co, ___ Mich App___;
___ NW2d ___ (2016) (Docket No. 320671). In McJimpson, the plaintiff swerved to avoid a
piece of metal that flew off of an unidentified motorist’s vehicle. Id. at ___; slip op at 1. The
plaintiff’s vehicle never came in contact with the unidentified motorist’s vehicle and the driver of
the unidentified motorist vehicle never stopped. Id. The plaintiff was “entitled to claim
uninsured motorist benefits if the vehicle that caused her injuries met the contractual definition
of an ‘uninsured motor vehicle.’” Id.; slip op at 1-2. In McJimpson, the provision defining what
an uninsured motor vehicle is stated: “a hit-and-run motor vehicle of which the operator and
owner are unknown and which makes direct physical contact with: (1) you or a resident
relative, or (2) a motor vehicle which an insured person is occupying.” Id.; slip op at 2.

        The plaintiff argued that she was covered under the policy because “the policy language
unambiguously provided coverage” and even if the court considered the language ambiguous,
the language “should be interpreted in favor of the insured.” Id. The defendant countered
arguing that the plaintiff was not entitled to uninsured motorist benefits because “the phrase
‘direct physical contact’ is not ambiguous, and the undisputed facts demonstrate that the
unidentified semi-truck driver never made ‘direct physical contact’ with [the] plaintiff’s vehicle.”
Id. at ___; slip op at 3. The McJimpson Court held that plaintiff’s uninsured motorist coverage
was not triggered because the provision was written “more narrowly, providing for coverage
only where the unidentified vehicle makes ‘direct contact’ with the insured or her vehicle” and
that requirement was not met. Id.; slip op at 5. The Court reasoned that the policy language was
unlike previous cases dealing with propelled objects implicating the substantial physical nexus
test because the provision actually required “direct contact” between the uninsured motorist
vehicle and the plaintiff or the plaintiff’s vehicle. Id.

        The present case is analogous to McJimpson. The policy language considered in
McJimpson is identical to the provision at issue in the present case. Additionally, much like the
plaintiff in McJimpson, plaintiff never struck another motor vehicle when she swerved to avoid

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what she thought was a “deer wrapped in a tarp.” Not only was there no evidence presented that
plaintiff actually saw the tarp fall from an unidentified vehicle, but plaintiff admitted that no
other vehicle was involved in the accident. Moreover, Gill testified that plaintiff was the only
vehicle involved in the accident. Further, Myers confirmed that plaintiff was involved in a single
car accident. Therefore, it is undisputed that plaintiff’s vehicle did not make “direct physical
contact” with another motor vehicle. Because plaintiff did not make “direct physical contact”
with an unidentified “hit-and-run vehicle,” plaintiff’s is not subject to uninsured motorist
coverage under the policy issued by defendant. Accordingly, the trial court erred when it denied
defendant’s motion for summary disposition.

         With respect to plaintiff’s request that this Court consider ordering arbitration regarding
the trial court’s denial of plaintiff’s motion to counsel arbitration, the issue is not properly before
this Court. While an appellee may urge an alternative ground for affirmance without filing a
cross-appeal, an appellee may not obtain a decision more favorable than that rendered below
without first filing a cross-appeal. Barrow v Detroit Election Com’n, 305 Mich App 649, 683;
854 NW2d 489 (2014). Here, plaintiff is seeking a more favorable decision by requesting that
the Court order arbitration without filing a cross-appeal. Hence, plaintiff may not challenge the
trial court’s denial of her motion to compel arbitration. See id.

       Reversed.

                                                               /s/ William B. Murphy
                                                               /s/ Cynthia Diane Stephens
                                                               /s/ Mark T. Boonstra




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