                          STATE OF MICHIGAN

                             COURT OF APPEALS



PURSEY POLITE,                                                     UNPUBLISHED
                                                                   March 29, 2016
               Plaintiff-Appellee,

v                                                                  No. 325811
                                                                   Genesee Circuit Court
DANIEL TYLER, JR., and DUANE MCLEOD,                               LC No. 12-097919 - NI

               Defendants,

and

AMERICAN BANKERS INSURANCE CO.,

               Defendant/Cross Plaintiff/Cross
               Defendant,

and

FARM BUREAU MUTUAL INSURANCE CO.
OF MICHIGAN,

               Defendant/Cross Defendant/Cross
               Plaintiff-Appellant.


Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

        Defendant Farm Bureau Mutual Insurance Company of Michigan appeals as of right a
trial court order granting judgment to plaintiff. The order of conditional judgment was entered
upon stipulation by the parties after the trial court denied defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10). For the reasons set forth below, we reverse and
remand for entry of an order granting summary disposition in favor of defendant.

                                           I. FACTS

       The facts in this case are not in dispute. Plaintiff Pursey Polite was seriously injured in
an automobile accident with an uninsured motorist on May 15, 2010. Plaintiff was driving a

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1969 Cadillac that was insured by defendant American Bankers Insurance Co. (“ABIC”) in a
policy entitled “Antique Auto Coverage Endorsement.” The parties agreed that the ABIC policy
provided uninsured motorist coverage of $100,000, and that no exclusions applied.

        Plaintiff also owned a 2005 Chevrolet Impala and a 2001 Cadillac Deville, both of which
were insured by defendant. Defendant’s policy provided for $100,000 in uninsured motorist
coverage, but contained an exclusion stating that the uninsured motorist coverage did not apply
to “any person injured while occupying an auto owned by you or any family member, if the auto
is not insured for [uninsured motorist coverage] by this policy.” It is undisputed that defendant
did not insure the 1969 Cadillac. It is also undisputed that plaintiff’s damages exceeded the
amount of the insurance coverage under the ABIC policy.

         Defendant moved for summary disposition arguing that the uninsured motorist coverage
was not applicable to the accident at issue. The lower court record indicates that this motion was
not heard on the record, but instead was discussed only in chambers. Subsequently, the trial
court issued an order entitled Order Regarding Priority to Pay Uninsured Motorist Benefits, in
which the court framed the question before it as “which insurer, Farm Bureau or American
Bankers, is first in priority with respect to the obligation to provide uninsured motorist benefits
to the plaintiff.” The court held that the two policies were equal in priority, and that “any
liability based on uninsured motorist coverage shall be pro-rated between the two companies.”
The order did not specifically state that the court denied defendant’s motion for summary
disposition.

       Seven months later, defendant filed another motion for summary disposition, using the
same title as it had on the first motion. This time defendant argued that, even if uninsured
motorist coverage would otherwise apply, coverage was precluded by the relevant exclusion
clause. Before the hearing on this second motion, ABIC entered into a settlement and release
agreement with plaintiff, pursuant to which it paid plaintiff $50,000, or half of the amount it
contracted to pay for uninsured motorist coverage.

        At the hearing on defendant’s second motion for summary disposition, it became
apparent that defendant filed this motion because both parties thought the court had invited
rehearing on the first motion. The trial court, on the other hand, had apparently intended the
original order to dispose of the issues raised in defendant’s first motion for summary disposition,
although the order did not say so. The court nonetheless heard the parties’ arguments, both of
which covered the exclusion clause issue. In its oral decision, the trial court characterized
defendant’s motion as a rehearing on its original motion for summary disposition and denied the
motion because the court was “not persuaded that the original decision was in error.” The court
later entered judgment of $50,000 for plaintiff, conditioned on the preservation of the right of
appeal, and staying the execution of the judgment until all appeals were exhausted.

                                 II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition. Heath v
State Farm Mut Auto Ins Co, 255 Mich App 217, 218; 659 NW2d 698 (2002). Summary
disposition under MCR 2.116(C)(10) is proper where there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. The interpretation of a contract

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presents a question of law that we review de novo. Wilkie v Auto-Owners Ins Co, 469 Mich 41,
47-48; 664 NW2d 776 (2003).

                                         III. ANALYSIS

       As a threshold matter, plaintiff argues that defendant waived its right to argue the
exclusion clause because it is an affirmative defense and was not raised in the responsive
pleading. We disagree.

        An “affirmative defense” as one that “seeks to foreclose the plaintiff from continuing a
civil action for reasons unrelated to the plaintiff’s prima facie case” with the specified exceptions
of lack of subject matter jurisdiction and failure to state a claim. Campbell v St John Hosp, 434
Mich 608, 616; 455 NW2d 695 (1990), citing MCR 2.111(F). In short, if a defense addresses the
merits of a plaintiff’s claim, it is not an affirmative defense. Id. at 615-616. Because
defendant’s exclusion clause concerns the crux of plaintiff’s substantive case it is not an
affirmative defense and was not waived.

       Defendant argues that the trial court erred in denying its motion for summary disposition1
because the exclusion clause in the policy it issued to plaintiff is unambiguous and clearly
provides that no benefits accrue from accidents involving automobiles that were not insured
under defendant’s policy. We agree.

       Defendant’s policy insuring plaintiff’s 2005 Chevrolet Impala and a 2001 Cadillac
Deville contained the following relevant provisions:

       PART IV – UNINSURED MOTORIST COVERAGE

               A.      Insuring Agreement

              1.       If you pay a premium for Uninsured Motorist Coverage, we agree
       to pay compensatory damages which the insured is legally entitled to recover
       from the owner or operator of an uninsured automobile. The damages must result
       from bodily injury sustained by the insured caused by an accident. The owner’s
       or operator’s liability for these damages must arise from the ownership, operation,
       maintenance, or use of the uninsured automobile as an automobile.

                                               ***

               D.      Exclusions

               This coverage does not apply to:


1
 Plaintiff argues that the court’s first order “controls” because defendant’s second motion was
untimely. This argument lacks merit. The trial court had the discretion to hear and rule on late
motions under MCR 2.116(D)(4), and it exercised that discretion.


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                                             ***

                2.     any person injured while occupying an auto owned by you or any
       family member, if the auto is not insured for UMC [uninsured motorist coverage]
       by this policy; that uninsured motorist coverage does not apply to “any person
       injured while occupying an auto owned by you or any family member, if the auto
       is not insured for UMC by this policy” [Emphasis added.]

         This language is clear and unambiguous. There is no dispute that plaintiff was injured
while driving an automobile, the 1969 Cadillac, that was owned by plaintiff, but not insured for
uninsured motorist benefits under defendant’s policy. Accordingly, defendant was not liable for
any of the uninsured motorist benefits arising from the accident involving the 1969 Cadillac and
the trial court erred as a matter of law in holding otherwise.

       Reversed and remanded for entry of an order granting summary disposition in favor of
defendant. No costs awarded. MCR 7.219(A). We do not retain jurisdiction.



                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Karen M. Fort Hood
                                                           /s/ Stephen L. Borrello




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