                         STATE OF MICHIGAN

                          COURT OF APPEALS



AUTO-OWNERS INSURANCE COMPANY,                                    UNPUBLISHED
                                                                  September 17, 2015
              Plaintiff-Appellee,

v                                                                 No. 321396
                                                                  Ingham Circuit Court
INTEGON NATIONAL INSURANCE                                        LC No. 12-001203-CK
COMPANY,

              Defendant-Appellant.


Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.

PER CURIAM.

       In this case involving which insurer is the highest-priority no-fault provider, defendant
Integon National Insurance Company (Integon) appeals by right an April 21, 2014, judgment in
favor of plaintiff Auto-Owners Insurance Company against Integon. The judgment followed a
March 31, 2014, opinion and order wherein the trial court granted Auto-Owners’ motion for
summary disposition pursuant to MCR 2.116(C)(10). For the reasons set forth in this opinion,
we reverse the trial court’s judgment and remand for entry of judgment in favor of Integon.

                               I. FACTUAL BACKGROUND

       In February 2009, Laura Dunn and Terry Dunn, her husband at the time, moved from
Michigan to North Carolina. On April 9, 2009, Laura filled out an application for a North
Carolina automobile insurance policy at the Wagoner Insurance Agency (Wagoner Agency), an
independent insurance agency that wrote insurance for multiple companies including Integon.
Laura sought coverage for a 2006 Toyota Solara and a 1996 GMC Jimmy. At the time that
Laura applied for coverage, both she and her husband had Michigan drivers’ licenses, and the
Toyota was registered in Michigan, but Laura and Terry provided a residential address in Sneads
Ferry, North Carolina, and represented that the vehicles would be garaged at the North Carolina
address.

       Ultimately, Integon issued a North Carolina auto insurance policy for both vehicles. The
policy listed Laura as the “named insured” and Terry was listed as an additional driver. The
policy listed Michigan Credit Union as a “loss payee” for the Toyota and listed Michigan
resident, Jean Tremblay, as having an “additional interest,” in the vehicle. Tremblay was
Laura’s ex-husband at the time the policy was issued and because of Laura’s bad credit the

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Toyota was titled in his name despite Laura being awarded the vehicle in the divorce. The policy
was setup to renew automatically every six months upon payment of a renewal premium.

         On April 29, 2010, Laura requested that the Wagoner Agency change her address from
the Sneads Ferry residence to a residence in N. Topsail Beach, North Carolina. Tracy Iovanna, a
personal friend of Laura’s and a licensed insurance agent who worked for the Wagoner Agency
at the time, testified that the garaging location of the vehicles was critical in determining whether
to issue a North Carolina policy. Iovanna handled some of the transactions related to Laura’s
policy.

        From February 2009 through August 2011, Laura and Terry lived in North Carolina. In
September 2011, Laura and Terry moved back to Whitmore Lake, Michigan and lived with
Terry’s parents, Doyal and Ella Dunn. Doyal and Ella had a Michigan no-fault insurance policy
issued by Auto-Owners. Laura and Terry’s Integon policy expired on October 9, 2011 due to
their non-payment of the renewal premium; however, the policy was renewed on October 23,
2011, after Laura and Terry submitted a late renewal payment to the Wagoner Agency.

        On November 19, 2011, Laura and Terry were involved in a motor vehicle accident in
Brighton, Michigan while Laura was driving the Toyota. Terry suffered catastrophic injuries.
Neither party disputes that both the Integon and the Auto-Owners policies were in effect at the
time of the accident.

       Following the accident, Integon refused to pay PIP benefits to Terry because it
maintained that the North Carolina policy did not provide PIP benefits and Integon was not
required to comply with the Michigan no-fault act because it had no knowledge that Laura and
Terry relocated to Michigan. Auto-Owners then paid PIP benefits to Terry under his parent’s
policy because he was a family member of the insureds.

       On December 4, 2012, Auto-Owners commenced this declaratory action, alleging that
Integon knew or had reason to know that Laura and Terry were moving to Michigan, but
nonetheless renewed their North Carolina policy and that, as a result, Integon was required to
reimburse Auto-Owners for the PIP benefits that it paid to Terry under MCL 300.3012.

       During discovery, Iovanna testified at a deposition that, in addition to knowing Laura
through her capacity as an insurance agent at the Wagoner Agency, she had a “side relationship,”
with Laura. Iovanna testified that she learned that Laura and Terry were considering returning to
Michigan as follows:

               Q. Did it ever come to the attention of Wagoner or to you individually
       that the Dunns, either Mr. or Mrs., had moved away from North Carolina?

               A. I knew because I had a personal or side relationship with Laura. I
       knew that she was going to try to look for a job, just in talking to her. She had
       taken some leave from where she worked and she was going to go see if she could
       find a job.

               Q. When was that? Do you recall?


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              A. I’m going to try not to get emotional, but my husband had passed away
       the same week she -- that she stopped by my house. And -- I’m sorry

                                               ***

              A. [] [H]e passed away unexpectedly on September 7th, and I think she
       came by that night to tell me that she had heard. I had a houseful of people. And
       she said that -- I think that Terry had to find a job. He might have already been
       gone ahead of her.

              But she was going to Michigan -- she didn’t know what was going to
       happen -- to see if she could find a job. But I don’t think she had moved -- you
       know, I’m pretty sure that she hadn’t moved or anything. She was going to go
       look for a job.

                                               ***

              Q. I understand. But your recollection is that Mr. Dunn had already gone
       back to Michigan to look for work or had already gone ahead of her; is that ---

               A. [] That’s what I think. [Emphasis added.]

Iovanna also testified that “I did go out to the bank, and I think I seen her there. She was still at
the bank and still trying to get her stuff together to go look for a job . . . [in] Michigan.”

         In addition, Iovanna and Sharon Dowell, an employee of Integon, each submitted
affidavits attesting that Integon sent numerous “coupons” to Laura and Terry at their North
Carolina address that requested renewal payments and provided a space to inform Integon if they
had changed addresses. The coupons were submitted as exhibits to the affidavits. Dowell
testified at a deposition that she had no information as to whether Laura or Terry had established
residency outside of North Carolina. Dowell also testified that when the policy was renewed on
October 17, 2011, Laura and Terry did not make any indication regarding a changed address.
Dowell testified that in December 2011, after the accident, Laura canceled the policy because of
a move to Michigan.

         Auto-Owners moved for summary disposition pursuant to MCR 2.116(C)(10), arguing
that Integon’s North Carolina policy provided Michigan no-fault coverage, in part, because
Integon’s agent, Iovanna, had knowledge that Laura and Terry were relocating to Michigan.
Auto-Owners also argued that Integon was the first-priority insurer because Terry was a named
insured on the Integon policy. Integon filed a counter-motion for summary disposition arguing
that Iovanna’s knowledge should not be imputed to Integon and that there were no facts to show
that it knew or should have known that Laura and Terry relocated to Michigan.

        The trial court granted summary disposition in favor of Auto-Owners, reasoning that
Integon should have known that Laura and Terry were taking up residency in Michigan. The
court explained:



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               Here, Integon should have known that Laura and Terry Dunn were taking
       up residency in Michigan during the renewal period. Laura Dunn personally
       informed Iovanna that she and Terry Dunn were going to Michigan for an
       indefinite period of time to seek employment. This Court finds that seeking
       employment, in addition to the knowledge that Laura and Terry Dunn were
       licensed to drive in Michigan and had connections to Michigan, is sufficient to
       establish that Integon should have known that Laura and Terry Dunn were taking
       up residency in Michigan during the renewal period beginning on October 9,
       2011.

        The trial court also rejected Integon’s argument that Iovanna’s knowledge should not be
imputed to Integon because, under Michigan law, “an independent insurance agent is an agent of
the insured and not the insurer.” Instead, the trial court agreed with Auto-Owners’ argument that
North Carolina agency law applied, and that under North Carolina law, NC Gen Stat § 58-33-20,
an independent insurance agent is an agent of the insurer not the insured. The court reasoned as
follows:

              Both the Dunns and Integon would have expected North Carolina law to
       be applicable based on the fact that the contract was negotiated and executed in
       North Carolina. The interests of North Carolina also outweigh those of Michigan
       because North Carolina has a greater interest in seeing its agency laws applied
       where the agency relationship and interactions with the Dunns occurred in North
       Carolina.

        Finally, for purposes of first-priority, the trial court concluded that Terry was a named
insured under the Integon policy reasoning that Terry “falls within the definition of ‘you,’
thereby making him a party to the contract for insurance.” As a named insured under the Integon
policy, the trial court concluded that Integon was the first-priority insurer for Terry under MCL
500.3114. The trial court entered a judgment in favor of Auto-Owners on April 21, 2014. This
appeal ensured.

                                II. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “A motion under MCR 2.116(C)(10)
tests the factual sufficiency of the complaint.” Id. at 120. “Summary disposition is appropriate
under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183;
665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers
the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the
light most favorable to the nonmoving party to determine whether any genuine issue of material
fact exists to warrant a trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which reasonable minds might differ.” West,
469 Mich at 183.

                                        III. ANALYSIS

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        Integon argues that Terry does not have a statutory or contractual right to claim no-fault
benefits under the North Carolina policy because Integon was not aware of Terry’s move to
Michigan, and thus, it did not purport to provide insurance coverage to Michigan residents. The
trial court held that Integon was required to pay no-fault benefits under MCL 500.3012, which
provides in relevant part as follows:

               Such a liability insurance policy issued in violation of sections 3004
       through 3012 [of the no-fault act] shall, nevertheless, be held valid but be deemed
       to include the provisions required by such sections, and when any provision in
       such policy or rider is in conflict with the provisions required to be contained by
       such sections, the rights, duties and obligations of the insured, the policyholder
       and the injured person shall be governed by the provisions of such sections.

        In Farm Bureau Ins Co v Allstate Ins Co, 233 Mich App 38, 41; 592 NW2d 395 (1998)
this Court explained that, “it is evident that the basic purpose of [MCL 500.3012] is to treat an
insurance policy that an insurer issues purporting to be a Michigan policy that complies with
Michigan law as such even if the written terms of the policy are inconsistent with Michigan law”
(emphasis in original). However, an out-of-state insurer is not required to provide Michigan no-
fault coverage if the policy is issued to a person “who provides no indication to the insurer of
being a Michigan resident.” Id. at 42-43. If the out-of-state insurer does not know and has no
reason to know it is dealing with a Michigan resident, its policy will not be construed to contain
the missing provisions of the no-fault act. See id. at 41-44.

        In Farm Bureau, Allstate issued an Indiana automobile insurance policy to a person who
used an Indiana address, although she was a domiciliary of Michigan. Id. at 40. This Court held
that Allstate was not required to provide no-fault benefits under the policy pursuant to MCL
500.3012 because “Allstate could not reasonably have been expected to have known when the
policy was issued that its insured was actually a Michigan residence.” Id. at 43. The court noted
that the insured used an Indiana address in connection with the transaction and there was no
other evidence “from which one may reasonably determine that Allstate should have known that
she was a Michigan resident.” Id. at 41.

        In this case, the trial court concluded that Integon knew that Laura and Terry relocated to
Michigan because it imputed the knowledge that its agent Iovanna had about the relocation. This
amounted to legal error. First, to determine that Iovanna knew about the relocation based on her
deposition testimony, which was somewhat ambiguous, required the trial court to weigh
credibility and make factual determinations, which is inappropriate at the summary disposition
stage. See Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994) (a trial court may
not make factual findings or weigh credibility in deciding a motion for summary disposition).
Second, irrespective of whether Iovanna knew that Laura and Terry relocated to Michigan,
because Iovanna did not acquire that knowledge while acting within the scope of her agency
relationship with Integon, her knowledge could not be imputed to Integon. Specifically, this
Court has explained the doctrine of imputed knowledge as follows:

               The doctrine of imputed knowledge generally provides:



                                                -5-
                  When a person representing a corporation is doing a thing which is in
          connection with and pertinent to that part of the corporation business which he is
          employed, or authorized or selected to do, then that which is learned or done by
          that person pursuant thereto is in the knowledge of the corporation. The
          knowledge possessed by a corporation about a particular thing is the sum total of
          all the knowledge which its officers and agents, who are authorized and charged
          with the doing of the particular thing[,] [acquire] while acting under and within
          the scope of their authority. [New Properties, Inc v George D Newpower, Jr.,
          Inc., 282 Mich App 120, 134; 762 NW2d 178 (2009) (quotation marks and
          footnotes omitted) (emphasis added).]

         Here, even assuming as the trial court did that Iovanna was an agent of Integon as
opposed to an agent of the insured,1 Iovanna did not acquire any knowledge about Laura and
Terry’s possible relocation to Michigan while she was “acting under and within the scope of
[her] authority” as a licensed insurance agent of Integon. Id. Iovanna testified that she had a
“side relationship,” with Laura and it was during the course of this “side relationship” that
Iovanna acquired her knowledge about Laura and Terry’s potential relocation to Michigan.
Specifically, Iovanna testified that Laura stopped by her residence one evening apparently in
September 2011, shortly after Iovanna’s spouse passed away. According to Iovanna, it was
during this personal visit that Laura first mentioned looking for a job in Michigan. Iovanna also
testified that she later visited the bank where Laura worked one day and Laura again referenced
looking for a job in Michigan. Thus, Iovanna did not acquire the requisite knowledge of Laura
and Terry’s potential move when she was “doing a thing which is in connection with and
pertinent to that part of the corporation business which [she was] employed, or authorized or
selected to do. . . .” Id. Because Auto-Owners failed to present any other evidence to show that
Iovanna acquired knowledge about the potential relocation while she was acting within the scope
of her agency relationship with Integon, the trial court erred as a matter of law in imputing her
knowledge to Integon. Id.

        Aside, from Iovanna’s private conversations with Laura, there was no evidence to support
that Integon knew or reasonably should have known that Laura and Terry relocated to Michigan
during the time that the North Carolina policy was in effect. Evidence that the Toyota was
registered in Michigan and evidence that both drivers had Michigan drivers licenses showed that
Laura and Terry had connections to Michigan. However, in applying for the insurance policy,
Laura and Terry represented that the vehicles would be garaged in North Carolina, they provided
a North Carolina residential address, and then revised that address when they moved to another
locality in North Carolina. Laura and Terry continually renewed, albeit belatedly, the policy
from April 2009 through October 2011 without indicating to the Wagoner Agency or Integon
that they had relocated to Michigan or that the vehicles were garaged anywhere other than North
Carolina. See Hammoud v Metropolitan Prop & Cas Ins Co, 222 Mich App 485, 489; 563
NW2d 716 (1997) (“an insurer does not owe a duty to the insured to investigate or verify that
individual’s representations or to discover intentional material misrepresentations.”).


1
    We make no determination regarding whether the trial court erred in its choice of law analysis.


                                                 -6-
        Iovanna and Dowell both testified that Integon sent payment coupons to Laura and
Terry’s North Carolina address that contained spaces to inform the company that they had
changed addresses. However, there was no evidence to show that Laura and Terry ever filled out
one of the coupons or otherwise informed the Wagoner Agency or Integon that they had
relocated to Michigan. Instead, Laura and Terry renewed their North Carolina policy in October
2011, by paying the renewal premium and in doing so they did not update their address. On this
record, based on the representations Laura and Terry made to the Wagoner Agency and Integon,
there was no issue of fact to support that Integon could “reasonable have been expected to have
known [] that its insured” relocated to Michigan at any time when the policy was in effect or
when it renewed in October 2011. Farm Bureau, 233 Mich App at 43. Accordingly, the trial
court erred in denying Integon’s counter-motion for summary disposition pursuant to MCR
2.116(I)(2).2

        In sum, the trial court erred as a matter of law in imputing Iovanna’s knowledge to
Integon and there were no other facts to support that Integon reasonably should have known that
its insureds were residents of Michigan at the time the North Carolina policy was issued,
renewed, or at any time that it was in effect. Accordingly, Integon was not required to provide
no-fault benefits under MCL 500.3012 and the trial court erred in granting Auto-Owners’ motion
for summary disposition and in denying Integon’s counter-motion for summary disposition.

        Reversed and remanded for entry of judgment in favor of defendant. Defendant having
prevailed, may tax costs. MCR 7.219(A). We do not retain jurisdiction.



                                                            /s/ Stephen L. Borrello
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Peter D. O’Connell




2
  Given our resolution of this issue, we need not address whether the trial court erred in holding
that Terry Dunn was a “named insured” under the North Carolina policy.


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