Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  June 8, 2018                                                                       Stephen J. Markman,
                                                                                                Chief Justice

  156669                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  MICHELLE WAGNER and JAMES WAGNER,                                                 Elizabeth T. Clement,
           Plaintiffs-Appellees,                                                                     Justices

  v                                                       SC: 156669
                                                          COA: 332400
                                                          Kalamazoo CC:
  FARM BUREAU MUTUAL INSURANCE                            2014-000452-CK
  COMPANY OF MICHIGAN,
           Defendant-Appellant,
  and
  CONOR LEWIS and GREG LEWIS,
           Defendants.

  _________________________________________/

        On order of the Court, the application for leave to appeal the September 12, 2017
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

         MARKMAN, C.J. (dissenting).

         I respectfully dissent. I would grant leave to appeal to consider whether the Court
  of Appeals correctly determined that the insurance contract at issue “irreconcilably
  conflicted” regarding the amount of time plaintiff had to file suit for uninsured motorist
  (UM) benefits.

          On May 17, 2010, plaintiff was injured in an automobile accident when her car
  was struck from behind by a vehicle driven by Conor Lewis. On May 2, 2013, plaintiff
  filed suit against Lewis for negligence. While that suit was pending, Lewis’s insurer—
  defendant—filed a declaratory judgment action seeking a ruling that it had no duty to
  reimburse Lewis in the negligence action because of a policy exclusion, and on June 23,
  2014, summary disposition was granted in defendant’s favor. On August 20, 2014,
  plaintiff filed the instant suit against Farm Bureau (also her insurer) seeking UM benefits
  under her policy. Farm Bureau moved for summary disposition, arguing that plaintiff’s
  suit was untimely because it was filed more than three years after the date of the accident.
  The trial court denied this motion, and the Court of Appeals affirmed. Wagner v Farm
  Bureau Mut Ins Co of Mich, 321 Mich App 251 (2017).

         The issue here is whether plaintiff’s suit for UM benefits is barred by the
  contractual period of limitations. As this Court has explained:
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             Uninsured motorist insurance permits an injured motorist to obtain
       coverage from his or her own insurance company to the extent that a third-
       party claim would be permitted against the uninsured at-fault driver.
       Uninsured motorist coverage is optional; it is not compulsory coverage
       mandated by the no-fault act. Accordingly, the rights and limitations of
       such coverage are purely contractual and are construed without reference to
       the no-fault act. [Rory v Continental Ins Co, 473 Mich 457, 465-466
       (2005) (citations omitted).]

An unambiguous contractual provision must be enforced “as written unless the provision
would violate law or public policy.” Id. at 470. A contractual term is only “ambiguous”
if the contract is “equally susceptible to more than a single meaning,” Barton-Spencer v
Farm Bureau Life Ins Co of Mich, 500 Mich 32, 40 (2017) (emphasis added), or if two
provisions of the contract “irreconcilably conflict with each other,” Klapp v United Ins
Group Agency, Inc, 468 Mich 459, 467 (2003) (emphasis added). “[A] finding of
ambiguity is to be reached only after ‘all other conventional means of [ ] interpretation’
have been applied and found wanting.” Mayor of the City of Lansing v Pub Serv Comm,
470 Mich 154, 165 (2004), quoting Klapp, 468 Mich at 474.

       The contract at issue specifically addresses the amount of time plaintiff has to
bring suit against Farm Bureau seeking UM benefits:

              3. Time Limitation for Action Against Us

              Any person seeking Uninsured Motorist Coverage must:

               a. present the claim for compensatory damages in compliance with
       all the Duties After an Accident or Loss listed on page 4 of this policy and
       all other terms and conditions of this coverage and policy; and

             b. present to us a written notice of the claim for Uninsured Motorist
       Coverage within three years after the accident occurs.

              A suit against us for Uninsured Motorist Coverage may not be
       commenced later than three years after the accident that caused the
       injuries being claimed. [Emphasis added.]

This provision (the “three-year filing limitation”) clearly prohibits plaintiff from filing a
suit seeking UM benefits “later than three years after the accident that caused the injuries
being claimed.” However, the Court of Appeals concluded that the contract was
“ambiguous” on this point because other provisions “irreconcilably conflicted.”
Specifically, the court noted that the contract defines an “uninsured automobile” as:
                                                                                         3

             a. an auto operated on a public highway:

             (1) to which no bodily injury liability policy or bond applies:

             (a) at the time of accident; and

            (b) in at least the minimum amounts required by the Financial
      Responsibility Laws in the State of Michigan; [or]

                                          * * *

              (3) insured by a company that has issued a written denial of
      coverage that has been sustained by final court action, or to which we agree
      in writing[.]

The Court of Appeals held that plaintiff could not have sustained a claim for UM benefits
within three years after the accident, as Lewis’s vehicle was not an “uninsured
automobile” until the declaratory judgment was entered against Lewis more than three
years after the accident, and therefore that the contract’s definition of “uninsured
automobile” “irreconcilably conflicted” with the three-year filing limitation, rendering
the contract “ambiguous” regarding when such a suit must be maintained.

       I question this conclusion. These provisions seemingly address two separate
requirements: (a) when a claim must be brought; and (b) what must be shown to obtain
benefits. That plaintiff must show that the other vehicle was uninsured to recover UM
benefits does not necessarily affect the amount of time she has to bring suit. Rather, it
may be that plaintiff simply bore the burden, by whatever means available, to establish
the predicate for her UM claim within three years after the accident occurred. Thus, I do
not see how these two provisions “irreconcilably conflict.”

      The Court of Appeals also reasoned that its finding of ambiguity was supported by
an additional contractual provision providing:

             Failure to perform any duty or to give any notice required does not
      invalidate [plaintiff’s] claim if [plaintiff] show[s] that it was not reasonably
      possible to perform such duty or give such notice promptly or within such
      time otherwise specified in this policy, and that [plaintiff] performed the
      duty or submitted the notice as soon as reasonably possible.

The Court of Appeals explained that this provision (the “reasonably possible” provision)
created an “ambiguity” regarding “whether the UM filing limitations could be tolled.”
Wagner, 321 Mich App at 261.
                                                                                                                4


        Implicit in the court’s reasoning is its premise that the “reasonably possible”
provision applies to the three-year filing limitation. However, I question whether this
limitation can reasonably be characterized as setting forth a “duty” that a claimant is
“required” to perform under the contract that is subject to the reasonably possible
provision. Rather, the provision is written in the form of a prohibition, (“A suit against
us for Uninsured Motorist Coverage may not be commenced later than three years after
the accident that caused the injuries being claimed”), rather than as an affirmative “duty”
that one is “required” to perform in order to recover. (Emphasis added.) Accordingly, I
believe there is a reasonable argument that the “reasonably possible” provision is not
applicable to the filing limitation at all.

        Even assuming that the “reasonably possible” provision does apply to the three-
year filing limitation, I question whether it conflicts with the filing limitation. The filing
limitation could be read as the general requirement while the “reasonably possible”
provision could be read as excusing a “failure to perform” in a timely matter. In other
words, these provisions could possibly be harmonized such that a claimant must bring
suit within three years after the accident occurred unless it was not “reasonably possible
to perform such duty . . . within such time otherwise specified in this policy . . . .” Thus,
I am not certain that the “reasonably possible” provision and the limitation are in
irreconcilable conflict.

        A genuine “ambiguity” is rare because “a diligent application of the rules of
interpretation will normally yield a ‘better,’ albeit perhaps imperfect, interpretation of
the” contract at issue. Mayor, 470 Mich at 166. Because I am not yet persuaded that this
is one of those rare cases involving an ambiguous contractual term in which there is an
“irreconcilable conflict,” I would grant leave to appeal to ascertain whether the Court of
Appeals should have resolved the motion for summary disposition on the basis of the
actual language of the contract rather than remanding for further factual development in
light of its findings of “ambiguity.”

       ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.




                          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.
                          June 8, 2018
       a0605
                                                                              Clerk
