                           STATE OF MICHIGAN

                           COURT OF APPEALS



JODI PERRY,                                                      UNPUBLISHED
                                                                 February 28, 2017
              Plaintiff-Appellee,

v                                                                No. 330966
                                                                 Kalamazoo Circuit Court
ROBERT J. PERRY,                                                 LC No. 2015-000263-NI

              Defendant,

PROGRESSIVE MARATHON INSURANCE
COMPANY,

              Defendant-Appellant.


Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant Progressive Marathon Insurance Company (Progressive) appeals by leave
granted a November 17, 2015, trial court order denying its motion for summary disposition. For
the reasons set forth in this opinion, we reverse and remand for entry of an order granting
summary disposition in favor of Progressive.

                                         I. FACTS

        On June 20, 2013, plaintiff was a passenger in a Honda Pilot owned and driven by
defendant Robert Perry, her husband. Robert Perry rear-ended another vehicle that day and
plaintiff suffered injuries. The Pilot was insured by Progressive. Robert Perry was a named
insured and plaintiff was listed as a driver or household resident on the policy. The policy
included coverage for “Uninsured/Underinsured Motorist” in the amount of “$250,000 each
person/$500,000 each accident.” The policy included the following relevant provisions:

       PART III – UNINSURED/UNDERINSURED MOTORIST COVERAGE

       INSURING AGREEMENT

       If you pay the premium for this coverage, we will pay for damages that an
       insured person is legally entitled to recover from the owner or operator of an
       uninsured motor vehicle because of bodily injury:

                                             -1-
1. sustained by an insured person;

2. caused by an accident; and

3. arising out of the ownership, maintenance, or use of an uninsured motor
vehicle.

We will pay under this Part III only after the limits of liability under all applicable
bodily injury liability bonds and policies have been exhausted by payment of
judgments or settlements.

Any judgment or settlement for damages against an owner or operator of an
uninsured motor vehicle that arises out of a lawsuit brought without our written
consent is not binding on us.

ADDITIONAL DEFINITIONS

When used in this Part III:

1. “Insured person” means:

       a. you or a relative;

        b. any person while operating a covered auto with the permission of you
or a relative

       c. any person occupying, but not operating, a covered auto; and

       d. any person who is entitled to recover damages covered by this Part III
because of bodily injury sustained by a person described in a, b, or c above.

2. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:

        a. to which no bodily injury liability bond or policy applies at the time of
the accident.

                                        ***

       e. to which a bodily injury liability bond or policy applies at the time of
the accident, but the sum of all applicable limits of liability for bodily injury is
less than the coverage limit for Uninsured/Underinsured Motorist Coverage
shown on the declarations page.

An “uninsured motor vehicle” does not include any vehicle or equipment:

a. owned by you or a relative or furnished or available for the regular use of you
or a relative.

                                        ***

                                         -2-
       g. that is a covered auto.

       The policy defined the term “you” and “your” as:

       a. a person shown as a named insured on the declarations page; and

       b. the spouse of a named insured if residing in the same household at the time of
       the loss.

        On June 15, 2015, plaintiff commenced this lawsuit alleging that her husband was
negligent and that the negligence caused her to suffer a serious impairment of bodily function.
Plaintiff alleged that Robert Perry was an “underinsured” motorist for purposes of the insurance
policy and that she was therefore entitled to recover “uninsured/underinsured” benefits under the
policy.

        Progressive moved for summary disposition, arguing that the underinsured motorist
coverage did not apply because the policy’s definition of “underinsured motor vehicle” was
included in the policy’s definition of “uninsured motor vehicle,” which did not apply to any
vehicle owned, furnished, or available to plaintiff and defendant. Progressive also argued that
the definition of “uninsured motor vehicle” did not include a “covered automobile,” under the
policy.

        Plaintiff responded, arguing that she was not limited to the $20,000 of liability limits to
her husband Robert, but instead could recover under the $250,000 underinsured motorist
coverage clause. Plaintiff argued that the policy defined “uninsured vehicle,” but that definition
did not incorporate “underinsured vehicle.” The policy did not define “underinsured,” and,
therefore, the exclusions relied on by Progressive did not apply to plaintiff. Instead, uninsured
and underinsured coverage was separate and plaintiff was entitled to coverage because the Pilot
was an underinsured motor vehicle. Plaintiff argued that the policy was ambiguous as to the
meaning of “underinsured motor vehicle,” and that the ambiguity should be construed against
Progressive.

       The trial court held a hearing. At the hearing, Progressive argued that underinsured
motorist coverage does not apply when “the person who is allegedly at fault happens to be
occupying or operating an owned vehicle or a covered vehicle.” Progressive argued that the
policy’s definition of “uninsured motor vehicle” incorporated “underinsured motor vehicle,” and
therefore all of the same exclusions applied—i.e. namely that uninsured/underinsured did not
apply to covered individuals and covered vehicles. Progressive argued that while the policy only
defined “uninsured motor vehicle,” when the policy was read as a whole, that definition also
applied to “underinsured motor vehicle.” Progressive noted that throughout the policy,
uninsured/underinsured coverage was referenced together and, therefore, the meaning of the
terms must be interpreted in the same manner. Progressive cited language in the policy that
provided that an “uninsured motor vehicle” “does not include any vehicle or equipment” “owned
by you or a relative or furnished or available for regular use of you or a relative” or “that is a
covered auto” (emphasis removed). Therefore, because plaintiff “was occupying a vehicle that
was both owned by her and it was . . . [a] covered auto under the policy,” “[t]his is the exact



                                                -3-
scenario that every insurer in the State of Michigan does not agree to provide coverage for under
UM and UIM.”

              After hearing arguments the trial court held as follows:

               This case boils down to a contract that is written in such a way as to
       clearly define circumstances involving uninsured motorist with a dispute as to
       whether those provisions have been included extended to cover underinsured
       motorist.

               There is not argument that the Plaintiff was an insured person or that the
       vehicle was a covered vehicle. The only issue in this case is whether the
       definition provided in the policy clearly and unambiguously excludes or includes
       both uninsured and underinsured vehicles.

               I believe that it does clearly exclude coverage for uninsured motor vehicle
       - - motor vehicles as it cited by the parties.

               Underinsured vehicle is not specifically defined in the definition section.
       The closest the parties come is reference to underinsured/uninsured motorist
       coverage which specifically advises what those amounts would be and what
       injuries are, in fact, covered.

              The question becomes, if underinsured means something different than
       uninsured as far as the policy is concerned, then section 2e clearly would provide
       exclusion as relates to the covered vehicle in this matter.

                                              ***

               I cannot say that conclusively there is language in this contract that
       specifically covers an underinsured motor vehicle. For that reason, the exclusions
       that are set forth in paragraph two which applied to uninsured motor vehicles
       would not automatically cover underinsured motor vehicle.

              The Court believes that language is not clear enough to merit granting of
       summary disposition in favor of Progressive, however, by the same token, the
       Court does not believe it is so clearly no covering underinsured as to justify
       granting motion to the Plaintiff under (I)(2).

       The trial court entered a written order on November 17, 2015, and denied Progressive’s
motion for reconsideration. Progressive then moved for leave to appeal and on April 25, 2016,
this Court granted Progressive leave to appeal. Perry v Perry, unpublished order of the Court of
Appeals, entered April 25, 2016 (Docket No. 330966).

                                        II. ANALYSIS




                                               -4-
        Progressive argues that the trial court erred in denying its motion for summary
disposition because, when read as a whole, plaintiff is excluded from recovering “underinsured”
motorist benefits.

        Progressive moved for summary disposition based on both MCR 2.116(C)(8) and
(C)(10); however, because the trial court considered documentary evidence beyond the
pleadings—i.e. the insurance policy, we review the order as having been decided under MCR
2.116(C)(10). Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519
(2012). We review de novo a trial court’s decision whether to grant a motion for summary
disposition. Dalley v Dykema Gossett, PLLC, 287 Mich App 296, 304; 788 NW2d 679 (2010).
“In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence submitted by
the parties in a light most favorable to the nonmoving party to determine whether there is a
genuine issue regarding any material fact.” Cuddington, 298 Mich App at 270.

        This case requires that we interpret the applicable provisions of the insurance contract; a
circuit court’s interpretation of an insurance contract is reviewed de novo. Wilkie v Auto-Owners
Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). “[I]n reviewing an insurance policy dispute
[courts] must look to the language of the insurance policy and interpret the terms therein in
accordance with Michigan’s well-established principles of contract construction.” Henderson v
State Farm Fire & Cas Co, 460 Mich 348, 353-354; 596 NW2d 190 (1999). “First, an insurance
contract must be enforced in accordance with its terms.” Id. at 354. “The language of insurance
contracts should be read as a whole and must be construed to give effect to every word, clause,
and phrase.” McGrath v Allstate Ins Co, 290 Mich App 434, 439; 802 NW2d 619 (2010).

        In this case, the issue is whether plaintiff is entitled to recover “underinsured” motorist
benefits under the policy. Because underinsured motorist coverage is not required by Michigan
statute, “the scope, coverage, and limitations of underinsurance protection are governed by the
insurance contract and the law pertaining to contract.” Mate v Wolverine Mut Ins Co, 233 Mich
App 14, 19; 592 NW2d 379 (1998). Here, the Declarations Page provides coverage for
“Uninsured/Underinsured Motorist” in the amount of “$250,000 each person/$500,000 each
accident.” The policy includes “Part III – Uninsured/Underinsured Motorist Coverage,” and
provides definitions relevant to this form of coverage. Part III contains an “Insuring
Agreement,” that provides as follows:

       INSURING AGREEMENT

       If you pay the premium for this coverage, we will pay for damages that an
       insured person is legally entitled to recover from the owner or operator of an
       uninsured motor vehicle because of bodily injury:

       1. sustained by an insured person;

       2. caused by an accident; and

       3. arising out of the ownership, maintenance, or use of an uninsured motor
       vehicle.



                                                -5-
        We will pay under this Part III only after the limits of liability under all applicable
        bodily injury liability bonds and policies have been exhausted by payment of
        judgments or settlements.

        Any judgment or settlement for damages against an owner or operator of an
        uninsured motor vehicle that arises out of a lawsuit brought without our written
        consent is not binding on us.

        Included within Part III, the policy sets for the following “Additional Definitions:”

        When used in this Part III:

        2. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:

                a. to which no bodily injury liability bond or policy applies at the time of
        the accident;

                                                  ***

               e. to which a bodily injury liability bond or policy applies at the time of
        the accident, but the sum of all applicable limits of liability for bodily injury is
        less than the coverage limit for Uninsured/Underinsured Motorist Coverage
        shown on the declarations page.

         Reading the policy as a whole indicates that the phrase “uninsured motor vehicle” is
inclusive of the phrase “underinsured motor vehicle,” and that the exclusions that apply to
uninsured motor vehicles also apply to underinsured motor vehicles. Specifically, Part III
Section 2e defines “Uninsured motor vehicle” to include a motor vehicle “to which bodily injury
liability . . . applies at the time of the accident, but the sum of all applicable limits of liability for
bodily injury is less than the coverage limit for Uninsured/Underinsured Motorist Coverage
shown on the declarations page” (emphasis added). This is a clear reference to underinsured
motor vehicles. In other words, the term “uninsured motor vehicle,” incorporates the term
“underinsured motor vehicle.” Paragraph 2e clearly references an underinsured motor vehicle—
i.e. the paragraph references vehicles that have liability coverage that is less than the
“uninsured/underinsured” coverage listed on the Declarations Page. This reading of the policy is
further supported by the fact that the term “uninsured/underinsured” is used in several pertinent
parts of the policy including the declarations page, the table of contents and the heading of Part
III, the part in which the definition at issue is found. Thus, the mere fact that “underinsured
motor vehicle” does not have its own separate definition does not create an ambiguity where that
term is incorporated into the policy’s definition of “uninsured motor vehicle,” and the trial court
erred in concluding otherwise.

       Having determined that underinsured is incorporated into the definition of uninsured, we
now proceed to determine whether the exclusions preclude plaintiff from recovering
uninsured/underinsured motorist benefits. The relevant provisions in the policy provide:

        An “uninsured motor vehicle” does not include any vehicle or equipment:


                                                   -6-
       a. owned by you or a relative or furnished or available for the regular use of you
       or a relative.

                                              ***

       g. that is a covered auto.

      Thus, taking into account the policy’s definition of “you” and “your,”1 under the policy,
an uninsured motor vehicle—which includes an underinsured motor vehicle as discussed
above—does not include:

       (1) any vehicle owned by persons who are a named insured, spouses of named
       insureds that live in the same household, or relatives of named insureds who have
       access to regular use of the motor vehicle owned by a named insured.

       (2) a motor vehicle that is a “covered auto.”

       Here, it is undisputed that the Pilot was a covered auto at the time of the accident;
therefore, the Pilot could not constitute an “underinsured motor vehicle” for purposes of
uninsured/underinsured motorist coverage. Moreover, plaintiff was the spouse of and resided
with a named insured who owned the Pilot; therefore, the Pilot could not be considered an
uninsured/underinsured motor vehicle for purposes of the policy. In short, under the plain
language of the policy, plaintiff was not entitled to recover underinsured motorist benefits.

       Plaintiff cites Progressive’s website and references an affidavit from a purported expert
on no-fault insurance to argue that “uninsured” and “underinsured” motorist coverage constitute
separate coverage with separate definitions. However, the expert’s opinion and language on the
website are irrelevant because our focus is limited to a review of the plain language of the
insurance policy. Henderson, 460 Mich at 353-354. As discussed above, the language in Part III
defines “uninsured motor vehicle” to incorporate “underinsured motor vehicle,” and that
language governs the outcome of this appeal. Id.

       Plaintiff also appears to argue that Part III’s “Insuring Agreement” makes no mention of
exclusions and, therefore, at minimum, there is an ambiguity that must be submitted to the trier
of fact. Plaintiff is correct that Part III’s “Insuring Agreement” makes no reference to
exclusions; however, the insurance policy must be read as a whole. McGrath, 290 Mich App at
439. Here, Part III incorporates exclusions that clearly bar named insureds and covered
automobiles from uninsured/underinsured motorist coverage. Therefore, when read as a whole,
the policy clearly provides benefits, then excludes those benefits under certain circumstances
such as the case at bar. Accordingly, there is no ambiguity and the trial court erred in holding
otherwise.



1
  The policy defines “you” and “your” to include named insureds and “the spouse of a named
insured if residing in the same household at the time of the loss.”


                                               -7-
       In sum, under the plain terms of the policy, plaintiff was not entitled to recover
uninsured/underinsured motor vehicle benefits. Therefore, the trial court erred in denying
Progressive’s motion for summary disposition and we reverse and remand for entry of an order
awarding summary disposition in favor of Progressive.

        Reversed and remanded.    No costs awarded.    MCR 7.219(A).      We do not retain
jurisdiction.



                                                        /s/ Stephen L. Borrello
                                                        /s/ Jane E. Markey
                                                        /s/ Michael J. Kelly




                                            -8-
