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ACORN INVESTMENT CO V MICHIGAN BASIC PROPERTY INS ASSN
State: Michigan
Court: Court of Appeals
Docket No: 284234
Case Date: 09/15/2009
Preview:STATE OF MICHIGAN COURT OF APPEALS

ACORN INVESTMENT COMPANY, Plaintiff-Appellant, v MICHIGAN BASIC PROPERTY INSURANCE ASSOCIATION, Defendant-Appellee.

UNPUBLISHED September 15, 2009

No. 284234 Wayne Circuit Court LC No. 07-704138-CK

Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ. PER CURIAM. In this insurance dispute, plaintiff appeals as of right from the trial court's order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), and denying its own motion for a declaratory judgment. We affirm in part, reverse in part, and remand for further proceedings. This case involves a single-family residential dwelling in Detroit. The property was owned by plaintiff, who used it as rental property, and insured by defendant. After plaintiff's tenants moved out, the property was damaged when apparent thieves removed the water meter, copper piping, and other fixtures, which in turn led to extensive flooding. Plaintiff sought coverage under a section of the policy that provided coverage for losses resulting from vandalism. After defendant denied plaintiff's claim, plaintiff filed this action. The trial court granted defendant's motion for summary disposition. On appeal, we first consider plaintiff's claims regarding coverage for vandalism and the earth movement exclusion in the insurance policy, inasmuch as these provisions formed the basis for the trial court's decision to grant summary disposition in favor of defendant. A trial court's decision on a motion for summary disposition is reviewed de novo. White v Taylor Distributing Co, Inc, 482 Mich 136, 139; 753 NW2d 591 (2008). A motion under MCR 2.116(C)(10) tests the factual support for a claim. Healing Place at North Oakland Medical Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007). A court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties, and views that evidence in a light most favorable to the nonmoving party. Id. at 56. The motion "should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. -1-

We also review de novo issues concerning the proper interpretation of an insurance policy. Id. at 55. Insurance contracts are subject to the same principles of construction as other contracts. Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 714; 706 NW2d 426 (2005). They should be read as a whole, with the language given its ordinary and plain meaning. Id. at 715. When considering an undefined term that has not been given prior legal meaning, resort to a lay dictionary is appropriate. Citizens Ins Co v Pro-Seal Service Group, Inc, 477 Mich 75, 84; 730 NW2d 682 (2007). Summary disposition is appropriate if an insurance policy is not ambiguous. Mahnick v Bell Co, 256 Mich App 154, 159; 662 NW2d 830 (2003). "A provision in a contract is ambiguous if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning." Royal Prop Group, supra at 715. Our first task in evaluating plaintiff's insurance claim is to determine if coverage exists. Heniser v Frankenmuth Mut Ins, 449 Mich 155, 172; 534 NW2d 502 (1995). The policy here is one that is commonly referred to as a named or specific perils policy, which means that plaintiff must bring itself within the policy's express provisions, i.e., show that a named peril applies. See generally Poulton v State Farm Fire & Cas Cos, 267 Neb 569, 574; 675 NW2d 665 (2004). We agree with plaintiff that the vandalism peril applies to the loss caused by the removal of the copper pipes, water meter, and other fixtures in the basement of the property. The policy expressly provides coverage for direct physical loss caused by vandalism. Although the word "vandalism" is not defined in the policy, it is defined in Random House Webster's College Dictionary (1997), p 1419, in pertinent part, as the "deliberate destruction or damage to private or public property." Here, the evidence that someone broke off plumbing fixtures, the water meter, and water supply lines, with no way to stop the water from flowing, falls squarely within this common understanding of vandalism. The fact that the evidence showed that a theft of the removed items also occurred is not material because we have not been presented with any claim that the stolen items constitute a covered loss, but rather a claim for property damage caused by the removal of the items. Causation in an insurance case is not concerned with culpability, but rather with the nature of the injury and how it happened. Vanguard Ins Co v Clarke, 438 Mich 463, 466 n 3; 475 NW2d 48 (1991). Here, the insurance policy expressly requires that "direct physical loss" be caused by the act of vandalism. The use of the word "direct" signals "immediate" or "proximate" cause, as distinct from remote or incidental causes. de Laurentis v United Services Automobile Ass'n, 162 SW3d 714, 723 (Tex App, 2005); see also Roundabout Theatre Co v Continental Cas Co, 302 AD2d 1, 8; 751 NYS2d 4 (2002) (plain meaning of the words "direct" and "physical" preclude any off-site property damage); Random House Webster's College Dictionary (1997), p 371 (defining "direct," in pertinent part, as "without intermediary agents, conditions, etc.; immediate"). But causation does not require that vandalism be the last act in the chain of events upon which the loss is based. Cresthill Industries, Inc v Providence Washington Ins Co, 53 AD2d 488, 498-499; 385 NYS2d 797 (1976). The removal of severed fixtures from the premises does not change the essential character of a completed act of vandalism. Id. at 497. Because no genuine issue of material fact was shown with respect to whether an act of vandalism, as understood in its plain and ordinary sense, occurred in this case, the trial court -2-

erred in finding that the vandalism peril was inapplicable as a matter of law. But because the parties' evidence was not directed at or factually developed with regard to the particular items of "direct physical loss" that plaintiff sought to recover under the policy, we cannot conclude that either party was entitled to summary disposition with respect to the amount of plaintiff's covered loss. Keeping in mind this question of fact, we next consider whether the coverage for vandalism is negated by an exclusion. Heniser, supra at 172. In considering this issue, we decline to consider plaintiff's argument in its reply brief that defendant either waived the "earth movement" exclusion or should be estopped from relying on that exclusion based on Kirschner v Process Design Assoc, Inc, 459 Mich 587, 594; 592 NW2d 707 (1999). Plaintiff did not present a waiver or estoppel claim in its principal brief. "Reply briefs must be confined to rebuttal of the arguments in the appellee's or cross-appellee's brief." MCR 7.212(G). Raising an issue for the first time in a reply brief is insufficient to present the issue for appeal. Maxwell v Dep't of Environmental Quality, 264 Mich App 567, 576; 692 NW2d 68 (2004). Therefore, we limit our review to plaintiff's challenge to the trial court's determination that the earth exclusion applies. Although a court strictly construes exclusions in favor of an insured, we must "read the insurance contract as a whole to effectuate the intent of the parties and enforce clear and specific exclusions." Tenneco, Inc v Amerisure Mut Ins Co, 281 Mich App 429, 444; 761 NW2d 846 (2008). Here, the general exclusions section of the insurance policy provides, in pertinent part: We do not pay for loss if one or more of the following exclusions apply to the loss, regardless of other causes or events that contribute or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded causes or events. *** 3. Earth movement
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