RICHARD ALAN ENSLEN, Judge
This matter is before the Court on Defendant's Motion for Summary Judgment and on Plaintiff/Counter-Defendant Joy Kline's Motion for Partial Summary Judgment. The Court will grant in part Defendant's Motion and will deny Plaintiff's Motion. The Court will also order further briefing.
I. Standard of Review and Applicable Federal Rules
Motions for summary judgment are brought pursuant to Federal Rule of Civil Procedure 56. Under the language of Rule 56(c), summary judgment is proper if' the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The burden then shifts to the non-movant to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could find there to be a genuine fact issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). If, after adequate time for discovery on material matters at issue, the non-movant fails to make a showing sufficient to establish the existence of a material disputed fact, summary judgment is appropriate. Celotex Corp., 477 U.S. at 323.
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences are jury functions. Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Celotex Corp., 477 U.S. at 323 (quoting Anderson, 477 U.S. at 255). The factual record presented must be interpreted in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Rule 56 limits the materials the Court may consider in deciding a motion under the rule: "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:
[A]ffidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
Fed.R.Civ.P. 56(e). The Sixth Circuit has held "that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) (citations omitted). Thus, in resolving a motion for summary judgment, the Court should not consider unsworn or uncertified documents, Id.; unsworn statements, Dole v. Elliott Travel Tours, Inc., 942 F.2d 962, 968-969 (6th Cir. 1991); inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997); or hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley v. United States, 20 F.3d 222, 225-226 (6th Cir. 1994).
II. Facts
Plaintiff Joy Kline's husband was killed as a result of the injuries he sustained when the automobile he was driving was in a collision with a truck driven by Third-Party Defendant Cecil Hamlin ("Hamlin") and owned by Builders Transport, Inc. ("Builders"). At the time of the accident, which occurred on November 3, 1997, Builders had excess insurance coverage by Defendant Gulf Insurance Company ("Gulf") under policy CU 6063986 and primary coverage with Reliance Insurance Company ("Reliance") under policy NKA011525000 and a Renewal Certificate of that policy. American Re ("AmRe") negotiated the insurance coverage package for Builders' broker, Aon Risk Services.
Plaintiff is the personal representative of her husband's estate. On May 21, 1998, Builders filed a bankruptcy petition. Plaintiff was subsequently granted limited relief from the United States Bankruptcy Court to bring a wrongful death action against Builders' insurers in St. Joseph Circuit Court. This underlying litigation went through mediation in state court, and the parties agreed in January 2001 to settle the action for $3.2 million. In March 2001, a Writ of Garnishment was served on Reliance and Gulf.
Reliance filed a Garnishment Disclosure, indicating that it owed Plaintiff $1 million, based upon its assertion that it covered Builders for $1 million over a $1 million loss corridor deductible and over a $1 million self insured retention ("SIR") provided for in the policy. Based upon the Disclosure of Reliance, Gulf filed a Garnishment Disclosure, indicating that it owed Plaintiff $200,000, to cover the rest of the $3.2 million settlement beyond the coverage provided by Reliance. Both Reliance and Gulf paid these amounts plus statutory interest to Plaintiff.
Plaintiff contests both of these disclosures as inaccurate obligations for coverage. In June 2001, Plaintiff filed the present lawsuit against Gulf, which was removed to this Court by Gulf. Plaintiff's action against Reliance is also pending in this Court in case no. 4:01-CV-52. Reliance was placed in a rehabilitation proceeding by the Pennsylvania Insurance Commissioner, and Plaintiff's action in this Court against Reliance was stayed by Magistrate Judge Ellen S. Carmody on July 19, 2001. Gulf filed a Counterclaim for declaratory relief against Plaintiff and a Third Party Claim against Hamlin requesting a declaration regarding the extent of insurance coverage.
III. Analysis
The Court has reviewed the pleadings filed by the parties and does not believe that oral argument would be helpful to reaching a decision. L. Civ. R. 7.2(d). Jurisdiction in this matter is based on the diversity of citizenship of the parties, and Michigan law applies to the dispute.
In Count I of Plaintiff's First Amended Complaint, Plaintiff claims that Gulfs Garnishment Disclosure contains false statements as to its contractual obligation to cover Plaintiff's Judgment against Builders and Hamlin. Plaintiff asks the Court to enter a Judgment against Gulf for $2 million, in addition to applicable interest, attorney fees, penalties, etc., as the amount she asserts that she is owed pursuant to Gulfs insurance policy with Builders. In Count II, Plaintiff alleges that Gulf refused to pay a claim in bad faith contrary to Michigan law. In Count III, Plaintiff makes a bad faith claim against Gulf under common law. In Count IV, Plaintiff makes a breach of contract claim against Gulf. In Count V, Plaintiff alleges that Gulf violated the Michigan Consumer Protection Act with its actions relevant to this case. Count VI is a negligence claim, and Count VII is a negligent performance of contract claim.
A. What the Primary Reliance Policy Covered
Reliance provided Builders with its primary insurance coverage under policy no. NKA 011525000. On June 1, 1997, Reliance issued a Renewal Certificate for this policy. The accident which took the life of Plaintiff's husband occurred on November 3, 1997.
Gulf claims that the Reliance policy contained a $1 million self insured retention (SIR), a $1 million loss corridor deductible ("deductible"), and a $1 million limit. This means that the first $2 million of any accident was the responsibility of the insured, Builders, and the third $1 million of liability would be paid by Reliance. This would make the "attachment point," or the point at which Gulf would begin to pay, on the excess Gulf policy $3 million.
Plaintiff claims that the Reliance policy only contained a $1 million SIR, no deductible, and a $1 million limit, meaning that the first $1 million of any accident was Builders' responsibility, and the second $1 million would be paid by Reliance. This would make the "attachment point" of the Gulf policy $2 million.
The Renewal Certificate renewing the Reliance policy states that "this Policy is renewed for the Renewal Period shown above at the same terms and conditions as the expiring Policy except as indicated below[.]" (Reliance Renewal Certificate, Gulfs Ex. 1, at front page.) Below that part, the Renewal Certificate also indicates that there were no Endorsement Changes to the original policy in the renewed contract. (Id.) The Renewal Certificate itself contains no reference to a deductible provision. (Cf. id., Gulfs Ex. 1.) The original Reliance policy has a $1.65 million deductible in addition to a $1 million SIR. (Original Reliance Policy, Gulfs Ex. 20, at KLI-42.)
Plaintiff asserts in a few different places in the briefing that Gulfs Exhibit 20 is not the original Reliance policy and that Gulf has conceded as such. (See, e.g., Plaintiff's Brief in Opposition to Defendant Gulfs Motion for Summary Judgment (Dkt. No. 56), at 7.) Plaintiff contends that Gulfs Exhibit 1, the Reliance Certificate, represents both the original policy and the renewal contract. (Id.) However, the Court cannot locate any place in Gulfs briefing where Gulf has conceded that point, even where the Court referenced particular pages of Gulfs briefing cited by Plaintiff Moreover, Plaintiff offers no reasons or supporting evidence why Gulfs Exhibit 20 does not represent an accurate copy of the original Reliance policy or why the Renewal Certificate and attached documents would also somehow represent the original policy.
However, there are a number of endorsements attached to the back of the Renewal Certificate. One of those endorsements to the Renewal Certificate provides for a $1 million SIR. (Gulfs Ex. 1, Endorsement #1.) In addition, Gulf presents a separate exhibit containing what it asserts was the endorsement to the Renewal Certificate inserting a deductible provision for $1 million. (Gulfs Ex. 19, at KLI-60.) It is titled "Amendatory Endorsement," numbered as Endorsement #16, and provides for a $1 million deductible. (Id.) It is dated as effective on June 1, 1997.(Id.) There is no explanation for why Endorsement #16 was not presented as attached to the Renewal Certificate and all of its attachments, particularly when it is dated the same day as the Renewal Certificate was to have been executed. There is also no reference to Endorsement #16 on the schedule of endorsements and policy forms in the Renewal. (Gulfs Ex. 1, at page 2.)
Plaintiff contends that the Renewal Certificate provided for a $1 million SIR and no deductible, by referring the Court to the Certificate's Endorsement No. 1 of three pages. Endorsement No. 1 provides for the SIR of $1 million. (Gulfs Ex. 1.) Nothing else in the Renewal Certificate refers to the deductible that was found in the original policy.
Plaintiff claims that Endorsement #16 was never part of the Renewal policy that Reliance issued. Plaintiff asserts that the edition date of the endorsement is March 9, 1998 because this endorsement contains a part at the bottom indicating "Ed. 3/09/98." (See Gulfs Ex. 19, at KLI-60.) Plaintiff therefore asserts that the form of this endorsement was dated after the endorsement is dated as issued, June 1, 1997, and Plaintiff argues that this calls into question the veracity of the alleged "endorsement" as an actual part of the policy.
While making this argument, Plaintiff actually references Plaintiff's Ex. 22, Endorsement #17, at KLI-61, which is titled "Asbestos Exclusion Endorsement." First, this page is found at Plaintiff's Ex. 27, not at Plaintiff's Ex. 22. Moreover, the Court believes that Plaintiff meant to make the argument with respect to Endorsement #16, which purports to add a $1 million deductible to the Reliance coverage, since Endorsement #17 at KLI-61 does not appear to have any relevance to this dispute and because both Endorsement #17 and #16 contain the "Ed. 3/09/98" reference.
Gulf supports its position that the Renewal Certificate was intended to provide a $1 million SIR and a $1 million loss corridor deductible, and impliedly supports its position that Endorsement #16 was a part of the insurance contract between Reliance and Builders, by pointing to the underwriting documents detailing Builders' negotiations for insurance. Plaintiff does not argue that Gulfs interpretation of the underwriting documents is incorrect, but instead argues that evidence from extrinsic documents is inadmissible. Under Michigan law, the insurance contract must be enforced as written, and any ambiguities are to be read in favor of the insured, here Builders. See Upjohn Co. v. New Hampshire Ins. Co., 476 N.W.2d 392, 397 (1991).
However, this is a case where it is disputed which particular writings constituted the contract, i.e., the dispute is whether Endorsement #16 was or was not a part of the insurance policy. This creates a latent ambiguity which is not apparent from the face of the Renewal Certificate, and thus, extrinsic evidence is available to determine this issue. See McCarty v. Mercury Metalcraft Co., 127 N.W.2d 340, 344 (Mich. 1967). Gulfs interpretation of the underwriting documents, that the documents show that Builders chose a $1 million deductible, stands alone, since Plaintiff did not argue that these documents showed any other intent.
The Court finds that a reasonable jury would have to find that Endorsement #16 was part of the policy and that a $1 million deductible did exist in the Reliance policy in force at the time of the accident. First, it seems clear that some deductible was intended for the policy, particularly because the original policy contained a deductible and its terms were simply renewed in the Renewal Certificate. Second, endorsements are added to policies as addenda, so it does not seem unusual that Endorsement #16 was not presented with the rest of the Gulf policy. Third, Plaintiff's argument challenging the veracity of Endorsement #16 is weak at best. Finally, Gulfs extrinsic evidence that the intent of it and Builders was to include a $1 million deductible is unchallenged by Plaintiff.
B. What The Excess Gulf Policy Covered
Gulfs policy states that it provides excess coverage over the "Retained Limit." (Gulfs Ex. 2, at 1, Art. 1(1).) "Retained limit" is defined as ". . . the total of the applicable limits of the `Underlying Insurance' plus the applicable limits of any other insurance[.]" (Gulfs Ex. 2, at 5, Art. IV.) The "Other Insurance" definition states that "[t]his insurance [provided by Gulf] is excess over any Underlying Insurance set forth in Schedule A and any Self Insured Retention. It is also in excess over any other insurance, whether collectible, or not, whether primary, excess, contingent or self-insurance trust, or on any other basis, except other insurance written specifically to be excess over this policy."
Gulfs brief asserts that this definition is found at Gulfs Ex. 2, at 5, Art. IV, but the Court does not locate the definition there or anywhere else in Gulfs Ex. 2. Plaintiff discusses this definition as well and never disputes that it was part of the policy language, so the Court assumes that it was part of the policy. However, the lack of Bates-stamping of the exhibits in this matter made it very difficult for the Court to easily find, or in this instance, find at all, many of the references that the parties made in their briefing.
Gulf asserts that these provisions mean that the Gulf policy does not attach until the point at which Reliance stops paying, i.e., $3 million. In other words, Gulfs position is that Builders contracted to maintain a $1 million SIR, have a $1 million deductible, then have $1 million of coverage from Reliance, and then have Gulf coverage.
Plaintiff claims that a deductible is not "insurance" and therefore Gulf is obligated to begin paying at $2 million under the terms of its policy, after the $1 million SIR and the $1 million of Reliance coverage. Plaintiff also argues that because the Declaration page and the "Other Insurance" definition of the Gulf policy do not reference the deductible provision of the Reliance policy, then that provision is not applicable to the Gulf policy.
Plaintiff cites a scholarly article indicating that the usual meaning of policies containing deductibles, versus those containing SIRs, is that where the policy contains a "deductible" and the insured becomes insolvent, the insurer is obligated to pay the deductible too as part of the insurer's obligation to pay up to the limit of the policy. See Douglas R. Richmond, Issues and Problems in "Other Insurance," Multiple Insurance, and Self-Insurance, 22 Pepperdine L. Rev. 1373, 1449 (1995). However, this proposition would seem to have relevance only to the liability of Reliance to Plaintiff upon Builders' insolvency, not to Gulfs liability. Even assuming that the proposition in the article is correct and applies to this case, that would mean that Reliance would be obligated to cover the $1 million deductible, not Gulf.
In support of this argument, Plaintiff claims that the term "deductible" is found in Schedule A in reference to Employer's Liability Coverage, where Gulf specifically acknowledges the underlying deductible and, and thus Plaintiff argues, provides that it will cover liability in excess of that deductible and the underlying insurance coverage. (Plaintiff's Ex. 6, Form CU 49003, at page 2.) That is unlike the section at issue here, Business Automobile Liability, which mentions only the SIR. (Plaintiff's Ex. 6, Form CU 49003, at page 1.)
Schedule A mentions "Deductible: $250,000" under Employer's Liability coverage from Reliance. (Plaintiff's Ex. 6, Form CU 49003, at page 2.) Other types of underlying insurance mentioned contain reference to "Excess" and "S.I.R.," like "Excess $500,000 S.I.R." under Employer's Liability coverage from Continental Casualty Insurance Company. (Id.) Under the Business Automobile Liability section, at issue here, is listed "Excess $1,000,000 S.I.R." (Plaintiff's Ex. 6, Form CU 49003, at page 1.) There is no reference to the deductible under this section.
Gulf counters that excess policies do not make specific reference to provisions of the underlying policy, but instead contract to cover only excess liability above the "Retained Limit," which would first fully exhaust the limits of the Reliance policy, including the deductible. In a scholarly article cited by Plaintiff, one scholar noted that a deductible does not reduce the total limit of liability, just the insurer's indemnity obligation. See Douglas R. Richmond, Issues and Problems in "Other Insurance," Multiple Insurance, and Self-Insurance, 22 Pepperdine L. Rev. 1373, 1449 (1995). Therefore, "should an insured with a deductible become insolvent, the insurer must satisfy the deductible as part of its obligation to pay losses up to its limit of liability." Id. On the other hand, "[w]ith an SIR, the impact of the insured's insolvency usually is felt by the claimant — not the insurer. The insured remains obligated to pay the amount of its SIR directly to the claimant, and the insurer is liable only for that portion of the loss exceeding the SIR." Id.
This is an interpretation of the policy language at issue supporting Gulfs position because under these definitions of the insurance industry terms, the applicable "limit" of the Reliance policy would be the $3 million point, including the deductible. While Plaintiff's argument has some appeal, it does not seem that this question is "ambiguous" on the face of the policy such that holding in favor of the insured, Builders, is warranted.
Plaintiff's position would create a nonsensical result which indicates that Gulfs reading of the policy is correct. If Gulfs excess policy covered Builders' deductible, then Gulfs policy would be a "primary" policy in a very important sense. Assuming Builders was liable for a $1.5 million judgment, for example, Reliance coverage would never be implicated. Gulf, however, would have to pay $500,000, representing the portion falling within Builders' deductible after Builders' SIR was exhausted. The policy, however, was clearly not written with an intent to give Gulf any primary liability, only excess liability ("This insurance is excess over any Underlying Insurance . . ."). Surely this was the understanding of Builders when it bought the coverage. Therefore, the Court finds as a matter of law that the Gulf policy provides excess coverage to begin after the $3 million point
addition, both Plaintiff and Gulf submit that the underwriting documents demonstrate an intent of Builders and Gulf which supports their respective readings of the Gulf policy. However, this is not an appropriate case in which to consider the underwriting documents as extrinsic evidence of the intent of Gulf and Builders at the time of contracting, since the policy is not ambiguous on its face, and there is no ambiguity beyond the face of the contract. Cf. McCarty v. Mercury Metalcraft Co., 127 N.W.2d 340, 344 (Mich. 1967).
C. Whether Gulf's Policy Contained an MCS-90 Endorsement
There is also an MCS-90 endorsement that is the subject of controversy between the parties. (See Plaintiff's Ex. 10.) This endorsement was apparently found in the Gulf underwriting file. It is countersigned by a company representative and provides that Gulf will cover $1 million in excess of an underlying limit of $1 million on each accident. (Id.)
Plaintiff also asserts that a valid MCS-90 was found in the underwriting files of AmRe and broker Aon Risk Services, Inc. of New York ("Aon") which would support her assertion that this endorsement was executed and delivered to a representative of the insured, making it a valid part of the contract. Plaintiff cites to Plaintiff's Exhibit 9, which are copies of cover letters to Aon and AmRe from Gulf noting that it is sending a "revised" MCS-90. However, there is no copy of the endorsement provided. Gulf, on the other hand, maintains that the only countersigned MCS-90 was found in Gulfs file, an assertion which Plaintiff has not disputed. A countersignature was required for validity by the terms of the endorsement.
Plaintiff claims that the MCS-90 endorsement was a valid part of the Gulf policy and obligates Gulf to pay $1 million of coverage over the endorsement's underlying limit of $1 million. Gulf claims that this endorsement was not a part of the policy coverage, was not ever a subject of the contract between it and Builders, and was one of a number of documents in its underwriting file which have no application to the coverage provided in the Builders policy.
The MCS-90 endorsement is required of some motor caters by the Interstate Commerce Commission (ICC), unless the motor carrier is granted the authority to self-insure. The parties do not dispute the fact that Builders was granted the authority to self-insure and thus would not have been required by the ICC to obtain an MCS-90 endorsement on its insurance.
Gulf further supports its assertions about the MCS-90 with an affidavit of an expert, John W. Fristoe, who argues that the ICC would have rejected the MCS-90 endorsement if it were submitted because Builders was already given authority to self insure. (Gulfs Response Ex. C.) The Court did not consider the unsigned and unsworn report of Mr. Fristoe attached to Gulfs own summary judgment briefing. See Fed.R.Civ.P. 56(e).
Gulf further submits that the underwriting file of the insurance broker AmRe does not contain a countersigned MCS-90 form and refers the Court to Gulfs Ex. 24. (See Gulfs Ex. 24. In addition, Gulf submits that its own list of endorsements in its underwriting file does not contain the MCS-90 endorsement as issued. (Gulfs Ex. 25.)
Exhibit 24 contains a MCS-90 form which is not countersigned, but there is nothing in the exhibit which indicates conclusively that this was the form found in the AmRe file. (See Gulfs Ex. 24.)
Plaintiff argues that none of this evidence would preclude the possibility that Builders wanted to obtain additional coverage and did so in this manner. While this is true, the Court finds that on the evidence presented, no reasonable jury would be able to conclude that the MCS-90 was a part of the insurance contract between Gulf and Builders. If Builders wanted additional insurance, it could have negotiated for the removal of the SIR or the deductible. It would be far-fetched to believe that Builders would agree to an insurance policy with those provisions, but then negotiate for $1 million of extra insurance. It would also be unlikely that Builders would obtain extra coverage by using the MCS-90 endorsement, which is used for the particular purpose of complying with a government regulation, if the insurance was not obtained for the particular purpose of complying with the government regulation.
The most convincing point, however, is that there is no evidence to conclude that a countersigned endorsement was ever delivered to Builders or its brokers as the completion of an offer and acceptance to contract for that kind of coverage. At most, the evidence before the Court demonstrates that Gulf prepared it in case it could be sold to Builders, but it was never delivered as part of an insurance contract with Builders. Therefore, no reasonable jury could find that there is an MCS-90 endorsement to the Gulf policy.
D. How Builders' Coverage of Hamlin Affects Coverage Owed By Gulf, If At All
Plaintiff asserts that because Hamlin is listed as an additional insured on the Gulf policy, the SIR and the loss corridor deductible, if it exists, do not apply to claims against Hamlin. The Reliance SIR Endorsement states that "the Named Insured shall retain" a SIR "for the benefit of all insureds[.]" The named insured is Builders. Plaintiff asserts that if the SIR was meant to apply to Hamlin, the SIR endorsement would have read "the insureds shall retain, as a self insured retention, each accident, the sum of $1,000,000."
Gulf counters that under the policy, this is not the case. In the Gulf policy, truck owner-operators "are added as an additional insured under this policy but only as respects liability arising out of work performed on behalf of the Named Insured. Naming these entities as an additional insured does not increase the Company's Limits of Liability as specified in the policy Declarations." (Gulfs Ex. 2, Endorsement No. 1.)
Clearly, the very text of the language provides that Builders was to have provided a $1 million SIR "for the benefit of all insureds[,]" itself and Hamlin in this case, before the Reliance coverage began to apply. Unfortunately, Plaintiff cannot access the SIR at this time and may never be able to because of Builders' bankruptcy proceedings. However, the provision of insurance for Hamlin does not mean that coverage of claims against Hamlin begins without regard to a SIR. There is simply no way that meaning can be logically read from this text.
Gulf sued Hamlin as a third-party defendant for a declaratory judgment from this Court that Gulf has satisfied its obligation under the Builders insurance policy to Hamlin. Even though Gulf did not move for summary judgment on its claim for Declaratory Relief against Hamlin, the Court had to determine this issue for purposes of these Motions. Since the Court determines that Hamlin had insurance on the same terms as Builders, the Court would otherwise enter declaratory judgment for Gulf that it has fully satisfied its obligation to cover the liability of Hamlin with the payment it has already made to Plaintiff.
However, Plaintiff is correct that Gulf has not briefed whether Plaintiff's affirmative defenses, as asserted in her Answer to the Third-Party Complaint, apply. Therefore, the Court will order further briefing from the parties. Specifically, the parties will need to brief for the Court whether the evidence available on these defenses warrants summary judgment for one or more parties or whether there are open questions of material fact on which a trial will be necessary.
F. Plaintiff's Bad Faith and Related Claims
As to Plaintiff's claim that Gulf breached its contract with Builders in bad faith, Plaintiff argues that she has standing to bring this claim against Gulf even though she did not contract with Gulf. Plaintiff's position is that the Gulf policy contained the MCS-90 provision. Because the federal government requires MCS-90 provisions in insurance contracts to protect the public, Plaintiff argues that the Court should find that she has standing. First, Builders was not required by law to have the MCS-90 provision, as Plaintiff has conceded. Second, the Court has determined that the MCS-90 was not part of Builders' policy with Gulf Therefore, even ignoring the very slim legal basis on which Plaintiff asserts a breach of contract claim concerning a contract to which she was not a party, summary judgment is still appropriate as to this claim.
As to Plaintiff's tortious bad faith claim, Plaintiff's claim rests on her assertions that Gulf willfully and knowingly filed a false Garnishee Disclosure when it claimed that it only owed Plaintiff $200,000 based on the Reliance disclosure and that Gulf did not file a copy of the MCS-90 in its underwriting file as part of the insurance contract. However, these actions were taken under a reasonable belief about what Gulfs insurance policy contained. Simply because Plaintiff disagrees with Gulfs reasonable interpretation of the issues in controversy would not make Gulfs actions tortious, even if the Court had found for Plaintiff on the underlying issues. For the same reasons, none of Gulfs actions were negligent, making summary judgment on Plaintiff's negligent performance of contract claim also appropriate.
In addition, Plaintiff is not entitled to amounts as yet unpaid on her underlying Judgment nor prejudgment interest based on what she alleges are Gulfs bad faith violations of the Uniform Trade Practices Act (UTPA) or the Michigan Consumer Protection Act (MCPA), since the Court finds for Gulf on the underlying issues of liability. Even so, under the UTPA, for example, an insurer is liable for penalty interest if it does not pay a claim "unless the claim is reasonably in dispute." Mich. Comp. Laws § 500.2006(1). This is an extremely complex matter, and the issues at stake are reasonably in dispute. Further, Plaintiff has failed to identify any acts which could possibly be construed by a jury as "unfair, unconscionable or deceptive" to maintain an action under the MCPA, no matter how Plaintiff characterizes Gulfs actions. See Mich. Comp. Laws § 445.903.
Finally, Plaintiff asserts a negligence claim in Count VI of her First Amended Complaint. As the factual basis for this claim, Plaintiff asserts that she stands in the shoes of Hamlin under the doctrine of equitable subrogation to bring a Negligence claim against Gulf for violating its fiduciary duty with respect to Hamlin in this case. Plaintiff argues that Hamlin would have such a claim because Plaintiff argues that Hamlin is now personally responsible for the remainder of the underlying Judgment which is unpaid. Moreover, Plaintiff alleges that Gulf took various negligent actions with respect to Hamlin. Neither Plaintiff nor Gulf addressed this claim in their summary judgment briefing, even though Gulf styled its motion as one for summary judgment and not one for partial summary judgment. Therefore, the Court will not grant summary judgment as to this claim. The Court will instead require further briefing on this claim by both parties as set forth in the Partial Judgment and Order accompanying this Opinion.
IV. Conclusion
Therefore, the Court will grant Defendant's Motion as to Counts I through V, and VII, of Plaintiff's First Amended Complaint. The Court will deny Plaintiff's Partial Motion for Summary Judgment. The Court will also order further briefing for the reasons on Count VI of Plaintiff's Complaint and on Plaintiff's asserted affirmative defenses as to Gulfs Third-Party Complaint as explained in this Opinion. A Partial Judgment and Order consistent with this Opinion and describing the further briefing required will be entered.