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STATE OF MICHIGAN 

COURT OF APPEALS 

HOME-OWNERS INSURANCE COMPANY, 

 Plaintiff/CounterdefendantAppellee/Cross-Appellant, 

UNPUBLISHED 

October 28, 2014 

v No. 312707 

Wayne Circuit Court 

MARY GRIFFITH, LC No. 10-014995-CK 

 Defendant/CounterplaintiffAppellant/Cross-Appellee, 

and 

LINDA MCCORMICK, a/k/a MARIE GRIFFITH, 

 Defendant-Cross-Appellee. 

Before: JANSEN, P.J., and SAAD and DONOFRIO, JJ. 

PER CURIAM. 

 Defendant Mary Griffith (hereinafter “Mary”) filed a claim with plaintiff, her 

homeowner’s insurer, following a fire loss at her home in Inkster, Michigan. Plaintiff thereafter 

filed this action, seeking a declaration that neither Mary, nor her daughter Linda McCormick 

(hereinafter “Linda”), who was residing or temporarily staying with Mary at the time of the fire, 

was entitled to recover any benefits under the policy. Plaintiff also sought to recover damages 

for its costs incurred in the investigation of Mary’s claim, and monies advanced before denying 

Mary’s claim. The trial court granted in part plaintiff’s motion for summary disposition under 

MCR 2.116(C)(10). The court ruled that Mary breached a condition precedent under the policy 

by failing to timely submit a sworn statement of proof of loss and by failing to cooperate with the 

investigation of the fire, and declared the policy void. However, the court denied plaintiff’s 

request for recovery of expenses advanced and the costs associated with its investigation of the 

claim. Mary appeals by right the trial court’s order declaring the policy void, and plaintiff crossappeals the trial court’s order denying its request for damages. We affirm the trial court’s order, 

as modified to clarify that plaintiff is not obligated to indemnify Linda for any claims she may 

submit under the policy. 

 
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I. THE DECLARATORY JUDGMENT ACTION 

 Mary argues that the trial court erred by granting summary disposition for plaintiff on its 

request for declaratory relief to declare the policy void. We disagree. This Court reviews de 

novo the trial court’s summary disposition decision. Spiek v Dep’t of Transp, 456 Mich 331, 

337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual support for a 

claim. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). A reviewing court 

must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence 

submitted by the parties. MCR 2.116(G)(5). Summary disposition should be granted if, except 

as to the amount of damages, there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Babula, 212 Mich App at 48; see also Smith v Globe Life 

Ins Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999). 

 Mary argues that plaintiff did not submit any evidence showing that she or Linda 

breached the policy, such that the policy is void. The trial court’s ruling was based on two 

grounds: (1) that Mary failed to cooperate with the investigation of her claim as required by the 

policy, by intentionally concealing or misrepresenting material information during the 

investigation, and (2) that Mary failed to timely provide a sworn proof-of-loss statement. 

 At her examination under oath, Mary refused to provide several items of requested 

information, including her date of birth, her Social Security number, her former names, and her 

financial information. Mary also denied that she had ever previously filed an insurance claim 

related to a fire loss. Plaintiff submitted evidence that Mary previously lived at a house in 

Livonia that was destroyed by fire in 2003. That property had also been the subject of a 

contentious divorce proceeding between Mary and her husband, Edward McCormick, who 

apparently died before the divorce could be finalized. Litigation concerning the Livonia property 

continued after Edward’s death when defendants were involved in multiple lawsuits. Mary was 

known as “Mary McCormick” while she was married, but she denied using any other names. 

 The insurance policy expressly provides that plaintiff is not obligated to provide coverage 

for any loss to an insured who intentionally conceals or misrepresents any material fact or 

circumstance, engages in fraudulent conduct, or makes a false statement relating to the insurance. 

This policy language is consistent with that of MCL 500.2833(1)(c), which provides that every 

fire insurance policy issued or delivered in this state shall contain a provision “[t]hat the policy 

may be void on the basis of misrepresentation, fraud, or concealment.” 

 In Mina v Gen Star Indemnity Co, 218 Mich App 678, 686-687; 555 NW2d 1 (1996), 

rev’d in part on other grounds 455 Mich 866 (1997), this Court stated: 

 To void a policy because the insured has wilfully misrepresented a 

material fact, an insurer must show that (1) the misrepresentation was material, 

(2) that it was false, (3) that the insured knew that it was false at the time it was 

made or that it was made recklessly, without any knowledge of its truth, and (4) 

that the insured made the material misrepresentation with the intention that the 

insurer would act upon it. Rayis v Shelby Mutual Ins Co of Shelby, Ohio, 80 Mich 

App 387, 393; 264 NW2d 5 (1978). A statement is material if it is reasonably 

relevant to the insurer’s investigation of a claim. Dadurian v Underwriters at 
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Lloyd’s, London, 787 F2d 756, 759-760 (CA 1, 1986); Fine v Bellefonte 

Underwriters Ins Co, 725 F2d 179, 183 (CA 2, 1984), cert den 469 US 874 

(1985). 

 We disagree with Mary’s argument that plaintiff failed to submit any evidence that she 

concealed or misrepresented any material information. Mary concedes that she did not reveal 

that she had previously used the name Mary McCormick when she was married. Mary further 

admits that she refused to provide personal information to plaintiff, such as her date of birth and 

Social Security number. Mary had used her married name within the 10-year period preceding 

the fire. Although Mary claimed that she was concerned about identity theft, she refused to 

disclose more than just personal identifying information. She refused to produce any official 

form of identification, including her former name and Social Security number. The failure to 

provide this information prevented plaintiff from properly investigating Mary and her 

background, which included multiple lawsuit related to a previous fire at the Livonia property in 

2003. Although Mary asserts that any information regarding the 2003 fire at the Livonia 

property was irrelevant, it was not for Mary to determine what information was material to 

plaintiff’s investigation. Moreover, plaintiff had legitimate reasons for seeking information 

about prior fires and claims. For instance, plaintiff was entitled to learn whether defendants were 

attempting to recover for any items that might have previously been destroyed or covered in the 

2003 fire. This information was particularly material in this case because defendants claimed to 

have discarded various items before the investigation was completed and before their inventory 

list was verified. The trial court did not err by ruling that Mary failed to disclose or 

misrepresented material information related to plaintiff’s investigation of the insurance claim. 

 We also reject Mary’s argument that the trial court erred by finding that she failed to 

timely submit a sworn proof-of-loss statement. It is undisputed that Mary was required to submit 

a sworn proof of loss by May 27, 2010, and that she was permitted to mail the form to plaintiff 

by that date even if plaintiff did not receive it by then, as long as Mary provided evidence 

showing that it was mailed by May 27. 

 The general rule is that an insured’s failure to timely render a proof-of-loss statement 

precludes a claim under the policy, absent a waiver of this requirement. The failure to comply 

with the requirement for timely filing a proof-of-loss statement is considered a condition 

precedent to the insurer’s liability. Auto-Owners Ins Co v Gallup, 191 Mich App 181, 183-184; 

477 NW2d 463 (1991). The rule applies without regard to whether the insurer was prejudiced. 

Dellar v Frankenmuth Mut Ins Co, 173 Mich App 138, 145; 433 NW2d 380 (1988); see also 

DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 367-368; 817 NW2d 504 (2012). As this 

Court explained in Dellar, 173 Mich App at 145-146: 

 The purpose of provisions in an insurance contract requiring the insured to 

give prompt notice is to allow the insurer to make a timely investigation in order 

to evaluate claims and to defend against fraudulent, invalid, or excessive claims. 

Wendel v Swanberg, [384 Mich 468, 477-478; 185 NW2d 348 (1971)]. The filing 

of a proof of loss within sixty days allows the insurer to determine with certitude 

that the insured demands payment under the policy, the amount of the claim, and 

the question of its liability. 
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If the insurer invites the use of the mail to file a proof-of-loss statement, the insurer will bear the 

risk of the document being lost in the mail. Gallup, 191 Mich App at 184. 

 Michigan also follows the “substantial performance of contract rule,” which may apply to 

the filing of a proof-of-loss statement to create an exception to the strict time requirements for 

filing a sworn statement of proof of loss. Gibson v Group Ins Co of Michigan, 142 Mich App 

271, 275-276; 369 NW2d 484 (1985). As explained in Gibson, 142 Mich App at 275-276: 

 Although cases from foreign jurisdictions allow for the defeat of an 

insurance claim by any refusal to answer relevant questions during an 

investigation, the Michigan cases regarding forfeiture of contract rights are fairly 

summarized by the following commentary: 

 “Michigan follows the substantial performance of contract rule. The 

common-law rule was that performance as a condition precedent to recovery on a 

contract must be strict performance in accordance with the terms of the contract. 

 * * * 

 “A contract is substantially performed when all the essentials necessary to 

the full accomplishment of the purposes for which the thing contracted has been 

performed with such approximation that a party obtains substantially what is 

called for by the contract. 

 “Generally speaking, deviations from the absolute terms of a contract do 

not necessarily cause a failure of performance, but may entitle a party to extra 

compensation or damages. Imperfections in the matters of details which do not 

constitute a deviation from the general plan do not prevent the performance from 

being regarded as substantial performance. On the other hand, where the 

deviations or alterations are such as would essentially change the terms of 

performance, they will be considered as a failure of performance.” 6A Michigan 

Law & Practice, Contracts, § 314, pp 315-316 (footnotes omitted). 

Policy provisions requiring the timely submission of a proof-of-loss statement will ordinarily be 

given effect unless a satisfactory excuse for noncompliance or delay is provided. Westfield Ins 

Co v Appleton, 132 Fed Appx 567, 574; 2005 WL 1313413, 7 (CA 6, 2005). 

 Although Mary admits that plaintiff did not receive the proof-of-loss statement by the 

May 27, 2010, deadline, she contends that she substantially complied with the requirement by 

placing the statement in the mail on May 27, 2010, and hand-delivering a copy to plaintiff on 

June 3, 2010. She further claims that plaintiff was in receipt of it by June 4, 2010. Mary relies 

only on a postal cancellation date of May 27, 2010, to support her assertion that she timely filed 

her proof-of-loss statement. However, that date is not proof that the package was mailed on that 

date. Moreover, Mary does not dispute that the proof-of-loss statement included with that letter 

was not sworn. Where an unsigned proof-of-loss statement is submitted, the insured is not 

considered bound by any of the statements therein as her own. Barnes v State Farm Fire & Cas 

Co, 623 F Supp 538, 540 (ED Mich, 1985). Because there is an important policy reason for 

requiring a properly signed proof-of-loss statement, substantial compliance is lacking if the 
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statement submitted is unsigned. Id. The proof-of-loss statement that was hand-delivered on 

June 3 is dated June 2, beyond the May 27 deadline. Thus, the submitted evidence showed that a 

proper proof-of-loss statement was not signed under oath and delivered to plaintiff by May 27. 

Mary’s failure to timely submit a signed proof-of-loss statement does not constitute substantial 

compliance. 

 Contrary to Mary’s assertions, the trial court did not grant summary disposition on the 

basis of any alleged wrongdoing by Linda. Although plaintiff submitted evidence that Linda 

also failed to cooperate with plaintiff’s investigation, Linda took the position that she was not 

required to cooperate because she was not an insured under the policy and was not pursuing any 

claim for benefits. The trial court held that Linda did not have any claim for that reason. 

 After reviewing the record, we conclude that there was no genuine issue of material fact 

regarding Mary’s failure to satisfy a condition precedent to recovery under the insurance policy 

with plaintiff. Mary did not provide a sworn copy of the proof-of-loss statement by May 27, 

2010, and did not come forward with evidence showing that she timely mailed a proper copy by 

that date. Mary also failed to fully cooperate with plaintiff’s investigation without a valid 

excuse. Mary’s alleged concerns about identity theft did not excuse her from refusing to disclose 

that she had previously used the name Mary McCormick and that she and her daughter had 

previously pursued a claim for an earlier fire. No reasonable juror could conclude that Mary’s 

omissions were made innocently and without intent to conceal material information from 

plaintiff. The trial court properly granted plaintiff’s motion for summary disposition and 

declared the policy void. 

II. CLAIMS AGAINST LINDA MCCORMICK 

 Plaintiff argues on cross-appeal that the trial court erred by failing to rule that it had no 

duty to indemnify Linda for any claims she might submit as a possible insured under Mary’s 

policy. It is apparent that the trial court intended its decision to encompass any claims by Linda 

because when asked whether “the motion is granted as to Linda McCormick,” the court clarified 

that “Linda doesn’t have a claim.” However, the trial court’s judgment did not expressly 

indicate that it encompassed any claim by Linda such that plaintiff was not liable for any claim 

that Linda might submit, although the court did declare the policy void. Because the court 

clearly intended its declaratory ruling to apply to Linda and because Linda does not challenge 

that ruling, and in fact admitted below that she was not pursuing any claim under the policy, we 

modify the trial court’s order to expressly provide that plaintiff is not liable to indemnify Linda 

for any claims she may have under the insurance policy. 

III. DAMAGES 

 Plaintiff also argues on cross-appeal that the trial court erred by failing to award it 

damages for (1) the costs it incurred in the investigation of Mary’s claim, and (2) the monies it 

advanced to Mary before denying her claim. The trial court rejected plaintiff’s request for 

damages because plaintiff did not cite any authority allowing it to be reimbursed for those 

expenses. On appeal, plaintiff does not cite any policy provision in support of its request, but 

instead simply argues that it may recover the specified damages under the general rule that a 
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party damaged by a breach of contract is entitled to those damages that naturally flow from the 

breach. See Huler v Nasser, 322 Mich 1, 8; 33 NW2d 637 (1948). 

 Insurance policies are subject to the same principles of construction that apply to any 

other type of contract. Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005). 

Michigan courts follow the rule of Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854), 

“that a party who fails to perform its contractual obligations becomes liable for all foreseeable 

damages flowing from the breach.” Burnside v State Farm Fire & Cas Co, 208 Mich App 422, 

427-428; 528 NW2d 749 (1995). “ ‘Where there are no special circumstances to distinguish the 

contract involved from the great mass of contracts of the same kind, the damages recoverable are 

such as would naturally and generally result from the breach according to the usual course of 

things[.]’ ” Id. at 427 n 2, quoting Huler, 322 Mich at 8. “The party asserting a breach of 

contract has the burden of proving its damages with reasonable certainty, and may recover only 

those damages that are the direct, natural, and proximate result of the breach.” Alan Custom 

Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). 

 With respect to plaintiff’s request to recover any advances provided to Mary, plaintiff 

incorrectly asserts that the policy was found to be void ab initio. A policy that is considered void 

ab initio is treated as if it never existed. United Security Ins Co v Comm’r of Ins, 133 Mich App 

38, 42; 348 NW2d 34 (1984). Here, the trial court only ruled that the policy was void, because 

Mary breached a condition precedent to recovery under the policy. The failure of one party to 

satisfy a condition precedent simply means that there is no cause of action for failure to perform 

the contract. See Harbor Park Market, Inc v Gronda, 277 Mich App 126, 131; 743 NW2d 585 

(2007). Thus, while there was no cause of action on the contract, the policy was not void ab 

initio. The trial court did not err by denying plaintiff’s request to recover any expenses it 

advanced to Mary before the policy was declared void for failure to satisfy a condition precedent. 

See Titan Ins Co v Hyten, 491 Mich 547, 567; 817 NW2d 562 (2012) (noting that when an 

insurance policy is cancelled, it is terminated as of the cancellation date and is still effective up 

to that date). 

 With respect to plaintiff’s request to recover the expenses it incurred in investigating 

Mary’s claim, plaintiff failed to show that these expenses were the direct, natural, and proximate 

result of Mary’s breach. The purpose of the investigation was to determine the validity of 

Mary’s insurance claims in the first instance, i.e., to determine whether she was in breach of the 

policy’s terms. The investigation did not result from Mary’s breach. Thus, plaintiff failed to 

show that the expenses it incurred in investigating Mary’s claim were the natural result of 

Mary’s breach. 

 We affirm the trial court’s order but modify it to provide that plaintiff is not liable to 

indemnify Linda for any claims she may have under the insurance policy. 

 Affirmed as modified. As the prevailing party, plaintiff may tax its costs pursuant to 

MCR 7.219. 

/s/ Kathleen Jansen 

/s/ Henry William Saad 

/s/ Pat M. Donofrio