NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0483n.06
No. 12-1864
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT REGI NAL D HAYE S and CASS ANDRA HAYES, Plaintiffs-Appellants,

v. L I BERTY I

NSURANCE CORP ORATI ON, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BOG GS and COL E, Circuit J udg es; QUI ST, District J udg e. *

PER CURI AM. Reg inald Hay es and Cassandra Hay es ap p ea l t he district court’s g rant of
summary judgme nt and its interlocutory order dissolving a preliminary injunction in this insurance dispute. We affirm.
L iberty I nsuranc e Corporation (L iberty ) is s u ed a homeowner s policy to the Hay eses eff ective
Fe bruar y 28, 2010, to Fe bruar

y 28, 2011. On or about November 23, 2010, the Hay eses discovere d leaking pipes in their home. An investiga tion by a contra ctor reveal ed as b es t o s in the walls, requiring the Hay ese s to vaca te their home and seek temporar y living arr ang ements. L iberty subseque n tly notified the Hay eses that their homeowner s policy provided cover ag e for additional

The Honora

ble Gordon J

. Quist, Uni t ed S t ates District J udg e for the Western District of * Michig an, sitting by

desig nation.No. 12-1864

Haye s v. Liberty Ins. Corp. living expenses for twelve months following the date of loss and that no additional living expenses incurre d bey ond November 23, 2011, would be proc essed.
On November 21, 2011, the Hay eses filed a complaint for specific perf ormanc e/anticipator

y brea ch and decla

ratory relief ag ainst L iberty in the Gene see County Circuit Court. The state court
g rante d th e Hay eses’ motion for a preliminary injunction and order ed L iberty to continue pay ing additional living ex penses to the Hay eses. L iberty remove d the ca se t o the di strict court based on diversity of citizenship and subsequently moved for summary judgme nt and for dissoluti on of t he preliminary injunction. Concluding that the homeowner s policy require d L iberty to pay additional living expenses for only a maxi mum of twelve months, the district court g rante d L iberty ’s motions for summ ary j u d gment and for dissoluti on of t he preliminary injunction. L iberty ’s counterclaims for resc ission, unjust enric hment, and decla ratory judgme nt rema ined pending

. This timely appea l followed.
We have jurisdiction to revie w the district court’s interlocutory order disso l v i n g the preliminary injunction pur suant to 28 U.S.C. § 1292(a) (1). We revie w the district court’s order de

novo wher e, as here , the dissoluti on is based on a leg al premise. Ree se v. City of Columbus , 71 F.3d 619, 622 (6th Cir. 1995). We may also revie w the district court’s summary -judg ment ruling beca use that ruling formed the basis for the district court’s decision to dissolve the preliminary injunction.
S ee Gi b s o n Gui tar Corp. v. Paul Ree d Smith Guitars, LP , 423 F.3d 539, 545 (6th Cir. 2005). Summary judgme nt is appropr iate “if the m ovant s hows that there is no g enuine disput e as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(a)

.

-2-No. 12-1864

Haye s v. Liberty Ins. Corp. Under Michig an law, “[a]n insurance policy is much the same as any other contra ct.” AutoOwners Ins. Co. v. Churchman , 489 N.W.2d 431, 4 3 3 (M i ch

. 1 992). The court must look at the policy “as a whole and g ive meaning to all terms.” Id

. at 434. “An insurance contra ct is ambig uous if, afte r reading the entire contra ct, i ts lang uag e re asonably can be understood in diffe ring way s.” Fragner v. Am. Cmty. Mut. Ins. Co. , 502 N.W.2d 350, 3 5 2 (M ich. Ct. App. 1993). “I f the
contra ctual lang uag e is unambig uous, courts must interpre t and enfor ce the contra ct as wr i t t en beca use an unambig uous contra ct ref lects the parties’ intent as a matter of law.” Hastings Mut. Ins. Co. v. Safety King, Inc ., 778 N.W.2d 275, 278 (Mich. Ct. App. 2009).
Two provisions of the homeowner s policy are at issue in this case . The homeowner s policy provides the f

ollowing c overa g e for

the loss of use of the insured pre mises:
COVERAG E D - Loss Of Use

. . . . 1. I f a loss cover ed under this Section makes that part of the “re sidence premises” wher e y ou reside not fit to live in, we cover the Additional L iving Ex pense, meaning any nece ssary incre ase in living expenses, incurre d by y ou so that y our household ca n maintain its normal standard of living. Pay ment will be for the shortest time require d to repa ir or repla ce the damag e or, if y ou perma

nently reloc ate, the shortest time require d for y our household to settle elsewhe re. An endor sement to the policy provides as f

ollows:
C. INCREASED LIMIT - COVERAG E D
We will p ay t h e am ount of loss cover ed by Coverag e D which is actua lly sustained by y ou during the 12 consec utive months following the date of loss, subject t o the periods of time under par ag raphs 1, 2, and 3 of C overa g e D

- L oss of Use. -3-No. 12-1864

Haye s v. Liberty Ins. Corp. We ag ree with the district court that these provisions, rea d toge ther, place a twelve- month limit on the pay ment of additional l iving expenses, “subjec t to” the further limit ation on pay ment of such
expenses “for t he shortest time require d to repa ir or repla ce the damag e or, if y ou perma nently reloc ate, the shor

test time require d for y our household to settle elsew here .” The Hay eses contend t hat t he periods of t ime under p ar agr ap h s 1 , 2, and 3 of C overa g e D alway s trump the twelve- month limit on pay ment of additional living expenses and that the district
court rew rote the parties’ unambig uous contra ct provision to include the condition: “unless it takes

a shorter period of time to repa ir or repla ce the damag e or perma nently reloc ate.” Acc ording to the Hay eses, the district court rew rote the provision to avoid rende ring the twelve- month limit a nullity , improperly rely ing on rules of contra ct interpre tation and constructio n wh en the policy provision contains no ambig uity

. But g iving eff ect to all of a contra ct’s terms is not a rule of construction to be applied only afte r a finding of ambig uity : “[C] ourts cannot simply ignor e portions of a contra ct in order to avoid a finding of ambig uity or in order to decla re an ambig uity

. I nstead, contra cts must be construed so as to g ive eff ect to ever

y word or phrase as far as prac ticable.” Klapp v. United Ins. Grp. Agenc

y, Inc ., 663 N.W.2d 447, 453 (Mich. 2003) (inter nal quotation marks omitted). The case upon which the Hay eses rely , Michigan Townshi p Participating Plan v. Pavolich , 591 N.W.2d 325 (Mich. Ct. App. 1998), is inapposite. I n that case , the Michig an Court of Appea ls held that a portion of the insurance policy cover ing “y ou or any family member” was surplusag e beca use the village , the named insured, “ca nnot sustain bodily injury or have family members.” Id

. at 3 3 1

. Her e, the twelve- month limit on pay ment of additional living expenses is not m er e

-4-No. 12-1864

Haye s v. Liberty Ins. Corp.

s u rpl usag e – clea

rly , L iberty can (and did) place a time limit on the pay ment of benef

its to th e Hay eses. Be cause we ag ree with the district court that the homeowner s po l i cy , rea d as a whole, unambig uously place s a twelve- month limit on the pay ment of additional living expenses, we aff irm the district court’s g rant of summary judgme nt and its dissoluti on of the prelim i n ar y injunction order ing L iberty to continue pay ing those expenses to the Hay eses bey ond the twelve- month period.

-5-