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### STATE OF MICHIGAN

COURT OF APPEALS

FARM BUREAU MUTUAL INSURANCE,

Plaintiff-Appellee, UNPUBLISHED November 17, 2015

v No. 322738
Kalamazoo Circuit Court

MICHELLE WAGNER a nd JAMES WAGNER,

Defendants-Appellants,

and LC No. 2013-000424-CK

CONOR LEWIS and GREG LEWIS,

Defendants.

Before: M ARKEY

, P.J., and O WENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Defendants Michelle Wagner and James Wagner appeal by right th e trial court’s order granting plaintiff Farm Bureau Mutual Insurance’s motion for su mmary disposition pursuant to MCR 2.116(C)(10). We affirm.

On May 17, 2010, defendant Conor Lewis was working as a delive ry driver for a Pizza Hut restaurant in Kalamazoo, Mi chigan. He drove a Mazda owned by his father and insured by plaintiff. While delivering pizz as in the Mazda, Conor hit the rear of Michelle’s automobile while she was stopped and waiting to turn left. On April 17, 2 013, Michelle and her husband James filed suit against Conor, his father Greg Lewis, and Pizz a Hut for damages resulting from
the accident. 1 Pursuant to his No-Fault policy, Greg argued that plaintiff was obliged to defend him against claims and indemnify him for damages arising from t he May 17, 2010 accident. On September 11, 2013, plaintiff filed a complaint against Conor, Greg, Michelle, James, and Pizza Hut requesting declaratory relief that, pursuant to the insuran ce policy, it was not obligated to defend or indemnify anyone with regard to the accident. Specif ically, plaintiff argued that the

1 This suit was filed in the Kala mazoo Circuit Court (Docket No. 2013-0219-NI).-2- following provision in the policy exempted it from liability be cause Conor was delivering pizzas
for Pizza Hut when the accident occurred:

E. Exclusions

1. We do not provide Liability C overage for any Insured:

* * *

f. for liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee. Reimburseme nt of reasonable mileage expenses incurred by the Insured is not considered a fee.

Plaintiff dismissed Pizza Hut after the restaurant agreed to w ithdraw its claim against plaintiff for indemnification and defense. On May 15, 2014, pl aintiff moved the trial court for summary disposition. In response, Greg and Conor conceded that although they could not reasonably argue that Conor was not delivering pizza for Pizza Hut at the time of the accident, they argued that the exclusionary provision was ambiguous on va rious grounds and, therefore, inapplicable. Likewise, Michelle and James argued that the pro vision was ambiguous and inapplicable. The trial court held that the provision was not ambiguous and that there was no genuine issue of the material fact that Conor was delivering pi zzas at the time of the accident. The trial court further held that the provision applied to exem pt plaintiff from liability and the duty to defendant and granted plai ntiff’s motion. Michelle and James appeal by right.

MCL 500.2118(2)(f) “specifically p ermits insurers to limit insu rance coverage on the
basis of business use.” Husted v Dobbs , 459 Mich 500, 506; 591 NW2d 642 (1999). Indeed, coverage under an insurance polic y is lost if any exclusion in the policy applies to particular
claims. Century Surety Co v Charron , 230 Mich App 79, 83; 583 NW2d 486 (1998). Furthermore, because an insurance company cannot be liable for a risk it did not assume, clear and specific exclusions must be given effect. Id

.

In this case, the contract is not ambiguous. The parties do no t dispute that Greg owned the policy at issue at the time of the collision on May 17, 201 0, that the policy listed Conor as a driver, that the Mazda automobile involved in the May 17, 2010 accident was insured under this policy at the time of the accident, or that Conor was driving t he Mazda when the accident occurred. Michelle and James do not dispute that the trial cou rt correctly held that there was no question of material fact that Conor was delivering pizzas purs uant to his employment with Pizza Hut when the accident occurred. Indeed, the evidence shows tha t the trial court properly held there was no question of material fact in that regard. Michell e stated that after striking her automobile, Conor apologized to her and told her he “looked dow n to see if I was supposed to turn on this road because I was delivering pizza for someone.” Conor testified that he was a delivery driver for Pizza Hut. Conor’s supervisor at Pizza Hut , Patrick Truckley, testified to this as well. Pizza Hut’s timesheets for May 17, 2010, show that Co nor worked there from 10:44 a.m. until 5:21 p.m. that day, and evidence indicates that the accident occurred between 10:30 a.m. and 11:00 a.m. Conor was paid an hourly wage for deliveri ng pizzas as well as $1.50 for each delivery to compensate him for mileage and fuel.-3- In Amerisure Ins Co v Graff Chevrolet, Inc , 257 Mich App 585, 592-595; 669 NW2d 304 (2003), rev’d in part on other grounds 469 Mich 1003 (2004), th is Court held that the exclusionary provision in an automobile rental agreement—which this Court likened to an insurance contract—encompassed delivering pizzas for a wage. T he exclusion read: “The Customer agrees that said Automobile shall not be used or opera ted: . . . . To carry passengers or property for a consideration, express or implied.” We conclude that there is no material distinction between the provision in Graff and the provision at issue in this case. Although the provision here uses the word “fee” as opposed to the word “cons ideration” in Graff , we do not believe the there is a substantive difference from the provisio n in Graff because according each provision its plain and ordinary meaning, Mich Nat Bank v Laskowski , 228 Mich App 710, 714; 580 NW2d 8 (1998), results in the understanding that being paid a wage for delivering pizza is encompassed in both. Because plaintiff was carrying property f or a fee at the time of the accident and because the policy excluded from coverage damage a rising from a vehicle used to carry property for a fee, plaintiff cannot be held liable for t he risk it did not assume. Graff , 257 Mich App at 597; Charron , 230 Mich App at 83.

As noted already, the at issue ex clusionary provision was lawfu l and not against public policy. Husted , 459 Mich at 506. Moreover, the exclusion is “clear, unambigu ous and not in contravention of public policy;” consequently, it must be enfor ced as written. Raska v Farm Bureau Mut Ins Co of Mich , 412 Mich 355, 361-362; 314 NW 2d 440 (1982). So, plaintiff wa s not obligated to provide coverage arising from the accident, an d under the terms of the policy plaintiff had “no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy[.]” Furthermore, plaintiff had n o duty to defend or settle the claims in the underlying suit. Thus, as there is no questi on of fact that under this provision, plaintiff was not liable to indemnify or defend defendant, the trial court properly granted plaintiff’s motion for summa ry disposition on this basis.

Michelle and James nevertheless argue that the exclusion does n ot apply or that it is ambiguous. They claim that because Pizza Hut reimbursed Conor $1.50 for each delivery, the exclusionary provision of the policy does not apply. But their argument ignores the fact that Pizza Hut both reimbursed Conor for each pizza delivery and pai d him an hourly wage. Although it is true that Truckley testified that Pizza Hut’s de livery drivers did preparation work, washed dishes, and answered tel ephones in addition to deliverin g pizzas, he also testified that the duty of a delivery driver was “[f]irst and foremost . . . to ta ke deliveries to the customer.” The fact that Conor performed duties as an employee of Pizza Hut ot her than delivering pizzas does not negate the fact that he was paid a wage to deliver pizzas, and it did not render the exclusionary provision inapplicable. See Graff , 257 Mich App at 595-596.

Michelle and James also argue that because Conor was not licens ed under the Motor Carrier Act (MCA), MCL 475.1 et seq. , he was not engaged in the business of transportation; therefore, the exclusionary pr ovision in the policy did not app ly to him. Based on this premise, they further argue that transportation was merely incidental to Pizza Hut’s business and, therefore, Conor was not carrying property for a fee when he de livered pizzas, and the exclusionary provision does not apply. The MCA confers “upon t he [Michigan public service] commission the power and authority and to make it its duty to s upervise and regulate the transportation of property by mo tor vehicle for hire upon and o ver the public highways of this state . . . .” MCL 475.2. Although it is true that the MCA re quires licensing in various-4- circumstances, see MCL 476.1; MCL 477.1, we find no provision o f the MCA suggesting that any aspect of it applies to the se circumstances. And, even ass uming it does, nothing supports that it should or could be applied to aid in construing the exc lusionary provision at issue. Because Michelle and James cite no authority to the contrary, t hey have abandoned this
argument. Houghton v Keller , 256 Mich App 336, 339-340; 662 NW 2d 854 (2003). To restate, because the exclusion is clear, unambiguous, and lawful, it mus t be enforced as written. Husted

, 459 Mich at 506; Raska , 412 Mich 355, 361-362. Whether the MCA applied to Conor’s us e of
the vehicle in the accident is of no relevance to whether the e xclusionary provision in the policy at issue applies to the accident on May 17, 2010.

Michelle and James also argue that the trial court erred in app lying Graff because the provision at issue in Graff did not concern reimbursement, whereas the provision in this c ase does concern reimbursement. And, they argue that Graff was inapplicable because the provision
in Graff was in an automobile rental agreement, whereas the agreement h ere is an insurance policy. These arguments fail. These distinctions between Gaff and this case do not render Graff inapplicable. As discussed, the reimbursement passage in the e xclusionary provision does not apply here because Pizza Hut paid Conor a wage to deliver pizza s apart from the $1.50 he was given for each delivery as reimbursement for mileage and fuel. Because Conor was paid a wage to deliver pizzas, this case and Graff are not distinguishable. See Graff , 257 Mich App at 595- 596. Furthermore, although th e provision at issue in Graff was contained within a rental agreement, this Court interprete d that provision as it would in terpret an insurance policy, and the principle of applying the clear and unambiguous terms of the ag reement is the same.

Next, Michelle and James argue that the trial court erred in fa iling to apply Powers v
Detroit Auto Inter-Ins Exch , 427 Mich 602, 623-624; 398 NW2d 411 (1986), when construing the exclusionary provision. This opinion in not precedential, however, because a majority of justices did not sign the lead opinion. Wilkie v Auto-Owners Ins Co , 469 Mich 41, 58; 664 NW2d 776 (2003). Our Supreme Court has explicitly overruled th e doctrine of reasonable expectations that the Powers plurality applied, Wilkie , 469 Mich at 63, and repudiated altogether
the Powers plurality opinion in Farm Bureau Mut Ins Co of Mich v Nikkel , 460 Mich 558, 555- 566; 596 NW2d 915 (1999). Therefore, t he trial court did not e rr in not applying Powers

.

Finally, Michelle and James cite various cases in support of th eir argument that the exclusionary provision was ambiguous, but we conclude that none of these cases applies to this case to render the provision am biguous. In addition, Michelle and James’s arguments are merely repetitions of the arguments addressed already regarding the re imbursement clause and the MCA, both of which we have dete rmined to be without merit.

We affirm.

/s/ Jane E. Markey
/s/ Donald S. Owens /s/ Amy Ronayne Krause