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### STATE OF MICHIGAN

COURT OF APPEALS

GINA BUCHMAN,

Plaintiff-Appellee, UNPUBLISHED August 11, 2016

v No. 326838 Oakland Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 2014-140109-CK

Defendant-Appellant.

Before: M URPHY , P.J., and S TEPHENS and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 an order denying defendant’s motion for summary disposition in this no-fa ult action. We reverse.

I. BACKGROUND

This case arises out of injuries sustained by plaintiff, on Oc tober 15, 2013, at approximately 10:00 p.m., when she was involved in a single car accident on M-59. Plaintiff was traveling home in her vehicle on eastbound M-59 when she en countered an object that appeared to be “a deer wrapped in a tarp.” Plaintiff swerved t o avoid the object, but ultimately lost control of her vehicle, stru ck the object, and crashed hea d-on into a concrete barrier. Plaintiff sustained two herniate d discs—one in her neck and one in her back—as a result of the accident.

Victoria Gill, an eyewitness who was traveling behind plaintif f’s vehicle on eastbound M-59, observed plaintiff “lose control of her car going back an d forth and then [crash] into the median.” Gill stated that she stopped to offer assistance to p laintiff, and plaintiff’s first words to Gill were, “did you see that deer?” Gill did not see a tarp or any other object in the highway. At some point, an unidentified man arrived at the scene. He asked plaintiff if she was okay, and stated that he had seen the tarp and wanted to turn around to g et if off the highway before it caused an accident. Neither Gill nor plaintiff saw the man rem ove anything from the highway.

1 Buchman v MemberSelect Ins Co , unpublished order of the Court of Appeals, entered October 7, 2015 (Docket No. 326838).-2- Oakland County Sheriff Deputy De rek Myers arrived at the scene at approximately 10:15 p.m. Myers did not see a tarp on the highway when he arrived and con firmed that plaintiff was involved in a single car accident. Plaintiff filed an uninsure d motorist claim with defendant after the accident, which defendant subs equently denied for the reaso n that plaintiff’s vehicle did not come in “direct physical contact” with an uninsured motorist’s vehicle.

II. STANDARDS OF REVIEW

We review a trial court’s grant or denial of a summary disposi tion motion de novo. Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). Defendant brought it s motion under MCR 2.116(C)(8) and MCR 2.116(C)(10), but the tria l court did not expressly identify the legal grounds on which it denied defendant’s motio n for summary disposition. However, because it is clear that, in reaching its decision, th e trial court considered documentation beyond the pleadings, we review the motion under the standard of MCR 2.116(C)(10). See Besic v Citizens Ins Co of the Midwest , 290 Mich App 19, 23; 800 NW2d 93 (2010).

A motion under MCR 2.116(C)(10) tests the factual support for a claim, Walsh v Taylor
, 263 Mich App 618, 621; 689 NW2d 506 (2004), and should be grant ed as a matter of law when “there is no genuine issue as to any material fact,” MCR 2.116( C)(10). A genuine issue of material fact exists when, after viewing the evidence in a ligh t most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008). This Court reviews the pleadings, affidavits, depositions, admissions, and other evidence submitted by the parties in a li ght most favorable to the nonmoving party. Walsh , 263 Mich App at 621.

Additionally, the construction a nd interpretation of whether i nsurance policy language is considered ambiguous is reviewed de novo as a matter of law. Dancey v Travelers Prop Cas Co
, 288 Mich App 1, 7; 792 NW2d 372 (2010).

III. ANALYSIS

Defendant’s sole argument is that the trial court erred in den ying its motion for summary disposition because no genuine issue of material fact exists re garding whether plaintiff or plaintiff’s vehicle made “dire ct physical contact” with an unin sured motorist’s vehicle as required under the uninsured mot orist provision of the insuranc e policy issued by defendant. We
agree.
In Michigan, “[u]ninsured motor ist coverage is optional—it is not compulsory coverage mandated by the no-fault act.” Rory v Continental Ins Co , 473 Mich 457, 465; 703 NW2d 23 (2005). As such, the rights and limitations of uninsured motor ist coverage are purely contractual in nature. Id . “Insurance policies are contracts and, in the absence of an applicable statute, are subject to the same contract cons truction principles that apply to any other species of contract.” Titan Ins Co v Hyten , 491 Mich 547, 554; 817 NW2d 562 (2012) (quotation marks and c itation omitted). Because uninsured motorist coverage is optional and the policy itself controls, “interpretation of the policy di ctates under what circumstances those benefits will be awarded.” Dawson v Farm Bureau Mutual Ins Co of Mich , 293 Mich App 563, 568; 810 NW2d 106 (2011)-3- (citation omitted). “Policy la nguage should be given its plain and ordinary meaning, and this Court must construe and apply unambiguous terms as written,” Wells Fargo Bank, NA v Null
, 304 Mich App 508, 519; 847 NW2d 657 (2014), unless the provisio n violates the law or public policy, Rory , 473 Mich at 461. “A contract is unambiguous, even if inartfu lly worded or clumsily arranged, when it fairly admits of but one interpretat ion.” McCoig Materials, LLC v Galui Const, Inc , 295 Mich App 684, 694; 818 NW2d 410 (2012) (citation omitted)

. In this case, the uninsured m otorist provision at issue provid es that defendant will pay the insured benefits where the insured suffers bodily injury which: “(a) is caused by accident; and (b) arises out of the ownership, operation, maintenance or use of an uninsured motor vehicle ; and (c) that insured person suffers death, serious impairment of body function or permanen t serious disfigurement; and (d) that insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle .” Further, the provision defines an “uninsured motor vehicle” as a motor vehicle that is “(a) not insured by an owne r’s or operator’s bodily injury [policy], [or] . . . (b) a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with” the insured, a resident relative of the insured, or a motor vehicle occupied by the insured. (Emphasis added.)

This Court recently addressed t he interpretation of “direct ph ysical contact” in the context of an uninsured motorist provision in McJimpson v Auto Club Group Ins Co , ___ Mich App___; ___ NW2d ___ (2016) (Docket No. 320671). In McJimpson , the plaintiff swerved to avoid a piece of metal that flew off of an unidentified motorist’s vehi cle. Id . at ___; slip op at 1. The plaintiff’s vehicle never came in contact with the unidentified motorist’s vehicle and the driver of the unidentified motorist v ehicle never stopped. Id . The plaintiff was “entitled to claim uninsured motorist benefits if the vehicle that caused her inju ries met the contractual definition of an ‘uninsured motor vehicle.’” Id .; slip op at 1-2. In McJimpson , the provision defining what an uninsured motor vehicle is stated: “a hit-and-run motor vehicle of which the operator and owner are unknown and which makes direct physical contact with: (1) you or a resident relative , or (2) a motor vehicle which an insured person is occupying .” Id .; slip op at 2.

The plaintiff argued that she was covered under the policy bec ause “the policy language unambiguously provided coverage” and even if the court consider ed the language ambiguous, the language “should be interpreted in favor of the insured.” Id . The defendant countered arguing that the plaintiff was not entitled to uninsured motori st benefits because “the phrase ‘direct physical contact’ is not a mbiguous, and the undisputed facts demonstrate that the unidentified semi-truck driver ne ver made ‘direct physical cont act’ with [the] plaintiff’s vehicle.” Id . at ___; slip op at 3. The McJimpson Court held that plaintiff’s uninsured motorist coverage was not triggered because the provision was written “more narro wly, providing for coverage only where the unidentified vehicle makes ‘direct contact’ with the insured or her vehicle” and that requirement was not met. Id .; slip op at 5. The Court reasoned that the policy language w as unlike previous cases dealing with propelled objects implicatin g the substantial physical nexus test because the provision actua lly required “direct contact” b etween the uninsured motorist vehicle and the plaintiff or the plaintiff’s vehicle. Id

. The present case is analogous to McJimpson . The policy language considered in McJimpson is identical to the provision at issue in the present case. A dditionally, much like the plaintiff in McJimpson , plaintiff never struck another motor vehicle when she swerved to avoid-4- what she thought was a “deer wrapped in a tarp.” Not only was there no evidence presented that plaintiff actually saw the tarp fall from an unidentified vehic le, but plaintiff admitted that no other vehicle was involved in the accident. Moreover, Gill tes tified that plaintiff was the only vehicle involved in the accident . Further, Myers confirmed tha t plaintiff was i nvolved in a single car accident. Therefore, it is undisputed that plaintiff’s veh icle did not make “direct physical contact” with another motor vehicle. Because plaintiff did not make “direct physical contact” with an unidentified “hit-and-run vehicle,” plaintiff’s is not subject to uninsured motorist coverage under the policy issued by defendant. Accordingly, th e trial court erred when it denied defendant’s motion for summary disposition.

With respect to plaintiff’s requ est that this Court consider o rdering arbitration regarding the trial court’s denial of plaintiff’s motion to counsel arbit ration, the issue is not properly before this Court. While an appellee may urge an alternative ground f or affirmance without filing a cross-appeal, an appellee may not obtain a decision more favora ble than that rendered below without first filing a cross-appeal. Barrow v Detroit Election Com’n , 305 Mich App 649, 683; 854 NW2d 489 (2014). Here, plaintiff is seeking a more favorab le decision by requesting that the Court order arbitration without filing a cross-appeal. Hen ce, plaintiff may not challenge the trial court’s denial of her mo tion to compel arbitration. See id

.
Reversed.

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Mark T. Boonstra