If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.



### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

ESTATE OF MARI ZIMMERMAN

THOMPSON, by SPERRY L. MEGERIAN, Personal Representative,

Plaintiff

- Appellee, UNPUBLISHED April 18, 2019

v No. 336483 Bay Circuit Court

UNITED SERVICES AUTOMOBILE ASSOCIATION, LC No. 15

- 003782

- CK

Defendant

- Appellant.

Before: S WARTZLE

, P.J., and M ARKEY and R ONAYNE K RAUSE

, JJ.

S WARTZLE

, P.J

. ( concurring in part, dissenting in part ).

I concur with regard to the majority’s resolution of the umbrella policy in Part V. With regard to the majority’s resolution of the main automobile policy in Part VI, I respectfully

dissent.

Thought experiments can be enlightening. They can illustrate how a society run by philosopher

- kings would devolve into a totalitarian nightmare, see Plato, The Republic , or how a public resource can be depleted in the absence of p rivate property rights or other sound regulation, see Hardin, The Tragedy of the Commons

, Science (1968). M ore concretely and

relevant here , a thought experiment can crystallize the essence of an appeal like this one

.

Based on the factual record, it is undisputed that this appeal presents a straightforward either/or proposition

— either Mari Zimmerman

- Thompson resided primarily with her husband Christopher Thompson at the Gleaner house

, or she resided primarily with her son and daughter

in

- law at the Stoneham house. There is no third option, unlike a situation where someone might have two homes in Michigan but spend the winter in Florida. Unless we are prepared to find that Mari resided nowhere, she had to reside somewhere, and the two options are the Gleaner house

or the Stoneham house.- 2

- While the majority identifies several gen uine issues of fact, I disagree that it has identified a genuine issue of material fact

— i.e., where did Mari primarily reside? MCR 2.116(C)(10). As I read the record, there is no question about where and with whom Mari resided. First, any deposition tes timony about what someone might recall about Mari’s purported intentions must be set aside as inadmissible hearsay. McCallum v Dept of Corrections

, 197 Mich App 589, 603; 496 NW2d 361 (1992)

. Second, this was a second marriage for both Mari and Christoph er, so it is quite unremarkable that each spouse would still own real property

from a prior marriage , especially given the housing crisis of the late 2000s

. T his was not a marriage of convenience, but rather a marriage of love and affection in which the t wo spouses traveled together, entertain ed together, and lived together, as the majority aptly recognizes.

Third, it is also unremarkable that Mari would visit the Stoneham house several times during a typical week , given that Mari was not employed, the houses were within several miles of each other, her son and daughter

- in

- law lived at the Stoneham house, and she loved to

g arden

— an activity that she performed at the Stoneham house, the Gleaner house

, and several

other locations

. Fourth, Mari stored some items at the Stoneham house (and her son used some of these items), but many items of clothes, jewelry, furniture, artwork, and gardening equipment

were located where she l ived, i.e., the Gleaner house. Fifth, while she received some mail at the

Sto neham house (again, unremarkable given that she used to live there and still owned it ), when she sent and received holiday and birthday cards, it was from and to the Gleaner house.

Sixth and most importantly , over the past seven or eight years, Mari spent most of her evenings at the Gleaner house with Christopher. She seldom left Christopher to stay overnight alone in part because he had a history of seizures and other health problems. W hen she did stay

at th e Stoneham house, it was with Christopher and the couple stayed in , as her son described,

the guest room

. The last time that she stayed in the Stoneham house for an extended period was

the autumn before the July 2015 accident, when she and Christopher stayed at the Stoneham

house for a couple of weeks because the hardware floors at the Gleaner house were being sanded

and refinished

. And, a s usual, the couple stayed together , and they stayed together in the

Stoneham house’s guest room

.

So , t he thought experiment is this

— Imagine s hortly before the accident in July 2015 that

Mari had been asked und er oath where and with whom she primarily reside d , at the Gleaner

house with her husband or at the Stoneham house w ith her son and daughter

- in

- law (in the guest room)? I s there really any question what her answer would have been? On this record, I

conclude that there is not.

Accordingly, I respectfully dissent from the majority’s holding with respect to the main automobile policy.

/s/ Brock A. Swartzle