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 ZIMMERMANTHOMPSON, 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UNPUBLISHED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: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.

SWARTZLE, 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 private property rights or other sound 

regulation, see Hardin, The Tragedy of the Commons, Science (1968). More 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 daughterin-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 genuine 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 testimony 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 Christopher, 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. This was not a 

marriage of convenience, but rather a marriage of love and affection in which the two spouses 

traveled together, entertained 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 

garden—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 lived, i.e., the Gleaner house. Fifth, while she received some mail at the 

Stoneham 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. When she did stay 

at the 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, as usual, the couple stayed together, and they stayed together in the

Stoneham house’s guest room.

So, the thought experiment is this—Imagine shortly before the accident in July 2015 that 

Mari had been asked under oath where and with whom she primarily resided, at the Gleaner 

house with her husband or at the Stoneham house with her son and daughter-in-law (in the guest

room)? Is 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