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____________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JULY 3, 2001

UNIVERSAL UNDERWRITERS INSURANCE COMPANY, as Subrogee of Betten Toyota and BETTEN TOYOTA, Plaintiffs-Appellees,

v No. 114900 NANCY KNEELAND, Defendant-Appellant.

BEFORE THE ENTIRE BENCH CORRIGAN, C.J. We granted leave to det er mine whether a contractual provisionthat assigned “all responsibility for damages” to defendant while she rented a vehicle contravenes our no-fault act, MCL 500.3101 et seq ., and thereby voids the parties’ contract. We hold that the no-fault act does not preventcontracting parties from voluntarily allocating liability for collisiondamage to a rented vehicle. We thus affirm the judgment of the Court of Appeals. I. Underlying facts and procedural history While repairing defendant’s vehicle, plaintiff Betten Toyota loaned her a vehicle. Defendant and a Betten employee signed a “courtesy car agreement” that stated: 2. Renter agrees to replace gasoline used. 3. Renter agrees to pay cash for rental charge. 4. Renter agrees to assume all responsibility for damages while vehicle is in his possession. 5. Renter agrees not to sublet or loan the car to anyone. [Emphasis added.] While driving the rented vehicle, plaintiff was involved inan accident. Total collision damages amounted to $3,738.49. Betten Toyota absorbed $1,000 as a deductible; plaintiff Universal Underwriters Insurance Company, Betten’s insurer, paid the remainder. Bettenand Universal sought recovery from defendant, but she re fus ed to pay. Plaintiffs then commenced this action alleging breach of the courtesy car agreement. Uni versal seeks recovery as Betten’s subrogee of the $2,738.49 it paid to repai r the rented vehicle; Betten demands payment of the $1,000 deductible. Plaintiffs moved for summary disposition under MCR

22.116(C)(10), arguing that no genuine issue of material fact existed regarding defendant’s contractual liability. The district court instead granted summary disposition for defendant under MCR 2.116(I)(2). 1 It reliedon an unpublished Co urt of Appeals opinion to conclude that the no-fault act does not allow contractu al allocation of liability for collisiondamages. Universal Underwriters Ins Co v Stout , unpublished opinion per curiam, issued February 2, 19 96 (Docket No. 171069). The circuit court affirmed. The Court of Appeals reversed and remanded for entry of

a judgment in plaintiffs’ favor unless the dist rict court “determines that defendant has defenses that have not yet been addressed, in which case the court shall conduct proceedings consistent with” the Court of Appeals opinion. 235 Mich App 646, 662; 599 NW2d 519 (1999). It noted that while the nofault act abrogated tort liability arising from the ownership, maintenance, or use of a motor vehicle (except in certain circumstances), 2 it did not abolish contractual liability. See Kinnunen v Bohlinger , 128 Mich App 635, 638; 341 NW2d 167 (1983); Nat’l Ben Franklin Ins Co v Bakhaus Contractors, Inc , 124 Mich App 510, 513; 335 NW2d 70 (1983).

1 The rule prov ides: “If it appears that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party. ”

2 MCL 500.3135(2). 3The Court of Appeals distinguished this Court’s peremptory order in Universal Underwriters Ins Co v Vallejo , 436 Mich 873; 461 NW2d 364 (1989). Vallejo heldtha t the defendant-renter was entitled to s ummary disposition on the insurer’s claim for collision damages to a rented vehicle: Althoughthe trial court gave the plaintiff insurer numerous opportunities to explain, with specific factual allegations, how its conclusory allegationof an express or impli ed co ntract of bailment differentiated this case from any other si tuationin which a permissive user of a car is involved in a collision and therefore cannot return the car to its owner in an undamagedcondition, the plaintiff repeatedly failed to do so. Under these circumstances, the trial court correctly granted the defendant’s motion for summary disposition. By operationof the pertinent insurance statutes, e.g., MCL 257.520(b)(2); MSA 9.2220(b)(2) and MCL 500.3009; MSA 24.13009, the defendant appears to have been insured by the plaintiff against the very loss at issue in this case, since a standard automobile policy typically insures such a permissive driver “against loss from the liability imposed by law for damages arising out o f th e ownership, maintenance or use of” a motor vehicle. [ Id .] The Court of Appeals noted that, while the plaintiff in Vallejo relied on a common-law bailment theory, plaintiff here seeks recovery under the express terms of a written agreement. The Court did not read Vallejo “as a blanket rejection of all contract claims seeking to hold a permissive user responsible for damage to a borrowed vehicle. Rather, we understand the order as rejecting the insurer’s effort to convert a simple, permissive-user, tort liability case into a contract case by

4alleging an express or implied contract of bailment, without providing specific factual allegations that would support such a distinction.” Kneeland , supra at 659. The Court reasoned that Vallejo suggested the possibility of a different result where there is proof of an express contract. II. Standard of Review We review de novo a grant of summary dis positi on under MCR 2.116(C)(10). Smith v Globe Life Ins Co , 460 Mich 446, 454; 597 NW2d 28 (1999). The issue under review is a question of law, i.e., whether the no-fault act prev ents contractual assignment of liability for collision damages. We revi ew questions of law de novo. Cardinal Mooney High School v MichiganHigh School Athletic Ass’n , 437 Mich 75, 80; 467 NW2d 21 (1991). III. Contractual Interpretation Before deciding whether the courtesy car agreement contravenes public policy, we must determine what the contract says. Absent an ambiguity or internal inconsistency, contractual interpretation begins and ends with the actual words of a written agreement. Henderson v State Farm Fire & Casualty Co , 460 Mich 348, 354; 596 NW2d 190 (1999). A

co ntra ct is ambiguous if its provisions may reasonably be understood in different ways. Farm Bureau Ins Co v Nikkel , 460 Mich 558, 566; 596 NW2d 915 (1999). 5The fourth provision of the courte sy car agreement stat es: “Renter agrees to assume all responsibility fo r damages while vehicle is in his po ssessi on.” This language clearly impos es lia bility on defendant. The contract is unclear, however, regarding the extent of the shift of liability. The pr ovision refers to “damages,” but does not explicate precisely the categories of damages that defendant has agreed to pay. The general term “damages” could refer to any harm caused to a third party’s person or property, i.e., it could reach damages for which no-fault insura nce coverage is mandatory. See, e.g., MCL 500.3107, 500.3121. A shift of liability to that extent might contravene the no-fault act. Cf. State Farm v Enterprise Leasing , 452 Mich 25, 36; 549 NW2d 345 (1996). 3 Another reasonable interpretation of the contract is available, however. Black’s Law Dictionary (6th ed) defines “damages” as “[a] pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered

a loss, detriment, or injury, whether to his person, property, or rights . . . .” The parties may reasonably have intended

3 We expre ss n o view regarding whether State Farm would control the legality of the contract here. This agreement and the one addressed in State Farm are arguably different in scope and effect. We merely observe that an argument is available that the parties’ agreement, if it reaches beyo nd optional collision damages, is illegal. 6to limit the meaning of the word “damages” to losses for which a legal right of recovery is available. Anambiguity aris es also because the contract shifts liability for damages “while [the] vehicle is in [defendant’s] possession.” Damages to the vehicle itself are likely to

occur while the renter possesses the vehicle. But other types of dam ages, including wage loss and medical expenses, often arise after the rental period has ended. The contract does not clearly shift liability for the latter kinds of damages. We thus conclude that t he words of the contract may reasonably be understood in dif fere nt ways. This ambiguity requires us to assume that the parties knew the law and wished to comply with it. See 3 Corbin, Contracts, § 546, pp 170­ 171: [I]t is very commonly stated tha t whe n the terms of agreement have two possible interpretations, by one of which the agreement wouldcreate a valid contract and bythe other it wouldbe void or illegal, the former will be preferred. This is an advisory ru le of interpretation, since it is believed that the parties intend their agreement to be valid ra the r thaninvalid, lawful rather than unlawful, and honest and effective rather than fraudulent and voidable. See also Walsh v Schlecht , 429 US 401, 408; 97 S Ct 679; 50 L Ed2d 641 (1977) (“Since a general rule of construc tio n presumes the legality and enforceability of contracts, . . . ambiguously worded contracts should not be interp reted to

7render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable”); Still man v Goldfarb , 172 Mich App 231, 239; 431 NW2d 247 (1988). We follow these authorities and presume that the parties intendedto enter a valid, enforceable agreement and that the cont ract t hus does not shift liability for damages that may not legally be reallocated. IV. The dissent’s approach The dissent first construes the contract against its drafter and the drafter’s subrogee by extending the shift of liability beyond collis ion damages. The dissent would then invalidate the contract on the basis of its allegedly illegal reach. We reject that analysis. The dissent misapplies the rule requiring that contractual ambiguities be construed against the d raft er by using the rule not to interpret th e c ontract, but to invalidate it. As discussed above, courts will presume that

a contract is legal if a reasonable interpretation supporting the legality of the contract is ava ila ble. The dissent insteadconcludes that the parties meant to accomplish illegal ends by their agreement. Moreover, the dissent does not find an ambiguity regarding whether defendant’s liability extends to collision

8damages. As discussed above, the only ambiguity i s whet her the contract shifted liability beyond colli sion damages. A reasonable interpretation is not available- - -and even defendant does not contend---that she did not agree to liability for collision damages. A

proper applicationof the rule of construction against the draf ter would adopt the interpretation making defendant liable to the least extent possible, i.e., for collision damages only. Thus, regardless of whether one a ppl ies the rule of construction against the drafter or the rule presuming the legality of contracts, the same resu lt is reached: the contract shifts liability for collision damages only. V. Is the assignment of collision damages void? Having concluded that the contract shifts liability for collision damages only, we now consider whether the no-fault act prohibits the parties’ voluntary allocation of responsibility. To decide this question, we must consider relevant statutory provisions. Sun Valley Foods Co v Ward , 460 Mich 230, 236; 596 NW2d 119 (1999), articulated the proper mode of interpretation: The rules of statutory construction are well established. The foremost rule, and our primary task in construing a statute, is to discern and give effect to the intent of the Legislatu re . Mur phy v Michigan Bell Telephone Co , 447 Mich 9 3, 98; 523 NW2d 310 (1994). See also Nation v W D E ElectricCo , 454 Mich 489, 494; 563 NW2d 233 (1997). This task begins by examining the language 9of th e statute itself. The words of a statute provide “the most reliable evidence of its intent . . . .” United States v Turkette , 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enfo rc ed as written. No further judicial construction is requi red or permitted. Tryc v Michigan Veterans’ Facility , 451 Mich 129, 135; 545 NW2d 642 (1996). Our no-fault act requires owners to carry certain categories of insurance. Mandatory coverages include personal injury protection and property protection benefits. MCL 500.3107; MCL 500.3121. Other types of coverage, however, are not mandatory, but purely a matter of contr act . Collision coverage plainly falls into the latter category: our no-fault scheme does not mandate it. Additionally, § 3135 of our no-fault act, MCL 500.3135, expressly abolishes tort liability arising from the ownership, maintenance, or use of a motor vehicle (with some exceptions). The statutory language does not reflect an intent to abolish contractual liability for collisiondamages, an optional form of insurance not required by the no-fault act . See Kinnunen , supra at 639 (“Had the Legislature inte nded to abrogate contractual liability as well, the words any ‘lia bilit y arising out of the ownership, maintenance, or use of a motor vehicle’ cou ld e asily have been substituted”); Ben Franklin Ins , supra at 513 (“Nothing in the no-fault system relieves a

10motor vehicle operator of liability which he may have incurred in contract”). 4 Further, the Court of Appeals correctly ruled that Vallejo is distinguishable. The limited reasoning in that peremptory order offers little guidance. It appears, however, that the insurer in Vallejo was rel ying on a common-law bailment theory. The order does not ment ion an express written agreement. Vallejo prevents a party from converting a possible tort claim into a “contract” claim by simply all eging a bailment and thereby subverting subsection 3135(2). Those concerns do not arise where parties hav e expr essly agreed in writing to allocate their respective duties. VI. Subrogation Our grant order asked the parties to address “whether, if defendant is held to be liable for damage to the automobile at issue based on her contract with plaintiff Betten Toyota, her liability is limited to t he $1,000 deductible in Betten Toyota’s insurance policy covering that automobile on th e groundthat this was the extent of the damages suffered by

4 We emphasize that our holding is limited to contract claims for collisiondamages. We offer no view regarding the legality of a contract purporting to shift liability for other categories of damages. 11BettenToyota.” 462 Mich 911 (2000). We hold tha t dam ages are not limited to the amount of the deductible. Bettenincurred $3,738.49 in damages to its vehicle, but had to pay only $1,000; Universal paid the balance. The plain terms of Betten’s insurance policy grant Universal a right of subrogation to Betten’s cause of action against defendant: Subrogation—Youand each insured must do all in their power to preserve their rights to recover from others. Once we have made a payment under this policy, your or aninsured’s rights to recover from others become our rights . Defendant has not articulated a reason why Universal may not exercise its contractual right of subrogation. Significantly, defendant did not challenge Universal’s subrogee status below. In fact, her attorney implicitly acknowledgedUniversal’s right of subrogation during proceedings in the district court: Mr. Arndt [def ense counsel]: . . . I don’t think either one of the parties made a distinction betweenUniversal’s claim or Betten’s claim. Certainly Universal’s claim is derivative of their subragor (sic) insured Betten . I guess it would be our po sitio n that the case law and specifically Universal versus Valajo [sic] addresses both not only the insurer but the owners re spon sibility to make sure that there is a dequate protection and insurance coverage on the vehicle. I think that the case law that you’ve relied upon in determining and adjudicating the issues of liability between Universal and Kneeland are equally applicable to Bettenand Kneeland. That there would be no distinction between the two claims, whether it was insured or uninsured. [Emphasis added.]

12Defendant has thus forfeited any claim that Universal has no right of subrogation. Smith v Musgrove , 372 Mich 329, 337; 125 NW2d 869 (1964); Munson Medical Center v Auto Club Ins Ass’n , 218 Mich App 375, 388; 554 NW2d 49 (1996). VII. Conclusion The no-fault act does not invalidate the parties’ written agreement to assign liability for collisio n d amages to defendant. Universal has a right of subrogation under th e express terms of its insurance policy with Betten to seek recovery of the amount it paid to repair the rented vehicle. Accordingly, we affirm the judgment of the Court of Appeals. T AYLOR , Y OUNG , and M ARKMAN , JJ., concurred with C ORRIGAN , C.J.

13___________________________________ v S T A T E O F M I C H I G A N SUPREME COURT

UNIVERSAL UNDERWRITERS INSURANCE COMPANY, as Subrogee of Betten Toyota and BETTEN TOYOTA, Plaintiffs-Appellees, No. 114900 NANCY KNEELAND, Defendant-Appellant. CAVANAGH, J. ( dissenting ). Because the majority opinionin this case is contrary to well-established principles of contract law, I must dissent. I would reverse the decision below and reinstate summary disposition in favor of the defendant. This case presents two questions: (1) whether a party may contractua ll y assume liability for damages to a borrowed vehicle and (2) if liability can be contractually assumed, whether the defendant assumed liability pursuant to a courtesy

car agreement. I would hold that liability can b e contractually shifted, but t hat the instant courtesy caragreement cannot be enforced to impose liabi lityon the defendant. I The defendant borrowed a loaner car from Betten Toyota while Betten was servicing her vehicle. Before taking possessionof th e loaner car, the defendant was required to sign a document entitled “Courtesy Car Agreement.” The text of the agreement was as follows: Courtesy Car Agreement 1. Rental fee ONLY $28.00 per day. 2. Renter agrees to replace gasoline used. 3. Renter agrees to pay cash for rental charge. 4. Rente r ag rees to assume all responsibility for damages while vehicle is in his possession. 5. Renter agrees not to sublet or loan the car to anyone. The agreement was printed on Betten stationery. The defendant was involved inan automobile accident for whichshe bore no fault. Rather, two other vehicles collided witheach othe r, and the force of the impact pushed one of those vehicles into the loaner car. The plaintiffs are seeking to recover collision damages. Both plaintiffs assert that the defendant is liable for the full amount of damages sustained pursuant to clause 4 of the courtesy car agreement. The defendant ass ert s that Betten Toyota formed a

2bailment contract with her by loaning her a vehicle. She further argues that, pursuant to the bailment contract, she

was shielded from liability because the no-fa ult act, MCL 500.3101 et se q. , an d financial responsibility act, MCL 257.520(g), require the owner of anautomobile and the owner’s insurer to provide coverage for permissive users. According to the plaintiffs, this case sounds purely in contract. While the no-fault act abrogated tort immunity, it did not abrogate contractual liability. The plaintiffs thus contendthat the no-fault act would not bar their claims, citing Kinnunen v Bollinger, 128 Mich App 635, 638; 341 NW2d 167 (1983); Nat’l Ben Franklin Ins Co v Bakhaus Contractors , Inc , 124 Mich App 510, 513; 335 NW2d 70 (1983). The broader question posed by this case is whether a party may contractually assume liability for damages to a borrowed vehicle even though Michigan’s no-fault law, precedent, and common-law principles would normally place liability on the lender absent any contr actu al agreement to the contrary. If liability can be contractually assumed, then we must also resolve whether the defendant assumed liability pursuant to the courtesy car agreement. The genesis of the arguments r aise d by the present p arties can be traced to this Court’s decision in Universal Underwriters v Vallejo , 436 Mich 873 (1990). Vallejo was a

3peremptory rever sa l, which, in its entirety, provided as follows: In lie u of granting leave to appeal, the Augu st 2 1, 1989, judgment of the Court of Appeals is reversed [179 Mich App 637; 446 NW2d 510 (1989)], and the case is remanded to the Saginaw Circuit Court for entry of judgment infavor of the defendant. Although the trial court gave the plaintiff insurer numerous opportunities to explain, with specific factual allegations, how its conclusory allegation of an express or implied contract of bailment differentiated this case from any other situation in whicha permissive user of a car is involved in a collisionand therefore cannot returnthe c ar t o its owner in an undamaged condition, the plaintiff repeatedly failed to do so. Under these circumstances, the t rial court correctly granted the defendant's motion for summary disposition. By operation of the pertinent insurance statutes, e.g., MCL 257.520(b)(2); MSA 9.2220(b)(2) and MCL 500.3009; MSA 24.13009, the defendant appea rs to have been insured by the plaintiff against the very loss at issue in this case , since a standard automobile policy typically insures such a permissive driver “against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of” a motor vehicle. Jurisdiction is not retained. [Emphasis added.] The defendant interprets Vallejo as h ol ding that no express or implied bailment action lies against a permissive

user of a loaner vehicle. In the defendant’s view, Vallejo

was not premised on the insurer’s failure to factually establisha contractual relationship. Rather, Vallejo specifically found the lack of an express agreement to be inco nsequential. The Court held that a bailment contract couldnot supersede the insurer’s statutory duty to supply

4insurance to permissive drivers. The plaintiffs, on the other hand, argue that Vallejo is inapposite. They assert that, where the a ction against the defendant is purely for breach of contract and is not a tort act ionarising out of rights implicit in a bailmen t relationship, Vallejo an d th e no-fault act do not bar plaintiffs’ claims. Instead, the plainti ffs urge us to interpret Vallejo as determining only whether a bailment could give rise to liability. While Vallejo recognized t hat any tort liabil ity arising out of a bailment would be barred pursuant to the no-fault act, the plaintiffs posit that it did not foreclose the possibility that a defendant could be held liable if the parties a gree d to rights and responsibilities extending beyond the b ai lment situation. The plaintiffs recognize Va llejo as accepting that a bailment relationship alone would not shift liabil ityto the defendant, but they argue that Vallejo actually held only that the plaintiff failedto prove the existence of any rights beyond those that would exist in a bailment situation. II The Court of Appeals noted that the no-fault act bars tort liability but not contractual liability, and held that the defendant could be bound by her agreement to assume all responsibility for damages while the vehicle was in her

5possession. 235 Mich App 658-659. It then distinguished Vallejo from this case on the ground that Vallejo did not involve an express contract. Further, the Court expressly statedthat Vallejo was not intended to shield p ermi ssive

users from liability expressly assumed by contract. The Court wrote: [I]nany permissive user case, except the unusual one in which a bai lme nt is expressly disavowed, it can b e al leged that there is an impliedor express contract of bailment, and therefore, an enforceable contractual dut y. The Supreme Court declined to recognize such broadbasedcontractual liability in these circumstances. The Court’s express reference to the insurer’s failure to support with factual allegations its efforts to differentiate the case from any other permissive-user situation implies that if the insurer had successfully demonstrated the existence of an express contractual assumption of responsibility for damage to the vehicle, the defendant might not have been granted summary disposition. Thus, Vallejo did not say that the existence of an express contract would not differentiate the case from any other permissiveuser situation. Rat he r, it suggested that the potential different result did exist, but that the plaintiff insurer had failed to provide proof sufficient to support a different result. [235 Mich App 659-660 (emphasis in original).] After determin ing that Vallejo was not intended to bar all contract claims brought against permissive users, the Court of Ap peals concluded that plaintiffs could assert a cont rac t claim against the defendant because of her express assumption of liability. Therefore, the Court reversed the circuit court’s affirmance of summary disposition for the defendant.

6III I agree with the Court of Appeals that Vallejo should not be read as “a blanket rejection of all contract claims seeking to hold a permissive user responsible for damage to a borrowed vehicle.” 235 Mich App 659. While Vallejo limited the extent to which liability can be shiftedto a permissive driver of a loaned automobile, it did so under circumstances where the insurer had failed to assert a factual basis for its contract claim. The Court’s order recognized the general rule that a bailee must return property to his bailor in an undamaged condition. However, Vallejo then recognized that Michigan’s pertinent insurance statutes, MCL 257.520(b)(2) and MCL 500.3009, modify th e ge neral rule. Through those statutes, the Legislature chose to offset the costs and problems associated with automobile collisions by requiring that automobile owners carry insurance. Vallejo recognized tha t standard automobile policies contain language covering use by permissive drivers, and held that the pl aint iff insurer had failed to prove that liability had somehow been shifted back to the defendant. I interpret Vallejo as holding that the lender, rat he r thanthe permissive user, must pay for collision damages under th e lend er’s insurance policy unless: (1) it is proven that the policy does not extend to permissive drivers, or (2) the

7lender or insurer carries his burden of differenti atin g his

case from the usual situation where a permissive user of a car is involved in a collision. The plaintiffs’ own brief categorizes its claim as “squarely one for breach of contract.” Thus, this is not a case where the insurer refused to pay on the grounds that the driver was not covered by the terms of the policy between the insur ed and the dealer. Instead, the complaint alleged that the cont ra ct between Betten and Kneeland shifted liability to Kneeland. When she refused to pay, she allegedly breached the courtesy car agreement. Therefore, this case hinges on the second Vallejo inquiry. Pursuant to Vallejo , the plaintiffs must prove that the courtesy car agreement differentiates this case from the usual situation where a permissive user of a car is involved in a collision. The plaintiffs claim that this case can be distinguished fr om Vallejo because the instant defendant assumed al l responsibility for damages. While I agree with the plaintiffs that Vallejo does not automatically bar recovery in case s where the lender proves that the permissive driver has assumed liability pursuant to a valid contract, I do not agree that liability was shifted in the present case. The majority acknowledges the potential shift of tort liability that could occur were this Court to hold that the

8contract is unambiguous as the plaintiffs suggest. Because of the potential problem, the majority offers another “reasonable inter pre tationof the contract.” Slip op at 6. In the majority’s words, “[t]he parties may reasonably have intended to limit the meaning of the word ‘damages’ to losses for which a legal right of recovery is available.” Slip op at 7. I agree with the majority that the courtesy car agreement inthis case is ambiguous, and may be interpreted in a fashion that would avoid illegality. However, I disagree strongly withthe majority’s decision to construct a decision favorable to the plaintiffs, rather than construing the contract against the drafter, as we are bound to do. See, e.g., Vanguard Ins Co v Clarke , 438 Mich 463, 471-472; 475 NW2d 48 (1991); Raska

v

Farm Bureau Mut Ins Co , 412 Mich 355, 361-362; 314 NW2d 440 (1982). See also 2 Restatement Contracts, 2d, § 206, p 105 (“ Inchoosing among the reasonable meanings of a promi se o r agreement or a term thereof, that meaning is generally preferredwhich operates against the p artywho supplies the words”); 11 Williston, Contrac ts, § 32.12, p 471 (since the language is within the control of the drafter, it is a generally accepted principle that any ambigui ty in that language will be interpreted against the drafter); 5 Corbin, Contracts, § 24.27, pp 282-283; 17A Am Jur 2d Contracts, § 348, pp 360-361 (It is fundamental that doubtful language in

9a contract should be interpreted most strongly against the party who has selected the language). Two opposing interpretations of the courtesy car agreement are offered. Inthe p laintiffs’ view, by signing the courtesy car agreement, the defendant agreed to be an in surer against damages to the automobile. The defendant contends that she read the agreement as meaning only that she wouldbe responsible for her own negligence, and that she assumedthat the car was insured by the dealership. Here, the drafter was Betten. Construing the agreement against Betten is proper because, as the drafter, Betten had the opportunity of drafting the l anguage in a manner that avoided any ambiguity or dispute. Thus, I would resolve the courtesy caragreement in the defendant’s favor, in accordance with wellestablished contract principles. The document was a one-page form contract to which no insurer was a party and that never mentioned insurance. The dealershipnever informed the defendant that she needed to obtainher own insurance, nor did it inform the defendant that she would be liable for damages caused by the negligence of others. The courtesy car agreement also did n ot mention collis iondamages. It is not unreasonable for defendant to have assumed that she would be covered by a stan dar d automobile policy between the dealer and its insurer. In this

10respect, the present case is similar to Valle jo . While Vallejo left open the possibility that contractual liability could be shiftedto a permissive user, Vallejo also recognized that the burden was upon the plaintiff insurer to prove that liabilityh ad been so shifted. Here, the plaintiffs point only to overbroad language that in no way mentions insurance obligations. Thus, I would conclude that the plaintiff failed to bear its burden of proving that collision damages were validly shifted. Contrary to the majority’s assertion, my approachis not

a method of invalidating the contract. It is, instead, a recognitionthat, when choosing betweenvalid constructions of

anambiguous contra ct, we must choose the construction that goes against the drafter of the ambiguous language. Here, the constructionoffered by the defendant would not invalidate the

co urtesy car agreement; rather, it would limit the sco pe o f the agreement. IV The majority chooses to construe the contract in a manner that would be favorable to the plaintiffs who drafted the ambiguous contract. I cannot join the majority’s decision to find in favor of the plaintiffs when the agreement signed by the defendant contained a provision that must be interpreted as ambiguous or void against public policy.

11I would hold that the defendant is not liable under the courtesy car agreement. The plaintiffs have failed to carry their burden of establishing that a valid contract existed and of differentiating this case from the usual situation where a per missive user of a car is involved in a collision. Therefore, I would reverse and reinstate summary disposition in favor of the defendant. WEAVER and K ELLY , JJ., concurred with C AVANAGH , J.

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