If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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

RAYCHEL BUTLER,

Plaintiff-Appellee,

UNPUBLISHED

February 1, 2024

v No. 363695

Wayne Circuit Court

TERRELL GLENN LANE, GLENECIA LANE, 

JOHN DOE, PROGRESSIVE MARATHON 

INSURANCE COMPANY, MICHIGAN 

ASSIGNED CLAIMS PLAN, MICHIGAN 

AUTOMOBILE INSURANCE PLACEMENT 

FACILITY, and WESTFIELD INSURANCE 

COMPANY,

LC No. 21-004125-NI

Defendants,

and

MEMBERSELECT INSURANCE COMPANY,

Defendant-Appellant.

Before: CAVANAGH, P.J., and RICK and PATEL, JJ.

PER CURIAM.

In this action to recover uninsured motorist benefits, defendant MemberSelect Insurance 

Company appeals by leave granted1an order denying its motion for partial summary disposition

premised on the ground that plaintiff failed to comply with a condition precedent. We reverse and 

remand this matter for proceedings consistent with this opinion.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arose out of a motor vehicle accident that occurred on January 20, 2021. Plaintiff 

was sitting in her parked vehicle when a vehicle driven by an unknown driver allegedly struck her 

vehicle and fled. Plaintiff reported the accident to the police nine days later, on January 29, 2021. 

 

1 Butler v Lane, unpublished order of the Court of Appeals, entered April 25, 2023 (Docket No. 

363695).
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Subsequently, plaintiff filed this lawsuit alleging that defendant wrongfully refused to pay 

uninsured motorist (UM) benefits. Defendant responded that plaintiff was not entitled to coverage 

because she breached the insurance policy by failing to perform a condition precedent, which was 

that she makes a written report of the hit-and-run accident within 24 hours to local police.

Defendant moved for partial summary disposition under MCR 2.116(C)(8) and (C)(10). 

Plaintiff responded, claiming that the insurance policy was ambiguous because of the location of 

the condition-precedent language in the policy and because it did not list any consequences for 

failing to satisfy the 24-hour notice requirement. The trial court found in favor of plaintiff and 

denied defendant’s motion for partial summary disposition, concluding that the terms of the 

insurance policy were ambiguous and unreasonable. Defendant moved for reconsideration, which 

the trial court denied. This appeal followed.

II. DISCUSSION

Defendant argues that the trial court erred when it denied its motion for partial summary 

disposition because plaintiff failed to meet the insurance policy’s condition precedent, which 

required her to report the hit-and-run accident to law enforcement within 24 hours to receive 

insurance benefits. We agree.

A. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition to 

determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 

Mich 109, 118; 597 NW2d 817 (1999). Because defendant relied on documents outside the 

pleadings in support of its motion, we consider the motion as brought under MCR 2.116(C)(10). 

See Spiek v Mich Dep’t of Transportation, 456 Mich 331, 338; 572 NW2d 201 (1998); Silberstein 

v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. 

In evaluating a motion for summary disposition brought under this subsection, a 

trial court considers affidavits, pleadings, depositions, admissions, and other 

evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to 

the party opposing the motion. [Maiden, 461 Mich at 120.]

The moving party is entitled to judgment as a matter of law when the evidence submitted fails to 

establish a genuine issue regarding any material fact. Id. “A genuine issue of material fact exists 

when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue 

upon which reasonable minds might differ.” Southfield Ed Ass’n v Bd of Ed of Southfield Pub Sch, 

320 Mich App 353, 361-362; 909 NW2d 1 (2017) (quotation marks and citation omitted). We 

also review de novo as questions of law the interpretation and construction of insurance contracts. 

Citizens Ins Co v Secura Ins, 279 Mich App 69, 72; 755 NW2d 563 (2008).

B. LAW AND ANALYSIS

This case concerns UM benefits. Because UM benefits are not required by statute, and are 

instead an optional coverage, “the rights and limitations of such coverage are purely contractual . 

. . .” Rory v Continental Ins Co, 473 Mich 457, 465-466; 703 NW2d 23 (2005). This means that 

the terms of the policy control whether such benefits are available. Andreson v Progressive 
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Marathon Ins Co, 322 Mich App 76, 84-85; 910 NW2d 691 (2017) (citation omitted). In other 

words, interpretation of the insurance policy, which is the contract between the insurer and the 

insured, dictates the circumstances under which UM benefits will be provided. Dawson v Farm 

Bureau Mut Ins Co of Mich, 293 Mich App 563, 568; 810 NW2d 106 (2011) (citation omitted).

Contract construction principles apply to the interpretation of the insurance policy as it is 

a contractual agreement between the parties. Hastings Mut Ins Co v Safety King, Inc, 286 Mich 

App 287, 291; 778 NW2d 275 (2009). The insurance policy is read as a whole, according the 

terms their plain and ordinary meaning, to determine and effectuate the intentions of the parties. 

Id. at 292. An unambiguous contract must be enforced as written, without judicial construction,

because it reflects the parties’ intent as a matter of law. Id. A “ ‘mere judicial assessment of 

‘reasonableness’ is an invalid basis upon which to refuse to enforce contractual provisions.’ ” 

Dawson, 293 Mich App at 569, quoting Rory, 473 Mich at 470. “The reason [for this] is clear: It 

is not the province of the judiciary to rewrite contracts to conform to the court’s liking, but instead 

to enforce contracts as written and agreed to by the parties.” Dawson, 293 Mich App at 569.

First, we consider whether the 24-hour reporting requirement is a condition precedent to 

receiving UM benefits. “A condition precedent . . . is a fact or event that the parties intend must 

take place before there is a right to performance.” Harbor Park Market, Inc v Gronda, 277 Mich 

App 126, 131; 743 NW2d 585 (2007) (quotation marks and citation omitted). “If the condition is 

not satisfied, there is no cause of action for a failure to perform the contract.” Id. “A condition 

precedent is distinguished from a promise in that it creates no right or duty in itself, but is merely 

a limiting or modifying factor.” Mikonczyk v Detroit Newspapers, Inc, 238 Mich App 347, 350; 

605 NW2d 360 (1999) (quotation marks and citation omitted).

The first page of the insurance policy states: “This policy is a legal contract between you 

(the policyholder) and us (the company).” The insurance policy then instructs: “A person 

claiming . . . Uninsured and Underinsured Motorists Bodily Injury Coverage . . . must 

promptly . . . make a written report of a hit-and-run accident within 24 hours to local law 

enforcement[.]” The policy continues: “[I]f it is shown that it is not reasonably possible to give 

such notice within the prescribed time . . . notice must be given as soon as it is reasonably 

possible.” This language plainly sets, as a condition precedent, an obligation that plaintiff must 

meet to receive UM benefits. The condition requires the insured to report the accident to police 

within 24-hours, or if that is not reasonably possible, as soon as it is reasonably possible. That is, 

before plaintiff has a right to performance by defendant, this event must take place. See Harbor 

Park Market, Inc, 277 Mich App at 131. Plaintiff does not dispute that she failed to report the 

alleged hit-and-run accident to police within 24 hours.

Next, we consider whether the condition precedent is ambiguous. “An insurance contract 

is ambiguous when its provisions are capable of conflicting interpretations.” Klapp v United Ins 

Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003) (quotation marks and citation 

omitted). Similarly, “if two provisions of the same contract irreconcilably conflict with each other, 

the language of the contract is ambiguous.” Id. “Courts may not impose an ambiguity on clear 

contract language.” Coates v Bastian Bros, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007). 

“Plain and unambiguous contract language cannot be rewritten by the Court under the guise of 

interpretation, as the parties must live by the words of their agreement.” Harbor Park Market, 277 

Mich App at 130-131 (quotation marks and citation omitted). “Whether a contract is ambiguous 

is a question of law.” Coates, 276 Mich App at 504. It is only when the contractual language is 

ambiguous that its meaning becomes a question of fact. Id.
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Plaintiff contends that the condition precedent is ambiguous because the UM section of the 

policy states: “Subject to the Definitions, Exclusions, Conditions and Limits of Liability of this 

policy, we will pay compensatory damages which an insured person is legally entitled to recover 

from the owner or operator of an uninsured motor vehicle because of bodily injury[.]” And, 

plaintiff argues, the 24-hour-reporting-to-police requirement is not specifically stated in that 

section of the policy. But the first page of the insurance policy, as discussed above, sets forth the 

conditions that must be met to claim benefits under the insurance policy—one of which is the 24-

hour-reporting requirement. And the UM section of the policy specifically states, as plaintiff 

acknowledges, that coverage is “[s]ubject to the . . . Conditions . . . of this policy . . . .” There are 

no conflicting interpretations of this condition. See Klapp, 468 Mich at 467. Simply because the 

condition precedent is not repeated in the text of the UM section does not make it ambiguous. Our 

Supreme Court has held: “[A]n insurance policy must be read as a whole to determine and 

effectuate the parties’ intent.” Hastings Mut Ins Co, 286 Mich App at 292. Reading the policy as 

a whole shows the word “conditions” in the UM coverage section is an umbrella term—under 

which are all conditions in the policy, including the 24-hour-reporting condition precedent. The 

language of the contract establishes the conditions precedent, and binds plaintiff to all of them. 

These sections of the policy are in harmony, and there is no ambiguity regarding the reporting 

requirement.

Plaintiff also claims that the policy was ambiguous because its language did not explicitly 

exclude coverage as a consequence for not meeting the 24-hour reporting requirement. However, 

the absence of a specified or identified consequence is immaterial and does not render the policy 

ambiguous. The effect of failing to satisfy a “condition precedent” of a contract is clear—such 

failure relieves defendant of the responsibility to perform its obligation under the contract. See 

Harbor Park Market, Inc, 277 Mich App at 131. Therefore, the trial court erred in holding that 

the terms of the policy were ambiguous.

The trial court also erred by applying its own assessment of the condition precedent’s 

reasonableness to deny defendant’s motion for partial summary disposition. At the motion 

hearing, the trial court noted it would have enforced the policy’s provisions had plaintiff waited 

six months to report the accident. The trial court opined that allowing plaintiff to report the 

accident several months later would have been too long. At the same time, the trial court implied 

that the 24-hour reporting requirement was too short. In its order denying defendant’s motion for 

reconsideration, the trial court also stated: “[T]he reporting requirement in this case was 24 hours, 

which the Court finds was unreasonable.” The trial court did not explain why the requirement was 

unreasonable. Rather, it inserted its own assessment of the provision’s reasonableness. This was 

error.

This approach, where judges divine the parties’ reasonable expectations and 

then rewrite the contract accordingly, is contrary to the bedrock principle of 

American contract law that parties are free to contract as they see fit, and the courts 

are to enforce the agreement as written absent some highly unusual circumstance, 

such as a contract in violation of law or public policy. [Wilkie v Auto-Owners Ins 

Co, 469 Mich 41, 51-52; 664 NW2d 776 (2003).]

Plaintiff did not raise any contractual defenses, nor did she argue that the policy violated 

law or public policy. The trial court simply determined sua sponte that the 24-hour reporting 

provision was unreasonable because it was impliedly too short. The trial court lacked the authority 

to make such a determination. “ ‘[T]he judiciary is without authority to modify unambiguous 
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contracts or rebalance the contractual equities struck by the contracting parties because 

fundamental principles of contract law preclude such subjective post hoc judicial determinations 

of ‘reasonableness’ as a basis upon which courts may refuse to enforce unambiguous contractual 

provisions.’ ” Holmes v Holmes, 281 Mich App 575, 594; 760 NW2d 300 (2008), quoting Rory, 

473 Mich at 461. Simply stated, a “mere judicial assessment of ‘reasonableness’ is an invalid basis 

upon which to refuse to enforce contractual provisions.” Dawson, 293 Mich App at 569 (quotation 

marks and citation omitted). Consequently, the trial court erred when it substituted its own 

assessment of the condition precedent’s reasonableness to deny defendant’s motion for partial 

summary disposition.

Plaintiff argues for the first time on appeal that defendant needed to establish actual 

prejudice before denying plaintiff insurance benefits as our Supreme Court held in Koski v Allstate 

Ins Co, 456 Mich 439, 444; 572 NW2d 636 (1998). Plaintiff’s argument is without merit. As our 

Supreme Court held in DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 362; 817 NW2d 

504 (2012), “an unambiguous notice-of-claim provision setting forth a specified period within 

which notice must be provided is enforceable without a showing that the failure to comply with 

the provision prejudiced the insurer.” But, the DeFrain Court held, a prejudice requirement may 

be imposed when the notice provision does not set forth a specific temporal requirement, i.e., when 

a notice provision requires notice “immediately” or “within a reasonable time,” as was the 

circumstance in Koski. Id. at 375. However, in this case, the provision at issue set forth a clear 

and specific time period within which the insured was to make a written report of a hit-and-run 

accident to local law enforcement—within 24 hours. As the DeFrain Court explained, “Because 

providing UM coverage is optional and not statutorily mandated under the no-fault act, the policy 

language alone controls the circumstances entitling a claimant to an award of benefits.” Id. at 367. 

If we were to impose a prejudice requirement where none exists, as requested by plaintiff here, we 

would be disregarding controlling legal authority of our Supreme Court and frustrating the parties’ 

right to contract freely—as the DeFrain Court cautioned against. Id. at 368. Therefore, we reject 

plaintiff’s argument.

In conclusion, the trial court erred when it denied defendant’s motion for partial summary 

disposition because plaintiff failed to meet a condition precedent of the insurance policy. We 

reverse the trial court’s order and remand with instructions to enter an order granting defendant 

partial summary disposition consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Michelle M. Rick

/s/ Sima G. Patel