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### STATE OF MICHIGAN

COURT OF APPEALS

PANSY REID,

Plaintiff-Appellee, UNPUBLISHED January 21, 2016

v No. 323673 Wayne Circuit Court MICHIGAN PROPERTY & CASUALTY GUARANTY ASSOCIATION, LC No. 13-014662-NI

Defendant-Appellant.

Before: S TEPHENS , P.J., and H OEKSTRA and S ERVITTO , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 an order denying its moti on for summary disposition in this no-fault action. Because a material question of fact r emains, the trial court properly denied defendant’s motion for s ummary disposition and we affirm

. Plaintiff brought the present l awsuit, seeking benefits under a no-fault policy for injuries she sustained in an automobile accident on November 14, 2012. At the time of the accident plaintiff lived with her daughter and son-in-law, Melissa and P hilip Parham, and she had been living with them for several years. Further, when the accident occurred, she was driving a vehicle owned and registered by Philip. The Parhams obtained n o-fault insurance through American Fellowship Mutual Insurance Company (AFMIC), which dis solved in 2013 at which time defendant assumed AFMIC’s underwriting files. When comple ting applications for insurance in 2008 and 2009, Philip answered “no” when asked if there were “additional licensed residents” in the household or “additional drivers” of the vehi cles. It is undisputed that plaintiff lived with the Parhams when Philip completed these forms and th at she was a licensed driver.

Based on Philip’s failure to report plaintiff’s presence in th e home, defendant moved for summary disposition in this case, arguing that the insurance ap plications completed by Philip contained material misrepresentations or fraudulent statements that rendered the policy void ab

1 Reid v Mich Prop & Cas Guaranty Ass’n , unpublished order of the Court of Appeals, entered March 16, 2015 (Docket No. 323673).-2- initio . Following a hearing, the trial court denied defendant’s moti on finding “that maybe there is a sliver of a question of fact here in this case.” Defendan t now appeals as on leave granted.

On appeal, defendant argues th at, given plaintiff’s undisputed residency in the Parham’s home, there is no genuine issue of material fact that Philip Pa rham made fraudulent misrepresentations on the insurance forms, thus making the poli cies void ab initio

.
This Court reviews de novo decisi ons on motions for summary di sposition. Sherry v East Suburban Football League , 292 Mich App 23, 26; 807 NW2d 859 (2011). Summary dispositio n under MCR 2.116(C)(10) is appropriate “when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. “In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissi ons, or other documentary evide nce.” Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). “The burden then shi fts to the nonmoving party to demonstrate that a genuine issue of disputed fact exists for trial.” McCoig Materials, LLC v Galui Const, Inc , 295 Mich App 684, 693; 818 NW2d 410 (2012). The affidavits, pleadings, depositions, admissions, and other documentary evidence submitt ed by the parties must be viewed in a light most favorab le to the nonmoving party. Sherry , 292 Mich App at 27. “There is a genuine issue of material fact when reasonable minds could di ffer on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP
, 481 Mich 419, 425; 751 NW2d 8 (2008).

Generally speaking, under Michig an law, “[i]nsurance policies are contracts and, in the absence of an applicable statute, are subject to the same contr act construction principles that apply to any other species of contract.” Titan Ins Co v Hyten , 491 Mich 547, 554; 817 NW2d 562 (2012) (citation and quotation marks omitted). Therefore, unless prohibited by statute, insurers may use common-law defenses to avoid policies, includi ng duress, waiver, estoppel, fraud, and unconscionability. Id. at 554-555. Fraud includes frau dulent misrepresentations, innocent misrepresentations, and silent fraud. Id. To establish a claim of fraudulent misrepresentations, such as defe ndant alleges in the present ca se, the party alleging fraud must show:

(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessl y, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that p laintiff acted in reliance upon it; and (6) that he thereby suffered injury. [ Id. (citation omitted).]

In the context of an application for insurance, a misrepresenta tion is “material” when “communication of it would have had the effect of substantially increasing the chances of loss insured against so as to bring a bout a rejection of the risk or the charging of an increased premium.” Oade v Jackson Nat Life Ins Co of Mich , 465 Mich 244, 254; 632 NW2d 126 (2001); see also Montgomery v Fid & Guar Life Ins Co , 269 Mich App 126, 129; 713 NW2d 801 (2005). An insurer seeking to avoid a policy based on allegations of fr aud or material misrepresentations, has the burden of proving the occurrence of fraud or material m isrepresentations. Stein v HomeOwners Ins Co , 303 Mich App 382, 391; 843 NW2d 780 (2013); Szlapa v Natl Travelers Life Co , 62 Mich App 320, 325; 233 NW2d 270 (1975).-3- In this case, the trial court p roperly denied defendant’s moti on for summary disposition because defendant failed to satis fy its initial burden of bring ing forth evidence to establish that any misrepresentation by Philip was “material.” That is, defen dant offers no evidence to establish that knowledge of plaintiff’s presence in the home wo uld have led defendant to reject Philip’s application for insuran ce or to charge a higher premiu m for the policy. Cf. Montgomery
, 269 Mich App at 129 (“Because defendant's underwriter stated in his affidavit that defendant would not have issued the policy if it had been aware of the de cedent's smoking habit, the misrepresentation about the decedent's smoking habit was materi al.”). In the absence of such evidence, defendant has failed to support its position that “ma terial” misrepresentations rendered the policy voidable ab initio and the trial court thus properl y concluded that a material qu estion of fact remained. See id. ; see also Meyer v City of Ctr Line , 242 Mich App 560, 575; 619 NW2d 182 (2000) (finding summary disposition improperly granted wher e the moving party failed to support is position). In sum, the trial court properly denied defendant’s motion for summary disposition under MCR 2.116(C)(10). 2

Affirmed.

/s/ Cynthia Diane Stephens /s/ Joel P. Hoekstra /s/ Deborah A. Servitto

2 On appeal, in light of Titan Ins Co , 491 Mich at 559-571, the parties also discuss whether MCL 257.520(f)(1) or plaintiff’s status as an innocent third-party precluded defendant from attempting to avoid the policy on the basis of Philip’s misrepresentations . Similar issues are currently before this Court on remand for consideration as on leave grant ed. See Bazzi v Sentinel Ins Co
, 497 Mich 886; 854 NW2d 897 (2014). Having determined that defe ndant was not entitled to summary disposition, we find it unnecessary to consider these a dditional issues in this case.