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### STATE OF MICHIGAN

COURT OF APPEALS

MICHIGAN BATTERY EQUIPMENT, INC.,

Plaintiff-Appellant/Cross-Appellee, FOR PUBLICATION September 15, 2016 9:00 a.m.

v No. 326945 Genesee Circuit Court EMCASCO INSURANCE COMPANY, LC No. 2014-102661-CK

Defendant-Appellee/CrossAppellant.

Before: C AVANAGH , P.J., and S AAD and F ORT H OOD , JJ.

S AAD , J.

In this insurance coverage dis pute, plaintiff, Michigan Batter y Equipment, Inc. (Michigan Battery), appeals the trial court’s order that granted summary disposition in favor of defendant, EMCASCO Insurance Company (EMC). 1 The trial court granted summary disposition because it held that the loss was caused by wet rot which was a risk no t covered, but instead was specifically excluded from covera ge under the policy. For the reasons provided below, we affirm. 2

1 EMC filed a cross-appeal in this case. But on cross-appeal, E MC does not challenge any ruling or action by the trial court. I nstead, EMC merely argues that the trial court’s ruling should be affirmed. In these circumstances, a cross-appeal is not necess ary, even when the appellee is asserting an alternative ground to affirm. See Middlebrooks v Wayne Co , 446 Mich 151, 166 n 41; 521 NW2d 774 (1994).

2 We review a trial court’s decision on a motion for summary dis position de novo. BC Tile & Marble Co, Inc v Multi Bldg Co, Inc , 288 Mich App 576, 583; 794 NW2d 76 (2010). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the com plaint. Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). In deciding a motion under MCR 2.116(C)(10), the trial court considers affidavits, pl eadings, depositions, admissions, and any other documentary evidence submitted by the parties in the light most favorable t o the nonmoving party. Id. “Summary disposition pursuant to MCR 2.116(C)(10) is proper whe n there is no genuine issue of material fact and the moving party is entitled to judgment a s a matter of law.” McCoig Materials, LLC v Galui Constr, Inc , 295 Mich App 684, 693; 818 NW2d 410 (2012). Also, the-2- I.

BRIEF FACTS AND GENERAL PRINCIP LES REGARDING INSURANCE CONTRACT S

Due to prolonged water infiltration through deteriorated rubbe r grommets in the roof, the roof trusses of Michigan Battery’s warehouse rotted. In Januar y 2014, snow and ice accumulated on the roof, which caused the rotted trusses to spl it, crack, and fall down a few feet. The question on appeal is whether EMC’s insurance policy covers the damage to Michigan Battery’s roof. To resolve this dispute, we must examine the t erms of the insurance policy and determine whether the damage is excluded from coverage under an y exclusion. Insurance policies must be enforced in accordance with their terms. Henderson v State Farm Fire & Cas Co , 460 Mich 348, 354; 596 NW2d 190 (1999). “The language of ins urance contracts should be read as a whole and must be construed to give effect to every w ord, clause, and phrase.” McGrath v Allstate Ins Co , 290 Mich App 434, 439; 802 NW2d 619 (2010) . “[U]nless a cont ract provision violates law or one of the traditional defenses to th e enforceability of a contract applies, a court must construe and apply unambiguous contract p rovisions as written.” Rory v Continental Ins Co , 473 Mich 457, 465; 703 NW2d 23 (2005). To determine the inte nt of the parties, a court must first ascer tain whether the policy provid es coverage to the insured. Hunt v Drielick , 496 Mich 366, 373; 852 NW2d 562 (2014). Then, it must determ ine “whether that coverage is negated by an exclusion.” Id . “While it is the insured’s burden to establish that his claim falls within the terms of the policy, the insurer should bear the burden of proving an absence of coverage.” Id . (quotation marks and citations omitted). Where a contract pr ovision is ambiguous, the contract is construed in favor of the insured. Henderson , 460 Mich at 354. However, “[a] court should not create ambiguity in an insurance policy where the terms of the contract are clear and precise.” Id . Instead, contract terms shoul d be interpreted using their pl an and ordinary meanings. Id

.

II.

ALL-RISK POLICY AND EX CLUSION FOR WET ROT

Michigan Battery insured its property with an “all-risk” polic y issued by EMC on its warehouse and attached offices. “Notwithstanding the presence of an ‘all-risks’ provision in an insurance policy, the loss will not be covered if it comes with in any specific exclusion contained in the policy.” 10A Couch, Insurance, 3d § 148.68. Here, the policy provides for various exclusions, of which two were the focus of the arguments at the trial court: (1) the exclusion for damage caused by collapse and (2) the exclusion for damage caus ed by fungus, wet rot, dry rot, and bacteria. Such exclusionary clauses are strictly construed in favor of the insured. AutoOwners Ins Co v Churchman , 440 Mich 560, 567; 489 NW2d 431 (1992). However, “[c]lear and specific exclusions must be given effect,” and “coverage un der a policy is lost if any exclusion within the policy applie s to an insured’s particular claims.” Id.

interpretation of an insurance contract and whether an ambiguit y exists are questions of law that we review de novo. Wilkie v Auto-Owners Ins Co , 469 Mich 41, 47; 664 NW2d 776 (2003).-3- Because the language of the policy is controlling, we turn our attention to the rot exclusion in the policy, whic h provides in pertinent part:

B. Exclusions

1. We will not pay for loss or damage caused directly or indirec tly by any of the following. Such loss or damage is excluded regardless of any o ther cause or event that contributes concurre ntly or in any sequence to the l oss.

* * *

h. “Fungus,” Wet Rot, Dry Rot And Bacteria

Presence, growth, proliferati on, spread or any activity of “fun gus,” wet or dry rot or bacteria.

But if “fungus,” wet or dry rot or bacteria results in a “speci fied cause of loss,” we will pay for the loss or damage caused by that “speci fied cause of loss.”

This exclusion does not apply:

1. When “fungus,” wet or dry rot or bacteria results from fire o r lightning; or

2. To the extent that coverage is provided in the Additional Coverage—Limited Coverage For “Fungus,” Wet Rot, Dry Rot And Bacteria with respect to loss or damage by a cause of loss other than fire or lightning.

Exclusions B.1.a. through B.1.h. apply whether or not the loss event results in widespread damage or affects a substantial area.

As the trial court properly held, the plain language of the abo ve-quoted insurance policy provisions excludes from coverage damage caused by fungus, wet rot, dry rot, and bacteria. However, this exclusion has exceptions: (1) when the fungus, w et rot, dry rot, or bacteria results from fire or lightning; and (2) to the extent that coverage is provided in the “Additional Coverage” provision; and (3) wh ere the fungus, rot, or bacteria “results in a ‘specified cause of loss.’ ” As a result, because there is no question that wet ro t caused the damage at issue, we must determine if any of excepti ons to the rot exclusion applie s.
The first exception does not apply, because there is nothing o n the record to show, and the parties do not argue, that the wet rot here was the result from fire or lightning. Indeed, the record shows that the wet rot w as caused by water leakage throu gh grommets located in the roof.

Additionally, the second exception related to the rot being co vered under the “Additional Coverage” does not apply. Under this “Additional Coverage,” da mage from fungus, rot, and bacteria is covered where the f ungus, rot, or bacteria is the r esult of (1) “a specified cause of-4- loss” other than fire or lightning or (2) flood. The term “spe cified causes of loss” is defined as meaning

fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire-extinguishing equ ipment; sinkhole collapse; volcanic action; falli ng objects; weight of snow, ice or sleet; water damage.

And “water damage” is further defined as

accidental discharge or leakage of water or steam as the direct result of the breaking apart or cracking of a plumbing, heating, air conditio ning or other system or appliance (other than a sump system including its rel ated equipment and parts), that is located on the descried premises and contai ns water or steam.

Here, there is nothing on the record to establish, and the par ties do not argue, that the wet rot in the warehouse was the result of or caused by a specified cause of loss. Likewise, there is nothing in the record to support that the damage was caused by flood. As already noted, the wet rot damage was caused by water intrusion through deteriorated r ubber grommets in the roof. Accordingly, because the wet rot was not the result of a “speci fied cause of loss” and was not the result of flood, the “Additional Coverage” provision simply doe s not apply.

Similarly, third exception is not implicated. The rot in the trusses resulted in the roof and trusses to fall down a couple f eet, which, importantly, is not one of the enumerated specified causes of loss.

Therefore, the wet rot and resulting damage is not covered und er the policy because it is excluded under the general excl usion in section B.1.h and none of the exclusion’s exceptions applies. In brief, the policy plainly identifies the risks tha t EMC was willing to, and did contract to cover, and unfortunately for Michigan Battery, wet rot is no t one of those risks. Indeed, this risk was specifically excluded fr om coverage, and had Michigan Battery desired to obtain coverage, it could have purchased a rider for this specific los s. Consequently, because EMC identified wet rot as a particul ar type of risk that is was unw illing to insure, Michigan Battery cannot recover under the policy. See Churchman , 440 Mich at 567 (“It is impossible to hold an insurance company liable for a ri sk it did not assume.”). And because this exclusion specifically precludes coverage, we need not address how any other exclusion or any other “additional coverage” in the policy applies. See id. (“[C]overage under a policy is lost if any exclusion within the policy applies to an insured’s particular claims.”); Brown v Farm Bureau Gen Ins Co of Mich , 273 Mich App 658, 661; 730 NW2d 518 (2007).

Accordingly, we affirm the trial court’s grant of summary disp osition in favor of EMC. EMC, as the prevailing party, may tax costs pursuant to MCR 7.2 19.

/s/ Henry William Saad /s/ Mark J. Cavanagh /s/ Karen M. Fort Hood