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STATE OF MICHIGAN 

COURT OF APPEALS 

MICHIGAN INSURANCE COMPANY, 

 Plaintiff-Appellee, 

UNPUBLISHED 

October 21, 2014 

v No. 315837 

Chippewa Circuit Court 

CHANNEL ROAD CONSTRUCTION, INC., 

d/b/a CONSTRUCTION SERVICES, INC., OF 

DRUMMOND ISLAND, 

LC No. 12-012243-CK 

 Defendant-Appellant, 

and 

CITIZENS INSURANCE COMPANY and 

FRANKENMUTH MUTUAL INSURANCE 

COMPANY, 

 Defendants-Appellees, 

and 

MARK WENGER and CYNTHIA WENGER, 

 Defendants. 

MICHIGAN INSURANCE COMPANY, 

 Plaintiff-Appellee, 

v 

CHANNEL ROAD CONSTRUCTION, INC., 

d/b/a CONSTRUCTION SERVICES, INC., OF 

DRUMMOND ISLAND, 

 Defendant, 

No. 315859 

Chippewa Circuit Court 

LC No. 12-012243-CK 

 
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and 

CITIZENS INSURANCE COMPANY and 

FRANKENMUTH MUTUAL INSURANCE 

COMPANY, 

 Defendants-Appellees, 

and 

MARK WENGER and CYNTHIA WENGER, 

 Defendants-Appellants. 

Before: MURPHY, C.J., and SAWYER and M. J. KELLY, JJ. 

PER CURIAM. 

 In this consolidated case, defendants Channel Road Construction and Mark and Cynthia 

Wenger appeal as of right from an order of the circuit court granting summary disposition 

according to MCR 2.116(C)(10) (no genuine issue of material fact), in favor of plaintiff 

Michigan Insurance Company, and defendants Citizens Insurance Company and Frankenmuth 

Mutual Insurance Company.1 We affirm. 

 Defendant Channel Road Construction assembled a log home for defendants Mark and 

Cynthia Wenger on their property on Drummond Island. In 2011, about five years after moving 

in, the Wengers discovered that water had intruded into the home causing damage. The Wengers 

stated that they paid $65,000 to repair the damage and expected to pay an additional $10,600. 

The Wengers obtained a home inspection by Thomas Pendry, who concluded that defendant 

Channel Road Construction’s failure to install metal flashing above windows and failure to angle 

the window sill down from the window allowed water behind the exterior finish of the home. 

Plaintiff’s home inspector, John Cuth, concluded that defendant Channel Road Construction’s 

failure to install metal flashing and proper window sills caused water damage around seven 

windows and a wall beneath adjoining roof sections. 

 The Wengers filed a complaint against defendant Channel Road Construction, alleging 

that it failed to properly install window sills and failed to install metal flashing around the 

windows, causing gradual water damage to their home. Plaintiff provided insurance to defendant 

 

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 The trial court granted summary disposition under MCR 2.116(I)(2), judgment to the party 

opposing the moving party, after the Wengers moved for summary disposition under MCR 

2.116(C)(10). Frankenmuth Mutual Insurance also filed for summary disposition according to 

MCR 2.116(C)(10). Citizens Insurance moved for summary disposition according to MCR 

2.116(C)(10) and MCR 2.116(I)(2). 
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Channel Road Construction Company beginning December 31, 2007, until at least December 31, 

2011. Plaintiff asserted that Citizens Insurance provided insurance to Channel Road 

Construction through December 31, 2005, and that Frankenmuth Mutual provided insurance to 

defendant Channel Road Construction from December 31, 2005, to December 31, 2007. 

Plaintiff filed a complaint for declaratory judgment. A provision of the policy stated that 

plaintiff insured property damage caused by an “occurrence,” which as “an accident, including 

continuous or repeated exposure to substantially the same general harmful conditions.” The 

policy excluded from coverage property damage to property “that must be restored, repaired or 

replaced because ‘your work’ was incorrectly performed on it.” The policy also excluded 

property damage arising out of a “defect, deficiency, inadequacy, or dangerous condition in 

‘your product’ or ‘your work.’ ” Plaintiff requested the trial court to find that plaintiff’s policy 

for Channel Road Construction did not apply because damage to the Wenger’s home was not an 

accidental “occurrence” as defined by the policy. 

 The Wengers moved for summary disposition, arguing that plaintiff’s policy covered 

Channel Road Construction’s liability for damages because the damage was caused by water 

intrusion occurrences and no exclusions applied. Channel Road Construction concurred with the 

motion. Frankenmuth Mutual moved for summary disposition, arguing that the Wengers took 

possession of their home prior to the coverage period under its insurance policy, and that the 

damage was not a result of an “occurrence.” Citizens Insurance moved for summary disposition, 

concurring with the argument made by plaintiff and Frankenmuth Mutual. At a hearing on 

motions for summary disposition, the insurance companies agreed that no insurance covered 

Channel Road Construction in its lawsuit with the Wengers. The Wengers argued that the 

property damage was covered by insurance because of the accidental “occurrence” of water 

damaging the property from 2005 to 2011 through the defective window finishes. They argued 

that the policies of plaintiff and Frankenmuth Mutual were in place until the damage was 

discovered. 

 The trial court found the damage was caused by the work product of Channel Road 

Construction, and was not caused by an accident. The trial court found that plaintiff, 

Frankenmuth Mutual, and Citizens Insurance “had no duty to indemnify or defend Channel Road 

Construction” for claims arising from the construction of the Wenger home. The trial court also 

denied defendant Frankenmuth Mutual’s motion for attorney fees. The Wengers and Channel 

Road Insurance argue on appeal that the trial court erred in granting summary disposition 

because the defective workmanship causing property damage was an “accident” and 

“occurrence” according to the policy language because the damage was to the “property of 

others.” A trial court’s determination of a motion for summary disposition is reviewed de novo. 

Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). 

 When reviewing a motion brought under MCR 2.116(C)(10), a court considers the 

affidavits, depositions, pleadings, admissions, and other evidence submitted by the parties in the 

light most favorable to the non-moving party. Rose v Nat’l Auction Group, Inc, 466 Mich 453, 

461; 646 NW2d 455 (2002). Summary disposition is appropriate if there is no genuine issue 

regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. 

 An insurance policy is a contract between the insurer and the insured, and a court must 

determine and enforce the meaning of the policy language. Radenbaugh v Farm Bureau Gen Ins 
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Co of Mich, 240 Mich App 134, 138-139; 610 NW2d 272 (2000). An insured must prove 

insurance coverage, while the insurer must prove exclusions to coverage. Heniser v 

Frankenmuth Mut Ins, 449 Mich 155, 161 n 6; 534 NW2d 502 (1995). The first step in 

interpretation of an insurance policy is a determination of coverage according to the general 

insurance agreement. Auto-Owners Ins Co v Harrington, 455 Mich 377, 382; 565 NW2d 839 

(1997). 

 Here, plaintiff’s policy for Channel Road Construction provided, in relevant part as 

follows: “We will pay those sums that the insured becomes legally obligated to pay as damages 

because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have 

the right and duty to defend the insured against any ‘suit’ seeking those damages.” An 

“occurrence,” necessary to trigger insurance coverage, was defined in the policy as “an accident, 

including continuous or repeated exposure to substantially the same general harmful 

conditions.”2

 This Court has analyzed similar provisions and defined an accident as “an 

undesigned contingency, a casualty, a happening by chance, something out of the usual course of 

things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Frankenmuth Mut 

Ins Co v Masters, 460 Mich 105, 114; 595 NW2d 832 (1999) (citations omitted) 

 “[T]he purpose and intent of [a general liability] insurance policy is to protect the insured 

from liability for essentially accidental injury to the person or property of another rather than 

coverage for disputes between parties to a contractual undertaking.” Lopez & Medina Corp v 

Marsh USA, Inc, 667 F3d 58, 67-68 (CA 1, 2012) (citation omitted). In determining whether an 

insured’s intentional act can be classified as an “accident,” a court can consider “whether the 

consequences of the insured’s intentional act either were intended by the insured or reasonably 

should have been expected.” Masters, 460 Mich at 115-116. It is not an accident where the 

insured’s intentional acts are intended to cause, or create a direct risk of property damage. Id. 

 The undisputed evidence established that Channel Road Construction’s failure to install 

metal flashing above windows and failure to angle the window sills away from the windows 

allowed water to accumulate behind the exterior finish of the home, causing water damage 

around seven windows and a wall beneath adjoining roof sections. The home was built in 2005 

and the water damage was discovered in 2011. Damage from defective workmanship is an 

“occurrence” that triggers an insurance policy’s coverage “only if the damage in question 

extended beyond the insured’s work product.” Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 

Mich App 25, 38; 772 NW2d 801 (2009), citing Radenbaughm, 240 Mich App at 144. When an 

insured’s defective workmanship results in damage to the property of others, an “accident” 

occurred according to a standard liability policy; but, when an insured’s defective workmanship 

results in damage confined to the insured’s own work product, the insured is the injured party 

and the damage was not an “accident.” Radenbaugh, 240 Mich App at 146-147 (citation 

omitted). 

 

2

 Channel Road Construction’s policy with Frankenmuth Mutual contained an identical 

provision. 
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 Here, the damage was confined to Channel Road Construction’s work product and, 

therefore, not an “accident” or “occurrence” within the meaning of the liability policy. Channel 

Road Construction’s contract was to construct the home. The property damage at issue was not 

to the individual materials supplied by the Wengers, but to areas of the constructed home. 

 Thus, there was no “occurrence” causing property damage to trigger plaintiff’s policy 

coverage of defendant Channel Road Construction’s liability. Hawkeye Security Ins Co v Vector 

Constr Co, 185 Mich App 369, 378; 460 NW2d 329 (1990). 

 Affirmed. 

/s/ William B. Murphy 

/s/ David H. Sawyer 

/s/ Michael J. Kelly