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

BRYAN ZACK and ANDREA ZACK,

Plaintiffs-Appellants-CrossAppellees,

UNPUBLISHED

June 11, 2019

v No. 343732

Muskegon Circuit Court

THOMAS C. CLOCK III and CLOCK FUNERAL 

HOME OF WHITE LAKE, INC.,

LC No. 16-005879-NO

Defendants-Appellees-CrossAppellees,

and

WESTFIELD INSURANCE COMPANY,

Defendant-Appellee-CrossAppellant.

Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court’s order granting summary disposition in favor 

of defendant, Westfield Insurance Company (Westfield), based on its finding that plaintiffs’

injuries did not occur during the insurance policy period. Westfield cross-appeals from the same 

order, challenging the trial court’s determination that questions of fact existed concerning 

whether the “criminal acts” exclusion in the insurance policy applied in this matter. We affirm.

The facts in this case are uncontested. Plaintiffs’ infant son passed away in February of 

2015. Plaintiffs arranged for funeral and burial services with defendants, Clock Funeral Home of 

White Lake (“the funeral home”) and Thomas C. Clock III (Clock). The visitation and funeral 

services were conducted on February 16 and 17, 2015, but burial was delayed due to a required 

autopsy. Plaintiffs requested that their son be cremated and that his ashes be buried in an urn 

they provided to Clock. Clock conducted a burial service interring the urn on April 18, 2015.
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At the time of the funeral and burial, the funeral home and Clock were insured through a 

business liability policy issued by defendant Westfield. However, Westfield cancelled the 

policy, effective December 19, 2015, due to nonpayment.

At some point in January of 2016, an employee of Clock and the funeral home discovered 

a box at the funeral home labeled as the ashes of plaintiffs’ son. The employee delivered the box 

to the plaintiffs and, during an investigation into Clock’s activities, their son’s grave was 

exhumed. The urn in the grave was empty.1

Plaintiffs submitted a claim for damages to Westfield and Westfield denied the claim. 

Plaintiffs thus initiated the instant action against the funeral home and Clock on various theories 

of negligence, and against Westfield seeking a declaratory action that their injuries were covered 

by the policy Westfield issued to the funeral home and Clock. Relevant to this appeal, Westfield 

moved for summary disposition pursuant to MCR 2.116(C)(10), contending that plaintiffs’

injury did not occur while the insurance policy was in effect and that it thus had no duty to 

defend or indemnify Clock and the funeral home against plaintiffs’ claims. Westfield further 

argued that a “criminal acts” exclusion in the policy precluded coverage. The trial court granted 

the motion with respect to Westfield’s first argument, but denied summary disposition with 

respect to Westfield’s second argument.2 This appeal and cross-appeal followed. 

This Court reviews de novo a trial court’s ruling on a motion for summary disposition. 

Anzaldua v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). In reviewing a 

motion for summary disposition brought under MCR 2.116(C)(10), a court considers the 

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

the light most favorable to the party opposing the motion. Abbott v John E Green Co; 233 Mich 

App 194, 197; 592 NW2d 96 (1998). The nonmoving party may also not rest on the allegations 

in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating 

a genuine issue for trial. Anzaldua, 292 Mich App at 30. If the documentary evidence shows 

that there is no genuine issue regarding any material fact, the moving party is entitled to 

judgment as a matter of law. Abbott, 233 Mich App at 197. 

This Court also reviews de novo a court’s construction and interpretation of an insurance 

contract. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190 (1999). 

Insurance policies are subject to the same contract construction principles that apply to any other 

type of contract. Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 714; 

706 NW2d 426 (2005) (citation and quotation marks omitted). We look at the plain language of 

the policy and enforce it in accordance with its unambiguous terms. Henderson, 460 Mich at 

 1 Clock was criminally charged in relation to this, as well as another incident, and ultimately 

pleaded no contest to “gross fraud or cheat at common law by deceiving a family into believing 

that they were burying the remains of their infant son but in fact the urn was empty contrary to 

law.” 

2 Plaintiffs entered into a consent judgment with the funeral home and Clock and that judgment 

has not been appealed.
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353-354. If the policy is ambiguous—that is, if its provisions are capable of conflicting 

interpretations—its meaning is a question of fact to be decided by the fact-finder. Klapp v 

United Ins Group Agency, Inc, 468 Mich 459, 467, 469; 663 NW2d 447 (2003). A court should 

not, however, create ambiguity in an insurance policy where the terms of the contract are clear 

and precise. Auto–Owners Ins Co v Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992).

 Westfield issued a policy of insurance to the funeral home for the period of October 15, 

2014, through October 15, 2015. Westfield concedes that the policy is applicable to Clock, 

pursuant to the language in the policy. The policy coverages and exclusions were set forth in a 

BusinessOwners3 Coverage Form which provides, in relevant part:

Section II-Liability

A. Coverages

1. Business Liability

a. We will pay those sums that the insured becomes 

legally obligated to pay as damages because of 

“bodily injury”, “property damage” or “personal 

and advertising injury” to which this insurance 

applies. We will have the right and duty to defend 

the insured against any “suit” seeking those 

damages. However, we will have no duty to defend 

the insured against any “suit” seeking damages 

[f]or “bodily injury”, “property damage” or 

“personal and advertising injury” to which this 

insurance does not apply. We may, at our 

discretion, investigate any “occurrence” or any 

offense and settle any claim or “suit” that may 

result . . . .

***

b. This insurance applies:

(1) To “bodily injury” or “property damage”

only if:

(a) The “bodily injury” or “property 

damage” is caused by an “occurrence” that 

takes place in the “coverage territory”;

 3 The words “business” and “owner” appear together as one word in the policy.
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(b) The “bodily injury” or “property 

damage” occurs during the policy period . . . .

The policy also contains a Funeral Directors Professional Liability endorsement, which

modified the insurance provided under the Business Owners Coverage form. Specifically, the 

endorsement provides:

Section II Liability is amended as follows:

A. For the insurance provided by this endorsement, all provisions under 

Paragraph A.1. Business Liability also apply to other injury.

B. Paragraph A. Coverages also applies to “bodily injury”, “property 

damage”, “personal and advertising injury” or other injury arising out of the 

rendering of or failure to render professional services in connection with the 

insured’s business as a funeral director. 

C. With respect to the coverage provided by this endorsement, Paragraph 

B. Exclusions is amended as follows:

***

3. The following Exclusion is added:

This insurance does not apply to:

“Bodily injury”, “property damage”, “personal and 

advertising injury” or other injury arising out of a criminal

act including but not limited to fraud committed by the 

insured or any person for whom the insured is legally 

responsible.

***

F. For the coverage provided by this endorsement, the definition of 

“occurrence” in Paragraph F. Liability and Medical Expenses Definitions, is 

amended to include any act or omission arising out of the rendering or failure to 

render professional services as a funeral director. 

Thus, the endorsement extends business liability coverage to “other injuries”, and extends the 

definition of “occurrence” to acts and omissions arising out of services rendered or the failure to 

render services as a funeral director. The endorsement also, however, adds an exclusion of 

coverage for any injury arising out of a criminal act committed by the insured or anyone for 

whom the insured is legally liable. 

On appeal, plaintiffs contend that the trial court erred in granting Westfield summary 

disposition because the insurance policy is applicable to Clock’s errors and omissions and 

because plaintiffs’ injuries occurred while the policy was still in effect. Westfield, on the other 
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hand, insists that plaintiffs’ injuries occurred after the policy was cancelled and that, even if the 

injuries did occur within the policy effective dates, the “criminal acts” exclusion in the policy 

nonetheless precludes coverage. To determine whether plaintiffs are entitled to insurance 

benefits we employ a two-part analysis, first determining if the policy provides coverage to 

plaintiffs, and if it does, “we then ascertain whether that coverage is negated by an exclusion,”

Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 172; 534 NW2d 502 (1995); here, the 

criminal acts exclusion. 

The BusinessOwner policy issued to the funeral home and Clock unambiguously and 

specifically states that it applies to bodily injury or property damage only if it is caused by an 

occurrence that took place in the coverage territory and the bodily injury or property damage 

“occurs during the policy period . . . .” There are thus two prongs necessary to trigger coverage. 

There is no dispute that an “occurrence”, as defined in the endorsement to include “any act or 

omission arising out of the rendering or failure to render professional services as a funeral 

director” took place in 2015 when the insurance policy was in effect. There is also no dispute 

that plaintiffs suffered an injury as a result of that occurrence. While the endorsement expands 

coverage to “other injury” and “other injury arising out of the rendering of or failure to render 

professional services in connection with the insured’s business as a funeral director”, the 

endorsement in no way alters the requirement that the injury or damage occur during the policy

period. Thus, unless plaintiffs establish that their injuries occurred during the policy period, 

Westfield’s duty to defend and indemnify the funeral home and Clock is not triggered. We find 

that they did not.

Plaintiffs asserted in their complaint that Clock was arrested on January 9, 2016, and that 

while he was in jail, one of his employees found the box purportedly containing their son’s 

ashes. They alleged that on March 18, 2016, their son’s grave was exhumed and it was 

confirmed that the urn that was intended to hold his ashes was empty. Plaintiff’s asserted that as 

a result of Clock’s negligence, they suffered severe mental and emotional pain and suffering, 

physical pain and suffering, denial of social pleasure, embarrassment, humiliation, mortification, 

and medical expenses. Because plaintiffs did not learn that their son’s ashes were not, in fact, 

buried until after the policy coverage had ended, they did not suffer their emotional, mental and 

physical injuries resulting from that negligent act until after the policy had terminated. 

Plaintiffs claim that the injury they sustained was interference with their right to control 

the final disposition of their son’s remains, and that this injury was incurred the moment Clock 

buried an empty urn. However, the interference was simply the wrongful action Clock engaged 

in that resulted in injuries to plaintiffs. Plaintiffs cite to Hannay v Dept of Transp, 497 Mich 45,

64; 860 NW2d 67 (2014) in support of their position. In Hannay, the plaintiff was physically 

injured in an automobile accident. The Court interpreted a provision in the No-Fault Act, noting 

that “injury” and “damages” are distinct and that damages flow from an injury. Id. The Court 

held that:

In light of . . . this Court’s delineation of the difference between “injury”

and “damages” . . . ”liable for bodily injury” in the present case means legally 

responsible for damages flowing from a physical or corporeal injury to the body. 

Stated differently, “bodily injury” is simply the category of harm (i.e., the type of 

injury) for which the government waives immunity under MCL 691.1405 and, 
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thus, for which damages that naturally flow are compensable. Therefore, the legal 

responsibility that arises from “bodily injury” is responsibility for tort damages

that flow from that injury. Id. at 64 (emphasis in original).

Just as the auto accident itself in Hannay was not the injury suffered by the plaintiffs in 

that case but instead the event causing injuries, so too, the act of Clock interfering with their 

right to control the final disposition of their son’s ashes is not the injury here. Rather, that act 

caused plaintiff’s injuries (severe mental and emotional pain and suffering, physical pain and 

suffering, humiliation, embarrassment, medical expenses, etc.). And they could and did seek to 

hold defendants legally responsible for the damages (i.e. money claimed by, or ordered to be 

paid to a person as compensation for loss or injury, See, Black’s Law Dictionary, (7th ed.))

flowing therefrom.

Plaintiffs additionally assert that the policy at issue was an “errors and omissions” policy 

and attempt to categorize the policy as an “occurrence policy” (one of the two types of identified 

errors and omissions policies). According to plaintiffs, because the policy was an errors and 

omissions occurrence policy, their claims are covered. This categorization, however, ignores the 

plain language of the insurance policy. Regardless of what the policy is called, we must,

according to longstanding law, interpret and enforce an unambiguous contract “as written, 

because an unambiguous contract reflects the parties’ intent as a matter of law.” In re Smith Tr, 

480 Mich 19, 24; 745 NW2d 754 (2008). We find Gelman Sciences, Inc v Fidelity Cas Co, 456 

Mich 305, 312, 329; 572 NW2d 617 (1998), amended sub nom. Arco Indus Corp v Am Motorists 

Ins Co, 456 Mich 1230; 576 NW2d 168 (1998), overruled on other grounds by Wilkie v AutoOwners Ins Co, 469 Mich 41; 664 NW2d 776 (2003) instructional on that issue. 

In that case, our Supreme Court noted that courts have had difficulty determining when 

insurance coverage is triggered in cases involving gradual, continuous, or delayed property 

damage from pollution because the actual damage is not discovered until years after the pollution 

began. Courts had discussed four possible theories for determining when coverage is triggered 

under standard comprehensive general liability policies: the exposure theory, the injury in fact 

theory, the manifestation theory, and the continuous trigger theory. Id. at 313. The Gelman

Court determined that references to trigger theories can be deceiving because, “[u]ltimately, it is 

the policy language as applied to the specific facts in a given case that determines coverage” and 

the issue “is fundamentally a question of insurance contract interpretation.” Id. at 316, 317. 

The insurance policy before the Gelman Court provided coverage for bodily injury or 

property damage “to which this [i]nsurance applies, caused by an occurrence. . .” The policy 

defined “occurrence” as “an accident, including injurious exposure to conditions, which results 

during the policy period, in bodily injury or property damage . . .” Id. at 318-319 (emphasis in 

original). Our Supreme Court held that the policy language concerning when coverage was 

triggered was unambiguous and, “according to the policies’ explicit terms, actual injury must 

occur during the time the policy is in effect in order to be indemnifiable, i.e., the policies dictate 

an injury-in-fact approach.” Id. at 319-320. The Gelman Court acknowledged that determining 

the precise timing of actual property damage is sometime difficult and while it “appreciate[s] the 

difficulty of proof in this regard, this difficulty cannot justify redrafting unambiguous policy 

terms in the guise of judicial interpretation.” Id. at 323. 
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Again, the policy at issue clearly and unambiguously provides coverage only if it is 

caused by an occurrence that took place in the coverage territory and the bodily injury or 

property damage “occurs during the policy period . . .” Plaintiffs’ injuries did not occur during 

the policy period. The trial court thus properly granted summary disposition in favor of 

Westfield. Given the above, we need not consider the argument presented by Westfield on 

cross-appeal. 

Affirmed.

/s/ Jane M. Beckering 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens