1

UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EDDIE P. BATES,

Plaintiff,

v.

HARTFORD INSURANCE COMPANY OF THE

MIDWEST,

Defendant.

Case No. 09-12840

Honorable Julian Abele Cook, Jr.

ORDER

In this case, the Plaintiff, Eddie Bates, alleges that the Defendant, the Hartford Insurance

Company of the Midwest, breached the parties’ insurance contract when it wrongfully denied his

requests for payment under his fire insurance policy. Currently before the Court are Hartford’s

motion for summary judgment and Bates’s counter-motion for summary judgment as to liability.

I.

Bates owns a residential rental property at 16148 Prairie in Detroit, Michigan, that was

damaged by a fire on June 17, 2008. Bates asserts that he did not learn about the fire loss until his

return to the United States from a vacation on June 23, 2008. He reported the fire loss to Hartford

on the following day (June 24th). Upon its receipt of this claim, Hartford sought a copy of the police

report from the Detroit Police Department. However, rather than sending a report relating to the June

17th fire, the Police Department forwarded a report, dated May 28, 2008, which recorded, among

other things, a burglary on May 23rd at the Bates house. This report incorporated a statement from

Bates that the front and back windows at this home had been broken and “the living room carpet was

burned.” Hartford contends that this report is evidence that there had been an undisclosed fire in his

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home prior to the incident in June for which Bates had submitted his insurance claim. However,

Bates maintains that there was no fire at this home prior to the June 2008 fire, and that the carpet

sustained only minor cigarette burns. 

In addition, there is a dispute between the parties as to whether the Bates house was vacant

in the days which immediately preceded the fire. There is evidence that Shanese Johnson signed a

one-year lease agreement with Bates for her use of the house as a tenant beginning on March 1,

2008. However, Johnson, while acknowledging that she had brought some her clothing and kitchen

utensils into the rental property on Prairie, denies having spent a single night in the house and insists

that all of her personal belongings had been removed prior to April 1st. This version is contested by

Bates, who submits that Johnson did not vacate the premises until the early days of May. In fact, he

points to a landlord-tenant proceeding on April 29, 2008, in the 36th District Court of Michigan

which required Johnson to vacate the premises and surrender the keys by May 9, 2008. However,

Bates contends that she neither surrendered the house keys nor removed her possessions until some

time after May 19, 2008. 

Following the completion of its investigation, Hartford denied Bates’s request for payment

under the parties’ insurance contract. Feeling aggrieved by this rejection, Bates filed a law suit on

June 17, 2009, in the Wayne County Circuit Court of Michigan, which was subsequently removed

to this Court on the basis of its diversity jurisdiction, §28 U.S.C. § 1332; 1441. On November 1,

2010, Hartford filed a motion for the entry of a summary judgment, contending that (1) the house

on Prairie had been vacant for more than thirty consecutive days prior to the onset of the fire which,

in turn, barred any payment due to the vacancy exclusion within the vandalism and malicious

mischief provision of the insurance contract; and (2) Bates had concealed or misrepresented a

material fact relating to his claim for damages - an allegation which, if established, would bar any

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payment according to the concealment or fraud provision within the parties’ insurance contract. 

Bates, in opposing Hartford’s motion, has filed a counter-motion for summary judgment with

respect to the issue of liability. It is his position that (1) the vacancy exclusion does not apply to

arson fire losses, (2) the thirty-day vacancy clause is void as a matter of law in the State of

Michigan, (3) the house on Prairie was not vacant - within the meaning of the policy - for thirty

consecutive days prior to the fire, and (4) Hartford’s misrepresentation defense is legally flawed

because there is no evidentiary support for its allegation that there had been an earlier fire at this

home. Throughout their written pleadings and oral arguments, the parties have traded accusations

in which they charged each other with erroneous characterizations of the facts and/or purposeful

misinterpretations of the insurance contract. These exchanges continued without either party

yielding the legal ground to the other. 

II.

The purpose of the summary judgment rule, as reflected by Federal Rule of Civil Procedure

56, “is to isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986). Therefore, the entry of a summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary

judgment if proof of that fact would have the effect of establishing or refuting an essential element

of the cause of action or a defense advanced by the parties.” Aqua Grp., LLC v. Fed. Ins. Co., 620

F. Supp. 2d 816, 819 (E.D. Mich. 2009) (citing Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.

1984)). In order for a dispute to be genuine, it must contain evidence upon which a trier of the facts

could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). When assessing

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a request for a summary judgment, a court “must view the facts and all inferences to be drawn

therefrom in the light most favorable to the non-moving party.” 60 Ivy Street Corp. v. Alexander,

822 F.2d 1432, 1435 (6th Cir. 1987). The entry of a summary judgment is appropriate if the

nonmoving party fails to present evidence which is “sufficient to establish the existence of an

element essential to its case, and on which it will bear the burden of proof at trial.” Celotex, 477 U.S.

at 322.

Thus, the moving party has the initial obligation of identifying those portions of the record

that demonstrate the absence of any genuine issue of a material fact. Celotex, 477 U.S. at 323.

Thereafter, the nonmoving party must “come forward with some probative evidence to support its

claim and make it necessary to resolve the differences at trial.” Boyd v. Ford Motor Co., 948 F.2d

283, 285 (6th Cir. 1991); see also Anderson, 477 U.S. at 256. The presence or the absence of a

genuinely disputed material fact must be established by (1) a specific reference to “particular parts

of materials in the record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials,” or (2) a “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

III. 

Because the jurisdiction of the Court in this case is founded on diversity of citizenship

grounds, Michigan substantive law - including its principles of statutory construction and contract

interpretation - governs. Thus, a court must interpret the insurance policy so as to “best effectuate

the intent of the parties and the clear, unambiguous language of the policy.” Auto Owners Ins. Co.

v. Harrington, 565 N.W.2d 839, 841 (Mich. 1997) (citation and internal quotation marks omitted).

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Under the present circumstances, a court is obliged to examine the contract as a whole and give

meaning to all of its terms. Id. Unambiguous words and terms are construed according to their plain

and ordinary meanings, St. Paul Fire & Marine Ins. Co. v. Ingall, 577 N.W.2d 188, 192 (Mich. App.

1998), and are “given a meaning in accordance with their common usage,” Cavalier Mfg. Co. v.

Employers Ins. of Wausau, 564 N.W.2d 68, 70-71 (Mich. App. 1997). “While ambiguities in a

policy are generally construed in favor of the insured, the [c]ourt will not create ambiguities where

none exist.” Id. at 71. “If a fair reading of the entire contract of insurance leads one to understand

that there is coverage under particular circumstances and another fair reading of it leads one to

understand there is no coverage under the same circumstances[,] the contract is ambiguous and

should be construed against its drafter and in favor of coverage.” Raska v. Farm Bureau Mut. Ins.

Co., 314 N.W.2d 440, 441 (Mich. 1982), overruled on other grounds by Smith v. Globe Life Ins. Co.,

597 N.W.2d 28 (Mich. 1999); see also Vushaj v. Farm Bureau Gen. Ins. Co., 773 N.W.2d 758, 759

(Mich. App. 2009). Although the insured bears the burden of proving coverage, the insurer bears

the responsibility of proving that an exclusion applies. Heniser v. Frankenmuth Mut. Ins. Co., 534

N.W.2d 502, 505 n.6 (Mich. 1995).

Similarly, under Michigan’s statutory construction principles, courts are to construe statutes

so as to effectuate a legislative intent. Moore v. Secura Ins., 759 N.W.2d 833, 838 (Mich. 2008).

Thus, courts are obliged to “review the language of the statute itself and give the words used by the

Legislature their common and ordinary meaning.” Id. If the language is unambiguous, the analysis

by the court is at an end, and “further construction is neither required nor permitted.” Nastal v.

Henderson & Assocs. Investigations, Inc., 691 N.W.2d 1, 5 (Mich. 2005). 

IV.

Bates submits that Hartford’s vacancy defense fails for a variety of reasons, which, in his

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opinion, are independently sufficient to defeat this pending motion for summary judgment. First, he

contends that the vacancy provision - as asserted by Hartford - does not apply to his claim. Second,

he submits that, even if the vacancy provision is deemed to be applicable to his claim, its content

is absolutely void as a matter of law in Michigan. Finally, he argues that, even if the vacancy

provision is not void, his house was not vacant within the meaning of the parties’ contract. Hartford

disagrees.

Bates’s insurance policy covers damages that are caused by vandalism, but not if the subject

property had been vacant for more than thirty days prior to the claimed loss. The policy states, in

relevant part, that “[the vandalism and malicious loss] peril does not include loss . . . to property on

the described location if the dwelling has been vacant for more than 30 consecutive days

immediately before the loss.” (Def.’s Br., Ex. 9). Bates argues that this provision is inapplicable to

his claim because (1) fire and vandalism are distinct causes of losses that are governed by different

policy provisions, and (2) the vacancy exclusion applies only to vandalism losses. (Pl.’s Br. at 1, 8

n.1; Pl.’s Reply at 5). Hartford takes issue with Bates’s argument, contending that it is “undisputed”

that the fire in June 2008 was caused by vandalism or malicious mischief. In support of this position,

Hartford points to Bates’s sworn statement in his proffered proof of loss claim which indicates that

a “fire and vandalism loss occurred.” (Def.’s Br. at 5 and Ex. 4). However, a complete examination

of this proof of loss form reveals that Bates had filed his claim pursuant to the policy provision

which insured against a loss by “fire and lightning” - not “vandalism and malicious mischief” - and

that the cause and origin of the loss was “a fire (possible arson).” Therefore, Hartford’s

characterization of the cause of loss as “undisputed” is mistaken at best.

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At the oral argument, Hartford appeared to advance the position that Vushaj, 284 Mich. App.

513, is binding precedent that holds that an arson fire falls within the vandalism class of losses.

However, a reading by the Court of Vushaj does not support Hartford’s interpretation. It is true

that Vushaj held that the insured was properly denied coverage for arson losses under his

policy’s thirty-day vacancy provision. However and contrary to Hartford’s argument, Vushaj did

not hold that arson was vandalism. Unlike the policy at issue here, the policy in Vushaj provided

that coverage was not available for any loss where the subject premises was vacant or

unoccupied. Because the vacancy provision was not limited to vandalism losses, the court had no

occasion to consider whether arson was a fire or vandalism loss.

7

Although the Court has not uncovered any controlling authority on point,1

 it does find the

thorough analysis and decision by the Michigan Court of Appeals in Johnson v. State Farm Fire &

Casualty Co., No. 278267, 2008 WL 4724322, at *2-4 (Mich. App. Oct 28, 2008), to be persuasive.

In Johnson, the insurer relied on its vacancy-vandalism provision to deny coverage for losses that

had been caused by an arson fire. Noting that the policy listed fire and vandalism and malicious

mischief as separate perils, whereas the vacancy exclusion only mentioned vandalism and malicious

mischief, the appellate tribunal determined that “arson is a specific kind of fire - as contrasted to a

form of vandalism - [and therefore ] we conclude that arson coverage is not precluded by the

vandalism exclusion.” Id. at *4. As in Johnson, the policy at issue here lists fire or lightning and

vandalism and malicious mischief as separate insured perils.

The structure of the policy at issue here provides an even more compelling reason to

conclude that arson is not within the vandalism class of a loss. Although fire and lighting coverage

is included in the basic policy, coverage for vandalism and malicious mischief was purchased

separately by the insured with the payment of an additional premium. The basic policy excludes

coverage for intentional losses except that, in the case of fire losses, the exclusion does not apply

to an insured who did not commit or direct the commission of any act which resulted in the loss of

property interests by fire. (Def.’s Br., Ex. 9, at Michigan Special Provisions, General Exclusion 8).

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In light of the conclusion by the Court that the vacancy provision is not implicated here,

it need not address Bates’s argument that, if the vacancy provision is construed to apply to fire

losses, it would be void as being contrary to the insurance law in Michigan. However, the Court

notes that under the provisions of the former Michigan Compiled Law § 500.2832, as reenacted

and incorporated by § 500.2833(2), a fire insurance contract which includes a vacancy exclusion

must provide for at least sixty days of vacancy in order for the exclusion to become applicable

and legally enforceable. Moreover, where a provision is determined to be “absolutely void”

because it conflicts with the provisions of the fire insurance code, Mich. Comp. Law § 500.2860,

a court should read the corresponding insurance code provision into the policy only if the

provision is mandatory. Randolph v. State Farm Fire & Cas. Co., 580 N.W.2d 903, 904 (Mich.

App. 1998) (“Insurance contracts are subject to statutory regulations, and mandatory, statutory

provisions from the Insurance Code must be read into the contracts when applicable.”). Mich.

Comp. Law § 500.2833(2) mandates that, “[e]xcept as otherwise provided in this act, each fire

insurance policy issued or delivered in this state pursuant to subsection (1) shall contain, at a

minimum, the coverage provided in the standard fire policy under former section 2832.” Thus,

Mich. Comp. Law § 2833(2) incorporates and sets as baselines those provisions of coverage that

were delineated in former Mich. Comp. Law § 2832. See Williams v. Auto Club Grp. Ins. Co.,

569 N.W.2d 403, 405 (Mich. App. 1997) (“[T]he insertion of subsection 2833(2) served to

reenact the coverage guarantees of § 2832.”). Mich. Comp. Law § 2833(2) provides no basis for

concluding that those provisions which restrict coverage - those provisions regarding exclusions

and conditions - are also mandatory and thus must be read into the policy by a reviewing court.

See Martin v. Farm Bureau Gen. Ins. Co., No. 275261, 2008 WL 1807940, at *4 (Mich. App.

Apr. 22, 2008) (emphasis added) (“[Section] 500.2833(2) only requires fire insurance policies to

provide the same coverage as the standard fire insurance policy contained in former [Section]

500.2832. It does not require insurers to write the policy conditions contained in the standard fire

insurance policy into their fire insurance policies.”).

8

Thus, arson is contemplated as a peril within the class of losses caused by fire - not by vandalism.

Furthermore, there is no vacancy provision anywhere in the policy except with respect to the

vandalism and malicious mischief additional coverage. Thus, in the absence of a vandalism buy-up,

there would be no vacancy provision in the policy. Construing the policy as suggested by Hartford

would require the Court to adopt a nonsensical conclusion; namely, that the policy provides

coverage against arson fires in vacant properties unless an insured pays an extra premium to insure

against the additional perils of vandalism and malicious mischief. Although Hartford could have

included a vacancy provision with respect to fire losses in the policy,2

 it did not do so. Hartford is

not permitted to transform an exclusion from its vandalism coverage into an exclusion from its fire

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Hartford cites the concealment condition in the basic policy. However, it appears that -

to the extent they are applicable - the Michigan Special Provisions replace the basic provisions.

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coverage.

The Court thus concludes that the policy, when considered as a whole, is not ambiguous:

Arson is not included within the vandalism and malicious mischief class of perils, and therefore the

vacancy-vandalism exclusion does not apply to Bates’s claim. Moreover, even if Hartford’s

interpretation of the contract constituted a “fair reading [that] leads one to understand there is no

coverage,” Raska, 314 N.W.2d at 441, the Michigan principles of contract interpretation would

require the Court to construe the ambiguity against the drafter and in favor of coverage. In light of

the conclusion by the Court that an arson fire is covered by the fire and lightning loss provision and

is not included within the vandalism and malicious mischief provision, Hartford cannot defend its

denial of Bates’s fire loss claim on the basis of the vacancy-vandalism exclusion. Thus, the factual

dispute as to whether, and if so, for how long, the house was vacant is immaterial - or, as Bates

denominates it, “an irrelevant factual controversy.” (Pl.’s Br. at 4). Therefore, Bates is entitled to

the entry of a partial summary judgment with respect to Hartford’s vacancy defense.

V.

Hartford also contends that its denial of Bates’s claim was appropriate on the basis of the

concealment or fraud condition of coverage. This provision provides as follows:

8. With respect to loss caused by fire, we provide no coverage for loss to a person

insured under this policy, who has:

(1) Intentionally concealed or misrepresented any material fact or

circumstance;

(2) Engaged in fraudulent conduct; or

(3) Made false statements;

relating to this insurance.

(Def.’s Br., Ex. 9, at Michigan Special Provisions, Condition 3).3

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(See Def.’s Br., Ex. 9, at Michigan Special Provisions, Condition 3 (“3. Concealment or fraud is

deleted and replaced by the following . . . .”)). The policy provision cited by Hartford states:

“We do not provide coverage if you have intentionally concealed or misrepresented any material

fact or circumstance relating to this insurance.” (Def.’s Br. at 4 and Ex. 9).

10

Hartford states that it is “undisputed” that Bates made material misrepresentations with

respect to the break-in of his insured property during the month before the fire at issue. Hartford

points to the following answers that Bates gave during an examination under oath:

Q: What damage was done to the house [in the May 2008 break-in]?

A: There was not any damage done, just to [the back] window. They came through,

looked like it was teenagers or something. They were in there smoking. I found

cigarette butts, cigar butts, bottles, the chairs was around in the living room like

they were in there sitting.

. . . .

Q: They didn’t start a fire?

A: No.

(Def.’s Br. at 9-10). 

Hartford contrasts this exchange with Bates’s statements within the May 28, 2008 report that

it received from the Detroit Police Department. The investigating officer wrote that the victim (i.e.,

Bates) had stated that “he left his rental property intact and when he returned he discovered his front

picture frame sliding window broken and his back window broken also. Victim states that his living

room carpet was burned.” (Def.’s Br., Ex 5). Hartford characterizes this report as good and sufficient

evidence that “Mr. Bates had called the police and complained that the sliding frame of the rear

window in the home had been broken into and that vandals had set fire to the carpet in the living

room. Mr. Bates did not report this fire to The Hartford.” (Def.’s Br. at 3). According to Hartford,

this report is proof that Bates made a material misrepresentation regarding his insurance coverage

when he denied under oath that the home had been damaged by vandals prior to the June fire.

Hartford also appears to suggest that, even if there was no prior fire, Bates’s failure to report

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certain damage (to wit, the carpet had sustained cigar and/or cigarette burns and that the front and

the back windows had been broken) constitutes a material misrepresentation which justifies its

denial of his claim. Hartford contends that any prior fire or burn damage would be highly relevant

to its investigation of Bates’s claim because (1) a prior fire could be clear evidence of an earlier

unsuccessful attempt to burn the home; and (2) it could be proof of another effort by him to use this

claim to recover for unreported damages in the May incident. 

Bates disputes the factual bases as well as the legal underpinnings of Hartford’s argument.

First, he contests the admissibility of the police report under Federal Rule of Evidence 803(8),

contending that police reports are only admissible under the public agency records rule to the extent

that they “contain factual findings which are based upon the knowledge or observation of the person

preparing the reports.” Kubik v. Brown, 979 F. Supp. 539, 544 (W.D. Mich. 1997). Inasmuch as the

police report is only a recorded statement that was given to a police officer, Bates submits that the

report is hearsay within hearsay rather than a set of facts based on the officer’s knowledge or

observation. However, the Sixth Circuit has held that “the personal knowledge requirement does not

extend to official reports admissible under Rule 803(8),” Alexander v. CareSource, 576 F.3d 551,

562 (6th Cir. 2009), because these documents are almost inevitably based upon interviews that are

conducted pursuant to an investigation rather than the writer’s first-hand knowledge, see Weinstein

v. Siemens, No. 07-15000, 2010 WL 4824952, at *3 (E.D. Mich. Nov. 22, 2010). Moreover, the

statements within this report are, by definition, not hearsay because they are admissions by a partyopponent under Federal Rule of Evidence 801(d)(2)(A). Cf., Weinstein, 2010 WL 4824952, at *5

(third-party statements in police report were not hearsay because declarants were authorized by their

employer - the party against whom the report was offered - to speak or were acting within scope of

their employment when statements were given, Fed. R. Evid. 801(d)(2)(C), (D)). Under these

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circumstances, the police report is admissible evidence that the Court may consider when evaluating

the pending dispositive motions. Hence, the Court rejects Bates’s articulated position on this issue.

Bates next submits that the statement in the police report (to wit, that the carpet was

“burned”) does not support the inference that it had been set on fire. To the contrary, he asserts that

the investigating police officer was told by him that cigar and cigarette burns were found on the

living room carpet - not that it had been set on fire, as contended by Hartford. (Def.’s Br. at 3 and

Ex. A, Bates Aff.). Moreover, Bates contends that (1) only minimal damage was caused as a result

of these carpet burns, (2) the damage to the window was subsequently corrected by him, and (3)

these problems were so minor that neither replacement nor repair services were necessary. (Def.’s

Brief, Ex. A). Thus, he - in denying having made any material misrepresentations under oath during

the examination - insists that his statements to the police department officers and to Hartford

personnel were truthful and fully consistent with each other. 

Hartford disputes Bates’s characterization and assessments of these two versions of his

statements. (Def.’s Reply Br. at 6). In support of this position, Hartford has submitted photographs

of the Bates home taken after the fire which show extensive and “separate and discrete fire damage

to the carpeting.” (Id. at 7). Hartford argues that this damage is inconsistent with Bates’s description

of the fire damage in his examination under oath. Specifically, Hartford points to the following

exchange:

Q: Okay. Did you go into the house to look at the burn damage caused by the fire?

A: On the 23rd of June.

Q: And where was the burn damage located at?

A: It was throughout the house, upstairs mostly.

Q: Up on the second floor?

A: Yes.

Q: Was the burn damage on the first floor?

A: The stairs and bathroom but mostly it was smoke damage.

Q: So you’re saying the burn damage was mostly confined to the –

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A: Upper structure.

Q: -- upper structure with some burn damage on the first floor on the stairs?

A: Yes.

(Def.’s Reply Br. at 9; Def.’s Br., Ex. 1 at 52:6-22). Thus, Hartford reasons that, if the damage from

the June fire was mostly confined to the upper structure and stairs and the photographs show

extensive damage to the first floor carpet, then the damage from the May incident must have been

far more significant than Bates had indicated.

However, it should be noted that Hartford did not include the next four lines of Bates’s

examination testimony:

Q: Was the carpeting burned on the first floor?

A: Yes.

Q: So you had carpet damage too?

A: Yes.

(Def.’s Br., Ex. 1 at 52:23-53:1). Bates’s testimony (to wit, the carpet was burned in the June fire)

significantly undercuts a necessary premise of Hartford’s inference about the extent of the damage

from the May incident. The Court concludes that each side has adduced sufficient, competing

evidence to demonstrate that a genuine issue of material fact exists with respect to whether Bates

committed misrepresentation in his dealings with Hartford.

Moreover, Bates argues that, even if there is some inconsistency in his statements or even

if there had been a prior carpet fire - both of which he strenuously disputes - Hartford must show

that he, through his statements, intended to deceive this insurance carrier. As noted above, supra

note 3, the Court is uncertain as to which of the two concealment or fraud provisions applies to

Bates’s claim. The provision that was cited by Hartford requires that the allegation of fraud be

intentional and material. Although the provision in the Michigan Special Provisions does not include

the modifying words, “intentionally” or “material,” in connection with the fraudulent conduct or

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false statement provisions, it does include this language in the “misrepresentation and concealment”

provision. It is noteworthy that neither of the parties have briefed the issue as to whether, in the

absence of “intent” or “materiality” requirements in the policy, an insurer must still prove

materiality and intent with respect to fraud or false statements. Compare West v. Farm Bureau Ins.

Co., 259 N.W.2d 556, 557 (Mich. 1997) (citations omitted) (“Where an insurance policy provides

that an insured’s concealment, misrepresentation, fraud, or false swearing voids the policy, the

insured must have actually intended to defraud the insurer. The effect of this rule is that a false claim

regarding a small portion of the loss may not result in forfeiture of the entire coverage unless the

insured is shown to be clearly culpable.”), with Martin v. Farm Bureau Gen. Ins. Co., No. 275261,

2008 WL 1807940, at *6 (Mich. App. Apr. 22, 2008) (“Because the willful and material language

is no longer present in the statute, and the policy language does not require the insured to have

intentionally committed fraud or false swearing about material facts or circumstances, manifest

injustice did not result by the absence of an instruction regarding intent and materiality.”). Nor have

they briefed the issue of whether the fraud or false statement provisions - as opposed to the

misrepresentation provision - even apply to Bates’s claim. In light of the earlier determination by

the Court that a genuine issue of a material fact exists with respect to the threshold question of

whether Bates committed any misrepresentation, it is not necessary at this time to resolve the

secondary question of whether Hartford must prove - and, if so, has proven - intent and/or

materiality. Thus, the Court leaves this issue open for later determination, should it become

necessary to do so.

Any further effort by the Court to parse through this post-claim exchange of words between

Hartford and Bates over his alleged misrepresentations (as reported above) is simply an exercise in

futility without any final resolution of the issue in sight. Furthermore, it gives support to the

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conclusion that - despite the contentions by the respective parties - there exists a genuine issue over

a set of material facts. This, in turn, compels the Court to conclude that the questions of whether

Bates committed misrepresentation, and if so, whether the concealment or fraud provision justified

Hartford’s denial of his claim, are not appropriate for resolution by a motion for a summary

judgment. In fact, a reasonable jury could resolve this issue in either party’s favor. Cf. Aqua Grp.,

620 F. Supp. 2d at 826-30 (denying motion for summary judgment where each side adduced

sufficient evidence that the jury could find for either party with respect to whether insured

committed misrepresentation). Moreover, determinations with respect to Bates’s credibility are

quintessentially within the province of the jury. Therefore, the Court denies both parties’ motions

for summary judgment with respect to Hartford’s misrepresentation defense.

 VI.

For the reasons that have been set forth above, the Court (1) denies Hartford’s motion for

summary judgment and (2) grants in part and denies in part Bates’s counter-motion for summary

judgment.

IT IS SO ORDERED.

Dated: March 3, 2011 s/Julian Abele Cook, Jr. 

Detroit, Michigan JULIAN ABELE COOK, JR.

United States District Court Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on March 3, 2011.

s/ Kay Doaks 

Case Manager

2:09-cv-12840-JAC-MJH Doc # 48 Filed 03/03/11 Pg 15 of 15 Pg ID 690