Action by an assigned-claims insurer; Auto-Owners Ins. Co. v. Michigan Mut. Ins. Co.; “Third parties”; MCL 500.3175; Spencer v. Citizens Ins. Co.; Priority for payment of personal protection insurance (PIP) benefits; MCL 500.3115; Rescission; Enriquez v. Rios-Carranza (Unpub.); Nonbinding authority; MCR 7.215(C)(1); Paris Meadows, LLC v. City of Kentwood; Whether domicile was relevant; Grange Ins. Co. of MI v. Lawrence; Equitable estoppel; Morales v. Auto-Owners Ins. Co.; Waiver; Walters v. Nadell

Defendant-Auto Club was properly denied summary disposition because a genuine issue of material fact existed as to whether it properly rescinded its insured’s (H) no-fault policy. A pedestrian was injured when he was struck by a vehicle driven by H. An application was submitted to the Michigan Assigned Claims Facility, which assigned the claim to plaintiff-Allstate. The court determined that if H “—the operator, owner, and registrant of the motor vehicle involved in the accident—had a valid no-fault policy issued by Auto Club at the time of the accident, then Auto Club would be a higher priority insurer than Allstate, the assigned-claims insurer. And, as a result, it would be obligated to reimburse Allstate under MCL 500.3175.” Auto Club asserted that H’s policy was rescinded by mutual consent. It relied on Enriquez, which the court found instructive and persuasive, even though nonbinding, and adopted its reasoning as its own. Applying Enriquez, to establish rescission by mutual consent, Auto Club had to show that (1) it sent H “unequivocal notice that it was rescinding her policy, (2) it sent [H] a refund of her premium, and (3) [H] accepted the offer of rescission by cashing the refund check.” It sent her notice of the rescission on 11/10/03, and it presented evidence showing that it sent her a premium refund check 10 days later. Although Auto Club did not have a copy of the check, one of its accountants confirmed that it “had not been returned or escheated. The accountant added that a check that escheated to the state would be a check that was not cashed.” Auto Club contended that “the only reasonable inference was that because the check was not returned or escheated, it must have been cashed. However, despite [H’s] general testimony that she did not recall receiving the rescission notice, she also firmly stated that she ‘never got it.’” She also testified that she changed insurers after the crash due to “a cheaper rate.” Her testimony permitted “a reasonable inference that she did not receive notice of the rescission.” Further, there was no documentary evidence indicating that the check had to be either returned, escheated, or cashed. Reasonable minds could differ on whether H “received unequivocal notice of the rescission and then cashed a premium refund check.” There was also a question of fact as to the applicability of the policy’s fraud-exclusion clause related to where she was living when she applied for the policy.