Homeowners insurance coverage dispute; Whether defendant-insurer waived or was estopped from asserting a residency defense; Martinek v Firemen’s Ins Co; “Reside”; Heniser v Frankenmuth Mut Ins Co

The court held that defendant-insurer’s “failure to assert the residency defense in its initial denial letter was not a knowing waiver, and defendant was not estopped from raising this defense.” It further concluded that reasonable minds could not differ as to whether plaintiff actually lived at the home in question at the time of the loss and thus, the trial court did not err in granting defendant summary disposition on the basis “there was no coverage under the policy.” As a result, the court affirmed summary disposition for defendant. Plaintiff filed a claim for water damage to the home. In rejecting his waiver/estoppel argument, the court noted that “for an insurance company to waive or be estopped from asserting a defense, it must have been aware of facts that would support the assertion of the defense at the time of the denial.” In this case, there was “no evidence on the record that defendant was aware of facts that would support a residency defense until plaintiff was deposed.” While he pointed out “that defendant received some information indicating that [plaintiff’s nephew, F] was residing at the White Cloud home, there is no evidence that defendant had any knowledge of the necessary facts to assert that plaintiff did not reside at the White Cloud home.” As to the coverage issue, the policy did not define the term “reside.” Michigan courts have found that this term has “two different meanings: a legal or technical meaning involving an insured’s intent to return to the property, and a general or popular meaning based on the insured’s actual use of the property as a residence.” The record here showed that plaintiff “rented the home to a relative who paid the full amount of the monthly mortgage and, at best, plaintiff occasionally visited the home. During those visits, he used [F’s] property. He stored no property of his own at the home. At the time of the loss, plaintiff had not set foot in the home for at least a couple of months. Therefore, plaintiff cannot establish a genuine issue of material fact regarding coverage[.]”