Opinion
Docket No. 6,886.
Decided October 2, 1970.
Appeal from Wayne, Harry J. Dingeman, Jr., J. Submitted Division 1 April 9, 1970, at Detroit. (Docket No. 6,886.) Decided October 2, 1970.
Complaint by Motor State Insurance Company against Robert Leonard and Lucille Leonard for a declaratory judgment that an automobile insurance policy is void as to a "hit-and-run" accident. Summary judgment for plaintiff. Defendants appeal. Reversed and remanded.
Rouse, Selby, Dickinson, Shaw Pike ( Millard Becker, Jr., of counsel), for plaintiff.
Peter R. Barbara, for defendants.
This is an action by Motor State Insurance Company for a declaratory judgment decreeing an automobile insurance policy held by defendant Robert Leonard null and void as to a "hit-and-run" accident which occurred on January 13, 1967. By the express terms of the policy, coverage for such accidents was conditioned upon the insured's filing with the insurer a sworn statement within 30 days from the date of the accident. The trial court entered a summary judgment in the plaintiff's favor and defendants appeal.
Under GCR 1963, 117.2(3), a party may move for a summary judgment where there is no genuine issue as to any material fact. GCR 1963, 117.3 provides that a motion for a summary judgment based upon GCR 1963, 117.2(3) is to be supported by affidavits and that such affidavits, together with the pleadings, depositions, admissions and other documentary evidence, are to be considered by the trial court in ruling on the motion. The record below reveals a material issue of fact as to whether defendants had given plaintiff timely notification of the accident by a series of telephone calls purportedly placed by defendants in January, 1967, to one of plaintiff's branch offices.
Furthermore, defendants raised by affirmative defense another significant factual dispute as to whether plaintiff waived the notice requirement by its entering into extensive negotiations (including submission of the claim to arbitration and the offering of a sum in settlement of the claim) with defendants after plaintiff had denied liability on grounds of defendants' failure to comply with the notice provision. Plaintiff denied that it had intended a waiver by these negotiations but had made a settlement offer and had taken initial steps to arbitration solely to avoid litigation.
Waiver is a matter of intention and is primarily a question of fact. Bielski v. Wolverine Insurance Company (1966), 2 Mich. App. 501, aff'd. (1967), 379 Mich. 280; Strom-Johnson Construction Co. v. Riverview Furniture Store (1924), 227 Mich. 55.
A summary judgment is improper when the pleadings and opposing affidavits reveal a genuine issue of material fact. Tripp v. Dziwanoski (1965), 375 Mich. 619; Sun Oil Company v. Rosborough (1967), 6 Mich. App. 176. The summary judgment issued by the trial court is vacated and the case remanded for trial.
Reversed and remanded.