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STATE OF MICHIGAN COURT OF APPEALS

BARBARA PEARSON, Plaintiff/CounterdefendantAppellant, V FLOOD PROFESSIONALS, INC., d/b/a ADVANCED CLEANING EXPERTS, Defendant/Counterplaintiff, PIONEER STATE MUTUAL INSURANCE COMPANY, Defendant-Appellee.

UNPUBLISHED January 24, 2012

No. 298359 Iosco Circuit Court LC No. 08-004152-CK

Before: BECKERING, P.J., and FORT HOOD and STEPHENS, JJ. PER CURIAM. Plaintiff appeals as of right from the trial court's order granting defendant's motion for summary disposition and denying her motion for relief from judgment.1 We reverse and remand for proceedings consistent with this opinion. Plaintiff's vacation residence was damaged because of a water leak that caused the furnace to stop functioning. Plaintiff's neighbor noticed that something was wrong because of steam coming from the residence. He reported the problem to plaintiff, who in turn, contacted defendant, her insurance company. Plaintiff contested the manner in which defendant undertook the remediation of the property. Plaintiff asserted that she sought to prevent the thaw of the property, but defendant had the furnace repaired and ordered it turned on, allegedly causing mold and a mildew smell in the premises. Plaintiff also was concerned about the extent of the removal of drywall in light of the thaw that occurred at defendant's behest.

Defendant Flood Professionals, Inc. d/b/a Advanced Cleaning Experts (Flood) is not a party to this appeal. Therefore, the singular "defendant" refers to the insurance company only.

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Plaintiff and defendant were unable to reach an agreement regarding the amount of insurance benefits. Although plaintiff submitted proof of loss, defendant concluded that the document prepared was insufficient. Consequently, on multiple occasions, defendant extended the deadline for filing the proof of loss form. Defendant continued to reject the proof of loss submitted by plaintiff, again deeming them to be insufficient. However, a review of defendant's records reveals that defendant's agent recommended a settlement of the claim, and defendant prepared a proof of loss form for plaintiff's signature. However, defendant referred the matter to counsel who rejected the settlement and advised that the claim was denied for failing to timely comply with the policy provisions. Plaintiff filed suit alleging breach of contract and negligence against this defendant in Genesee Circuit Court. Defendant filed a motion for summary disposition, but Flood filed a motion for change of venue. The Genesee Circuit Court judge granted defendant's motion for summary disposition and granted Flood's motion for change of venue. Plaintiff filed a motion to reinstate the claims against defendant before the successor trial judge in the new venue. However, the trial court denied the motion, holding that it did not have the authority to review the earlier decision. Plaintiff now appeals. A trial court's ruling on a motion for summary disposition presents a question of law subject to review de novo. Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d 695 (2010). The moving party has the initial burden to support its claim for summary disposition by affidavits, depositions, admissions, or other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts to the nonmoving party to demonstrate a genuine issue of disputed fact exists for trial. Id. The nonmoving party may not rely on mere allegations or denials in the pleadings. Id. Affidavits, depositions, and documentary evidence offered in support of, and in opposition to, a dispositive motion shall be considered only to the extent that the content or substance would be admissible as evidence. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). When ruling on a motion for summary disposition, the court does not assess the credibility of the witnesses. White v Taylor Distrib Co, Inc, 482 Mich 136, 142; 753 NW2d 591 (2008). "Summary disposition is suspect where motive and intent are at issue or where the credibility of a witness is crucial." Foreman v Foreman, 266 Mich App 132, 135-136; 701 NW2d 167 (2005). When the truth of a material factual assertion made by a moving party is contingent upon credibility, summary disposition should not be granted. Id. at 136. The trial court may not make factual findings or weigh credibility when deciding a motion for summary disposition. In re Handelsman, 266 Mich App 433, 437; 702 NW2d 641 (2005). It is the function of the trier of fact to resolve issues regarding credibility and intent. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 174; 530 NW2d 772 (1995). When the evidence conflicts, summary disposition is improper. Lysogorski v Bridgeport Charter Twp, 256 Mich App 297, 299; 662 NW2d 108 (2003). Inconsistencies in statements given by witnesses cannot be ignored. White, 482 Mich at 142-143. When witnesses testify to diametrically opposed assertions of fact, the test of credibility must lie where the system has reposed it

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