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STATE OF MICHIGAN
COURT OF APPEALS


L&M BRIKHO'S MARKET, INC., d/b/a/ GATEWAY SUPERMARKET, LATIF BRIKHO and MARY BRIKHO, Plaintiffs-Appellants, v EMERSON-PREW, INC., and OAKLAND INSURANCE AGENCY,

UNPUBLISHED November 13, 2007

No. 269806 Wayne Circuit Court LC No. 04-418155-CK

Defendants, and GRANGE INSURANCE COMPANY OF MICHIGAN, INC., Defendant-Appellee.

Before: Davis, P.J., and Schuette and Borrello, JJ. PER CURIAM. Plaintiffs appeal as of right an order of dismissal.1 We affirm in part and reverse in part. I. FACTS Plaintiffs' supermarket experienced a power outage that caused a breakdown in the refrigeration, resulting in a severe loss of inventory. At the time of the outage, plaintiffs believed defendant Grange Insurance Company (Grange) insured the store. When plaintiffs asked Grange for insurance benefits, Grange denied plaintiffs' claim because plaintiffs did not have insurance

1

Although plaintiffs appeal the April 5, 2006 order dismissing Oakland Insurance Agency and Emerson-Prew, Inc., as parties to this action, this appeal pertains largely to the September 13, 2005 order dismissing Grange Insurance Company of Michigan.

-1-


coverage with them. According to Grange, plaintiffs' application for insurance with them was deleted from their files and had never properly been recorded in their system. Grange claimed that plaintiffs' insurance agent, Bruce Lys, had failed to follow the proper procedure to bind insurance coverage for the store. Plaintiffs filed suit against Grange, claiming that Grange was vicariously liable for Lys's actions and owed plaintiffs insurance benefits. Grange moved for summary disposition, and the trial court granted Grange's motion. Plaintiffs now appeal. II. SUMMARY DISPOSITION Plaintiffs first argue that the trial court erred when it granted summary disposition in Grange's favor. Specifically, plaintiffs argue that because they were issued an oral insurance binder from Grange through its agent, Lys, Grange is bound by the acts of its agent. We disagree. A. Standard of Review When reviewing a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10), this Court reviews the record de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). MCR 2.116(C)(10) tests the factual support of a claim. Id. "On review, this Court must consider the record in the light most favorable to the nonmovant to determine whether any genuine issue of material fact exists that precludes entering judgment for the moving party as a matter of law." Laier v Kitchen, 266 Mich App 482, 486-487; 702 NW2d 199 (2005). "Review is limited to the evidence presented to the trial court at the time the motion was decided." Laier, supra at 487. B. Analysis An insurance binder is "`a contract of temporary insurance pending issuance of a formal policy or proper rejection by [the insurer].'" Universal Underwriters Group v Allstate Ins Co, 246 Mich App 713, 721; 635 NW2d 52 (2001), quoting Blekkenk v Allstate Ins Co, 152 Mich App 65, 68; 393 NW2d 883 (1986). "`A binder has generally been defined as a written instrument which is used when a policy cannot be immediately issued, to evidence that the insurance coverage attaches at a specified time and continues until the policy is issued or the risk is declined and notice thereof given.'" Universal Underwriters Group Co, supra at 721, quoting 43 Am Jur 2d, Insurance,

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Michigan Law