Riverside Insurance v. Kolonich

329 N.W.2d 528, 122 Mich. App. 51
CourtMichigan Court of Appeals
DecidedDecember 8, 1982
DocketDocket 59090
StatusPublished
Cited by6 cases

This text of 329 N.W.2d 528 (Riverside Insurance v. Kolonich) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riverside Insurance v. Kolonich, 329 N.W.2d 528, 122 Mich. App. 51 (Mich. Ct. App. 1982).

Opinions

Per Curiam.

On February 5, 1981, plaintiff, Riverside Insurance Company, filed a complaint [54]*54for declaratory judgment1 against defendants, Rosemary Kolonich, David Taylor, and Mary Jo Taylor, seeking a judgment that it did not have a duty to defend or pay damages in connection with a pending negligence action brought by Kolonich against plaintiffs insureds, David and Mary Jo Taylor. On July 16, 1981, the trial court granted plaintiffs motion for summary judgment on the basis that the incident which gave rise to the negligence claim was excluded from the homeowner’s insurance coverage furnished by plaintiff to the Taylors. From the grant of summary judgment, defendants appeal as of right.

The record discloses that Rosemary Kolonich filed a complaint on October 22, 1980, claiming that she suffered injuries when she slipped and fell on the Taylors’ driveway on December 17, 1979. Plaintiff initially agreed to represent the Taylors in the negligence matter under the homeowner’s insurance policy, but, after taking the deposition of Rosemary Kolonich, it filed the instant action based on the "business pursuit” exception to the policy.

The special exclusion provision of the policy stated that coverage does not apply:

"(a)(1) to any business property of an Insured or any business pursuits in connection with a business solely owned by an Insured or owned by a partnership of which an Insured is a partner other than (a) premises occupied for office, professional, private school, or studio occupancy specifically added by endorsement, and (b) activities therein which are ordinarily incidental to non-business pursuits * * *.”

Plaintiffs theory was that the Taylors were [55]*55engaged in the continuous business for profit of "firing ceramics for others at their premises”. Thus, it contended that the injuries allegedly sustained by Rosemary Kolonich were excluded from insurance coverage, since they arose out of a business conducted on the Taylors’ premises.

Mary Jo Taylor’s deposition was taken in this matter on March 3, 1981. Therein* she testified that: (1) she owned a kiln for firing ceramics, over 100 ceramic molds, and more than 100 pieces of greenware, (2) she had been interested in ceramics for approximately five years and* at the time of the deposition, taught a weekly ceramics class at her home, which was comprised of five students, (3) at the time of Rosemary Kolonich’s injury, she had approximately ten students, (4) a $2 fee was charged per class, (5) pieces of greenware were sold by her, primarily to class members, (6) a portion of her ceramics activities was devoted to firing green-ware, where she charged one-half of the amount the person paid for the piece, (7) as a result of considering her ceramics functions as a hobby rather than a business venture, she neither reported any income on her tax returns nor possessed a sales tax license, and (8) her husband’s involvement in the activity was limited to carrying molds and greenware to her visitors’ automobiles.

In its summary judgment motion, plaintiff maintained that no genuine issue existed in relation to any material fact, inasmuch as the Taylor depositions established that they were not entitled to defense coverage under the policy. Defendant Kolonich maintains that the depositions established that the ceramic activites were conducted by Mrs. Taylor as a hobby, not for a profit, or, alternatively, that a question of fact exists in regard to the issue. Additionally, Rosemary Kolonich con[56]*56tends, on appeal that, even if the activities constituted a "business pursuit”, plaintiff is estopped from disclaiming coverage because it undertook for many months defense of the claim on the Taylors’ behalf.

In State Mutual Cyclone Ins Co v Abbott,2 the insurer sought to absolve itself from extending coverage to its insured under a business-pursuit exception of the insurance policy. The insured, who was a part-time blacksmith, allegedly caused the horse that he was shoeing to strike and injure the horse’s owner. In reversing the trial court’s holding that the insured was not engaged in a business pursuit when the injury occurred, we set forth the following definition for "business pursuit”:3

" 'To constitute a business pursuit, there must be two elements: first, continuity, and secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.’ ”

Another case involving an insurance company’s attempt to avoid extending coverage under the business-pursuit exception is Randolph v Ackerson,4 where a farmer, the insured party, in an isolated transaction, purchased an old barn with the intention of selling the barn wood. A purchaser of the barn wood was injured while loading [57]*57the wood onto a truck. We upheld the trial court’s ruling that the exception to the insured’s policy of insurance was not applicable because one of the two elements of the two-pronged business-pursuit test was not satisfied, namely, that the insured’s involvement in the activity of selling barn wood was not of a customary or continuous nature.

In summary judgment motions based upon GCR 1963, 117.2(3), the trial court must examine the pleadings, admissions, depositions, affidavits, and other documentary evidence to determine whether a genuine issue of fact exists as to any material fact.5 A trial court should give the benefit of any reasonable doubt to the party opposing the summary judgment, and it must be satisfied that the nonmovant’s claim or defense cannot be supported at trial as a result of a deficiency which cannot be overcome.6

In the matter at bar, a question of fact was raised by the depositional testimony of Mrs. Taylor regarding whether her activities constitute a hobby or an enterprise conducted with a profit motive. Accordingly, we conclude that summary judgment was improvidently granted.

We also note that, in its order granting summary judgment on plaintiffs petition for declaratory relief, the trial court did not address defendant Kolonich’s claim that plaintiffs assumption of a defense on behalf of the Taylors constituted a waiver or estoppel of its right to deny insurance coverage based on an alleged policy exclusion. Nor [58]*58did the trial court rule on the question of whether defendant David Taylor is entitled to a defense and liability protection, even if his wife, Mary Jo Taylor, is excluded from insurance coverage.

In Security Ins Co of Hartford v Daniels,7 this Court approved of an insurance company seeking a declaratory judgment in regard to its obligation to defend its insured. Therein, we stated:

"The Court, in Meirthew, supra [Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965)], was concerned that the insurance company, by defending the insured in the principal suit but not informing him of specific defenses upon which it later intended to rely to avoid liability, denied the insured a fair and timely opportunity to protect his rights.

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Riverside Insurance v. Kolonich
329 N.W.2d 528 (Michigan Court of Appeals, 1982)

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Bluebook (online)
329 N.W.2d 528, 122 Mich. App. 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riverside-insurance-v-kolonich-michctapp-1982.