Star Steel Supply Co. v. United States Fidelity & Guaranty Co.

465 N.W.2d 17, 186 Mich. App. 475
CourtMichigan Court of Appeals
DecidedAugust 8, 1990
DocketDocket 107774, 110118
StatusPublished
Cited by12 cases

This text of 465 N.W.2d 17 (Star Steel Supply Co. v. United States Fidelity & Guaranty Co.) 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
Star Steel Supply Co. v. United States Fidelity & Guaranty Co., 465 N.W.2d 17, 186 Mich. App. 475 (Mich. Ct. App. 1990).

Opinions

Per Curiam.

In this consolidated appeal, plaintiff Star Steel Supply Company appeals as of right a Wayne Circuit Court order granting summary disposition pursuant to MCR 2.116(0(10) to defendant United States Fidelity and Guaranty Company (Docket No. 107774), and third-party defendants Home Insurance Company and Continental Casualty Company appeal the dismissal of their counterclaim against third-party plaintiff United States Fidelity and Guaranty Company (Docket No. 110118). The trial court held that neither it nor any trier of fact could determine the kind and amount of insurance coverage provided by defendant to plaintiff between 1938 and 1962. We affirm.

On January 2, 1986, Star Steel filed its complaint against usf&g for declaratory relief. Star Steel alleged that since 1920 it had been continuously engaged in the sale and distribution of construction products and materials, some of which may have contained asbestos. Star Steel had been joined as a party defendant in four asbestos-re[477]*477lated personal injury actions in the Wayne Circuit Court. Star Steel was insured by Home Insurance Company from 1973 to the present, by Continental Casualty from 1963 to 1973, and by usf&g from 1938 to 1963. Home Insurance and Continental Casualty assumed Star Steel’s defense pursuant to their policies for each insurer’s respective pro rata share of exposure, but usf&g had refused. Star Steel further alleged that it had been unable to locate copies of its policy with usf&g.

The evidence before the trial court was presented primarily through deposition testimony. Meyer Fishman, former president of Star Steel, was employed by Star Steel from 1929 to 1985. His brother, Benjamin, was an insurance broker and was responsible for obtaining the insurance for Star Steel. Star Steel had many insurance policies and most were with usf&g. Meyer stated that, when he left Star Steel, his brother’s agency handled all the insurance for Star Steel. He was unsure of the dates and types of coverage that Star Steel had during his employment there.

Benjamin Fishman testified that he established the Fishman Agency in the 1930s. One of his clients was Star Steel, for whom he handled all insurance matters. Usf&g was Star Steel’s casualty insurance carrier from the time he started his company. Benjamin was an independent agent who used other insurance companies as well as usf&g. Benjamin wrote whatever coverage was needed. He never spared coverage in order to save a few dollars. Star Steel’s liability policy had high limits of perhaps one to two million dollars. That was an estimate. Benjamin could not recall the wording of the policies or what types of endorsements were on the policies. Because Star Steel did not manufacture any products, it did not need product liability insurance. Benjamin could not [478]*478recall if he wrote product liability insurance for Star Steel.

Mitchell Fishman, Benjamin’s son, has been employed with the Fishman Agency since 1948. Between 1948 and 1960, Mitchell sold various policies to Star Steel, including liability insurance underwritten by usf&g. The polices aggregated the premiums for all of Star Steel’s insurance needs, i.e., workers’ compensation, liability, and fleet insurance. Mitchell specifically remembered that Star Steel had product liability coverage with usf&g. Mitchell could not recall what the policy limits were, but, by affidavit, it appeared that the policy limits were at least $500,000 per year. Mitchell was not aware of any documentary evidence which would show the existence of a contractual relationship between the parties.

There was deposition testimony that product liability is an optional coverage on usf&g policies. Actual insurance policies are kept by usf&g for three years after a file is closed and then they are destroyed. The Detroit branch office keeps an index card file which contains the name of the insured, the policy dates, and the dates of any loss. The cards are kept six to twelve years. The Detroit office had no information regarding any of Star Steel’s policies. The home office records management coordinator in Baltimore, Maryland, was unable to locate any liability policies issued to Star Steel. Usf&g’s superintendent of administrative service, responsible for maintaining records on accounting, underwriting, and personnel, testified that files are destroyed after a policy has expired.

Star Steel filed a motion for the production of documents specifically relating to usf&g’s accounts payable and receivable records. A hearing was held on January 22, 1989, at which the trial court granted Star Steel’s motion and gave usf&g seven [479]*479days in which to produce the documents or produce an affidavit with regard to why it was unable to produce the documents. In response, an affidavit from usf&g’s assistant controller, Robert Hecht, was admitted, which stated that the records Star Steel sought no longer existed because they were destroyed after five years. The trial court noted that only after discovery had been closed did Star Steel bring to the court’s attention that usf&g had not been complying with Star Steel’s discovery requests. The trial court was satisfied that the records requested by Star Steel did not exist.

With regard to usf&g’s motion for summary disposition, the trial court first noted that usf&g was relying on Star Steel’s answers to interrogatories Which indicated that Star Steel had no documentary evidence to establish the existence or the contents of insurance policies issued by usf&g to Star Steel. The trial court recapitulated the deposition testimony which was before it, additionally noting answers to interrogatories which indicated that payroll records of Star Steel showed there was workers’ compensation insurance from usf&g.

The trial court held that the burden of proof was on Star Steel to establish that usf&g provided product liability coverage during the period of time at issue and also to establish the terms of the coverage. The court held that Star Steel had totally failed to establish the terms of the insurance coverage and that there was no way any court could determine the extent and scope of that coverage. Regarding Star Steel’s suggestion that it could prove the insurance coverage by the standard form policy submitted for approval with the State of Michigan, the trial court noted that there was "approximately a three-quarter inch stack of standard forms that may have been used during the period in question.”

[480]*480With regard to the question of usf&g’s alleged bad faith during discovery, the trial court held that there was no evidence on the record to suggest that a diligent search had not been made of usf&g’s records and that it was totally unreasonable to expect usf&g to maintain its records of insurance coverage for all of its insureds dating back to 1932. The trial court also noted that Star Steel did not explain the "two separate and unrelated incidents involving accidental destruction of records of both Star Steel and Fishman Agency.” Star Steel first claims that the trial court erred in granting summary disposition to usf&g and that Star Steel sustained its burden of proving the terms of the contract. We disagree.

A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Id.

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Star Steel Supply Co. v. United States Fidelity & Guaranty Co.
465 N.W.2d 17 (Michigan Court of Appeals, 1990)

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Bluebook (online)
465 N.W.2d 17, 186 Mich. App. 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/star-steel-supply-co-v-united-states-fidelity-guaranty-co-michctapp-1990.