Articles Posted in Other Stuff

Darren Legato

By Darren K. Legato, Serafini, Michalowski, Derkacz & Associates, PC

Michigan Courts have spent an exorbitant amount of time discussing the issue of “Domicile” versus “Residency,” though it seems almost all of it recently has centered around claims for Personal Protection Insurance (“PIP”) benefits and the order of priority for payment of those benefits under the Michigan No-Fault Act, specifically MCL 500.3114. In fact, it was re-visited earlier this year in relation to PIP benefits when the Court of Appeals issued its published decision in Mapp v Progressive Ins Co.[1]

Mapp was of great importance in the No-Fault world for its ultimate proposition:

[A] no-fault insurance policy may provide broader coverage than that mandated by the no-fault act, even with respect to a mandated coverage such as PIP benefits. That is, while a no-fault insurer must provide at least the minimum coverage required by statute (i.e., for relatives domiciled in a named insured’s household), it may provide coverage for a broader group of persons (e.g., for relatives residing in a named insured’s household).[2]

In the non no-fault world, however, is where Mapp’s discussion of domicile versus residency becomes so intriguing. In Grange Ins Co of Michigan v Lawrence,[3] the Michigan Supreme Court made clear that domicile meant something difference than residency. Domicile required an intent to remain, while a residency was a place of abode or dwelling.[4] A person can have only one domicile but may have more than one residence. In Mapp, a question turned as to whether the plaintiff in that case was a “resident” of the same household as the policy’s named insured in order to provide coverage.

The Court in Mapp noted that Black’s Law Dictionary defined “residence” to mean “[t[he act or fact of living in a given place for some time” or “the place where one actually lives.”[5]Likewise noting that Webster’s New World College Dictionary (3d ed) defined the term “reside” to mean “to dwell for a long time; have one’s residence; live (in or at).”[6] This next sentence, though, was the most telling:

One could conceivably reside only in one’s domicile, reside in two households, or reside outside of one’s domicile.[7]

With all of these different potential definitions of “residence” laid out by Michigan Courts, what does this mean for those looking for insurance coverage that is not mandated by statute and for which “residency” is required? For insurance policies that do not happen to provide a definition for “residency” or “resident,” it likely means the battle has only just begun.

Take this hypothetical situation: A person is seeking personal injury liability coverage under a homeowners’ or automobile insurance policy where they are not the named insured. This person sometimes stays overnight in the household of the named insured, may even have their own room, keep some belongings in the household, and have a family relationship to the named insured. Maybe they spend 30-40% of their time at the household of the named insured. But the person’s domicile is clearly in another location.

The insurance policy under which they are seeking coverage indicates it will provide coverage if they are related to the named insured and a “resident” of the named insured’s household. But the term “resident” is not defined. Will this person be provided coverage? The insurance companies surely will try to avoid coverage in this situation, while the person seeking coverage, and likely those injured by their actions, will have a say in this fight as well. There is no easy answer.

The Court in this case has a role to determine the contractual agreement between the insurer and the insured and effectuate the intent of the parties.[8] The rights and duties of parties to a contract are derived from the terms of the agreement.[9] But what happens when a term is argued to mean different things by different parties? A contract provision is considered ambiguous when its words can reasonably be understood in different ways.[10] According to the Court of Appeals recent decision in Mapp, it seems that the term “Resident” or “Residency,” if undefined in an insurance policy, could lead the courts to hold it as ambiguous. This wouldn’t be the first time, but it has been awhile and is potentially worth revisiting. In Ortman v Miller, the court stated:

“Resident” has no technical meaning, and no fixed meaning applicable to all cases, but rather it has many meanings, and is used in different and various senses, and it has received various interpretations by the courts. Generally, the construction or signification of the term is governed by the connection in which it is used, and depends on the context, the subject matter, and the object, purpose, or result designed to be accomplished by its use, and its meaning is to be determined from the facts and circumstances taken together in each particular case.[11]

If the courts are to find the term “resident” or “residency” to be ambiguous, they are likely to rule whichever way provides coverage under the policy. As a general rule, unless language of an insurance policy unambiguously so requires, a policy should not be construed to defeat coverage.[12] Moreover, exclusionary clauses in insurance policies are strictly construed in favor of the insured.[13] In other words, if finding our hypothetical person a “resident” provides them coverage under the policy, that is how the court is likely to lean. Or, if finding our person a “resident” of the household would trigger an exclusionary clause and negate coverage, the court is likely to find against residency and in favor of coverage.

Truth be told, there are so many different factual scenarios that it is impossible to predict an outcome without knowing the specifics of a situation. What if the person in our hypothetical was a minor of divorced parents with two legal residences but spends a disproportionate amount of time at one home rather than the other? What if the insurance application fails to list the person as a “resident” of the household? Do any of these things matter? Stay tuned, because 2024 may just provide us with some answers.

About the Author

Darren Legato is a Partner at Serafini, Michalowski, Derkacz & Associates, PC. Darren focuses his practice on personal injury, premises liability, first and third party no-fault, and general civil litigation.

In compliance with the governor’s order regarding shelter in place and stay safe at home policies, the firm has implemented the following policies consistent with Executive Order 2020-21.

Pursuant to Section 4 paragraph (b) the firm has identified its essential employees necessary to conduct minimal business transactions, like banking, payroll processing, employee benefits and ensuring that those of us that are working from home have the ability to work remotely.   Each designated employee has a “transit letter” within his or her possession.

For compliance with the executive order the following information is available:

SMDA was hired by a Michigan family to compel an insurance company to pay Long Term Care benefits for their elderly mother who had been receiving care at a Long Term Care facility.  The family had purchased an insurance policy to help defray the cost of care for their mother who had developed a number of age related medical problems including Alzheimer’s.  The insurer initially agreed to pay the daily benefit but changed course rejecting the claim alleging that their mother  no longer met the policy requirements because it claimed she was capable of performing most of her activities of daily living unassisted.

After reviewing the medical records from her doctors and the long term care facility SMDA filed suit against the Insurer for its breach of the insurance contract.  As a result of the litigation, the Long Term Care Insurer agreed to pay all of the past due benefits as well as refund the premiums that were paid after the wrongful denial of benefits.  Regular readers of this blog will recognize this as a bit of an outlier as it is not a claim for Long Term Disability Insurance nor does it involve the ERISA statute.  However, we were happy to help this family obtain the Insurance benefits that they had paid for and that will allow their mother to continue to receive the quality of care she needs in her time of need.  If you have a claim for Long Term Care benefits that you believe was wrongfully denied or terminated, please feel free to give SMDA a call to discuss.

While this blog is normally devoted to all things Long Term Disability, I wanted to give a shout out to my legal partner, Phil Serafini who obtained an outstanding result in a automobile no-fault case.

SMDA was contacted by the mother of a minor who was involved in a serious one car MVA on 7/23/12 one day before a lawsuit had to be filed to force their car insurance company, Home – Owners, to pay her daughter’s Michigan No-Fault Insurance Benefits. Their insurance company denied the claim because at the time of the MVA, the client was 15 years old and driving, contrary to Michigan law, without a parent in the car and her mother had given a statement to Home-Owners that her daughter did not have permission. Her father allegedly made a comment at the scene that could be construed as meaning that his daughter did not have permission as well.

The primary issue for trial was whether the minor had her parents’ permission to take their car on the date of the MVA. If she had taken the vehicle without permission, she would be barred from no fault benefits under MCL 500.3113(a). Her mother testified at trial that Alison had permission and that she wasn’t initially truthful with the Home-Owners adjuster as she was concerned she could go to jail as the owner of the vehicle and be unable to care for her catastrophically injured daughter. Her father testified at trial that Alison had permission the day of the MVA and that he didn’t recall the alleged statement at the accident scene. However, if such statement was made, it would have been directed towards her mother as he initially disagreed with her decision to let Alison take and operate the vehicle without a parent present. Alison’s discovery deposition, now deceased, was read at trial. She also testified she had parents’ permission to regularly take and use the car before and on the date of the MVA.

While this Blog is usually devoted to issues involving LTD claims and cases, I felt I needed to go off topic for a minute.

The Michigan Supreme Court issued a decision this past week in a case where a disabled young man drowned in a public swimming pool. Investigation revealed that the lifeguard on duty was distracted, not in his designated position, and ignored several calls for help from another student who saw the disabled young man under water.

In an opinion written by (Justice) Brian Zahra the Court dismissed the claim finding that the lifeguard’s failure to act was not the proximate cause of the young man’s death even though timely action might have prevented his death. Instead, and I am not making this up, the Court determined the proximate cause of death was “that which caused him to remain submerged in the deep end of the pool without resurfacing.”

The Michigan Department of Insurance and Financial Services released its list of complaint ratios for 2013 recently. Leading the pack by a wide margin, with 101 complaints, State Farm Mutual Auto Insurance Company had more than twice the volume of complaints than its nearest competitor. Although, to be fair, if you added up all of the complaints against Allstate and related entities it is pretty close. By my count there were (14+27+7+46=94) complaints against Allstate and Esurance.

These results come as no surprise as our firm frequently sees claims denied by each of these companies.

SMDA partner Patrick Derkacz recently attended the America Conference Institute’s Long Term Disability Insurance Seminar in New York City. The two day conference was attended by some of the top practitioners in the Long Term Disability Insurance Arena.

The conference agenda included many cutting edge topics including:

Discovery Scope & Limitations “360”: Key Strategies to Make Discovery Useful and Meaningful to Your Case and How to Tailor and Narrow Broad Requests
Innovative Pre-Trial Strategies for Disability Insurance Claims: Settlement, Mediation, Attorney’s Fees and More
The Current Role of the IME’s Evaluation‚ the Treating Physician’s Opinion‚ the FCE‚ and Medical Records in the Disability Claims Process Continue reading

According to a CDA press release disability companies paid out more than 8 billion dollars in disability insurance payments in 2010. This included more than 139,000 new disability claim approvals, a small increase over the previous year’s numbers.

Diseases of the musculoskeletal system and connective tissue–such as arthritis, spine disorders and back pain were the leading cause of both new and continuing claims. The overwhelming majority of claims (90%) were caused by illness rather than accicdent.

For more information visit the CDA’s website here.

Michigan Lawyers Weekly recently published an article “Long term Disability Insurance and ERISA” written by SMDA Partner, Patrick Derkacz. Following is an excerpt from the article.


So your client got sick or hurt and hasn’t been able to work for months. They applied for LTD benefits when their doctor told them they cannot work anymore and haven’t had a paycheck for months. They are behind on their mortgage and car payment. They are getting hammered by late fees and might lose the house. They are holding on by their fingernails. They call in a panic because they just received a letter from the LTD insurer, explaining that the claim has been denied because the Insurer’s in-house nurse determined “there is no objective evidence that you are unable to perform the material and substantial duties of your occupation.”

Justice Robert Young is up for re-election in November. Each and every worker in the State of Michigan should remember his decision in the recent Alderman v. J.C. Development Communities case.

On October 9, 2006, Randy Alderman was part of a crew of six men working on a homesite in a new subdivision, adjacent to some power lines. As the crane lowered one of the forms onto the foundation, it contacted a power line. A jolt of electric current flowed through the crane and down the chain to the form and the metal “whaler” plaintiff was using to control the form from the ground. Plaintiff was knocked unconscious and his hands and feet were severely burned, requiring skin grafts.

Justice Young reversed the Court of Appeals decision and threw out Randy’s case. Why? Because “The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.” I guess in Justice Young’s world since only 6 people were at risk of electrocution and only one guy actually got electrocuted its no big deal. I suspect that Randy Alderman and his family might disagree.