Opinion
No. 137971.
June 23, 2009.
Court of Appeals No. 280860.
Leave to Appeal Denied.
CORRIGAN, J., did not participate for the reasons stated in People v Parsons, 728 NW2d 62 (2007).
Arundhati Umesh sustained lacerations to her face when Patrizia Sarkis threw a martini glass into her face. Ms. Sarkis was charged with aggravated assault and pleaded no contest.
Ms. Umesh then sued Ms. Sarkis, alleging that Ms. Sarkis threw the contents of her glass into Ms. Umesh's face after Ms. Umesh accidentally nudged her, and that when Mr. Umesh attempted to separate the two, Ms. Sarkis threw her glass directly into Ms. Umesh's face. Ms. Sarkis asked defendant, her homeowner's insurer, to defend her, but it declined. Ms. Sarkis then sought a declaratory judgment that defendant was obligated to defend her. The trial court granted summary disposition for defendant, ruling that the incident was not a "covered occurrence" under the terms of the relevant policy and fell within the policy's intentional acts exclusion. However, the Court of Appeals reversed because it was unable to conclude that no genuine issue of material fact existed. In particular, the court cited Ms. Sarkis's deposition that her glass "flew out of her hand" and that she "did not know" what happened to the glass.
I would reverse the Court of Appeals judgment and reinstate the order of the trial court. Ms. Sarkis's testimony that her drink glass "flew out of her hand" would seem to contradict most known laws of physics and, in my judgment, constitutes an insufficient basis for proceeding to trial. Rather, in my judgment, the policy's exclusion of coverage for intentional and criminal acts precludes coverage under the instant circumstances. Coverage is precluded where an insured's claim "flies in the face of all reason, common sense and experience." Auto-Owners Ins Co v Harrington, 455 Mich 377, 384 (1997) (quotation marks and citations omitted).