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declining to find as a matter of law that an insurance policy had been modified after noting the parties had not "expressly waived [the insurance policy term]"
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No. 344926
06-11-2019
HOME-OWNERS INSURANCE COMPANY, Plaintiff/Counterdefendant-Appellee/Cross-Appellant, v. Nancy PERKINS, also known as Nancey Perkins, Defendant/Counterplaintiff-Appellant/Cross-Appellee.
Yeager, Davison & Day, PC (by Phillip K. Yeager and Renee L. Malkowski ) for plaintiff. Robert W. Mysliwiec for defendant.
Yeager, Davison & Day, PC (by Phillip K. Yeager and Renee L. Malkowski ) for plaintiff.
Robert W. Mysliwiec for defendant.
Before: Beckering, P.J., and Servitto and Stephens, JJ.
Per Curiam In this insurance dispute, defendant, Nancy Perkins, appeals by right the trial court's order dismissing plaintiff Home-Owners Insurance Company's claim against her and the order dismissing her counterclaim against plaintiff. Plaintiff cross-appeals the trial court's order dismissing its claim against defendant. At issue in this fire-damage case is the proper interpretation of MCL 500.2833(1)(q) and its impact on the viability of each party's claim. For the reasons set forth in this opinion, we affirm.
I. RELEVANT FACTS AND PROCEEDINGS
The underlying facts are not in dispute. Plaintiff issued a homeowner's insurance policy to defendant for accidental loss and damage to property located in Niles, Michigan. The policy term was from December 6, 2014 to December 6, 2015, and included coverage of $ 129,000 on her dwelling, $ 90,300 on her personal property, $ 32,500 for additional living expenses, and further coverages for debris removal at the property location. On March 4, 2015, fire substantially destroyed defendant's home and personal possessions. She immediately notified plaintiff of her loss. Subsequently, she prepared and submitted an inventory of her personal possessions based on her best guess of the age and purchase price of the items she could recall being in her house, and she submitted a proof-of-loss form based on this inventory. On August 28, 2015, plaintiff wrote a letter to defendant formally denying her insurance claim, alleging that she had committed arson, misrepresented facts in her claim of loss, and failed to comply with other provisions in the fire insurance policy. Plaintiff mailed the letter to defendant in care of her attorney at the time, James Jesse. Plaintiff sent the letter by certified mail, and Jeannette Jesse signed for it on September 11, 2015. Defendant averred in an affidavit submitted to the trial court that she did not receive plaintiff's denial letter.
On October 5, 2016, plaintiff filed suit against defendant, alleging that defendant breached the insurance contract by submitting a claim that was "knowingly inaccurate and grossly exaggerated," by failing to comply with certain terms of the contract, and by concealing material facts and circumstances about her loss "as part of an effort to fraudulently induce" plaintiff to pay her claim. Because of these alleged breaches, plaintiff asserted, it had been obligated to pay $ 56,750 to Fifth Third Bank, the mortgagee of defendant's house. Plaintiff sought a judgment against defendant for $ 56,750.
On February 6, 2017, defendant filed an answer denying plaintiff's allegations. Along with her answer, she filed a counterclaim alleging that plaintiff had breached the policy of insurance by wrongfully denying her claim for coverage under the policy after the fire. She sought the full benefits due under the policy, as well as 12% statutory interest under MCL 500.2006.
MCL 500.2006(4) provides, in relevant part:
If benefits are not paid on a timely basis, the benefits paid bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum, if the claimant is the insured or a person directly entitled to benefits under the insured's insurance contract.
Plaintiff filed an answer and affirmative defenses to the counterclaim, and on April 10, 2017, a filed motion for summary disposition under MCR 2.116(C)(7) (statute of limitations). In its supporting brief, plaintiff argued that the applicable limitations period in the policy and in MCL 500.2833(1)(q) barred defendant's counterclaim. MCL 500.2833(1) mandates the contents required in every fire insurance policy issued or delivered in Michigan. Subdivision (q) requires fire insurance policies to contain a provision declaring:
Neither party disputes the applicability of MCL 500.2833 with respect to the insurance policy at issue in this case; rather, they dispute its proper interpretation.
That an action under the policy may be commenced only after compliance with the policy requirements. An action must be commenced within 1 year after the loss or within the time period specified in the policy, whichever is longer. The time for commencing an action is tolled from the time the insured notifies the insurer of the loss until the insurer formally denies liability.
In purported compliance with this statutory mandate, the fire insurance policy plaintiff issued to defendant contains an amendment to its property-protection section that the parties refer to as the ‘‘suit-against-us’’ provision and that states:
We may not be sued unless there is full compliance with all the terms of this policy. Suit must be brought within one year after the loss or damage occurs. The time for commencing a suit is tolled from the time you notify us of the loss or damage until we formally deny liability for the claim.
Plaintiff argued that defendant's claim accrued when it formally denied her claim in the August 28, 2015 letter. Under the terms of the suit-against-us provision, defendant had until August 28, 2016, to file a suit against plaintiff. According to plaintiff, defendant's February 2017 counterclaim was well outside this one-year period and, therefore, it was barred by the suit-against-us provision in the policy and by MCL 500.2833(1)(q).
In her response to plaintiff's motion to dismiss, defendant argued that MCL 500.2833(1)(q) referred to all actions under the policy, not just actions filed by the insured. Thus, to comply with the statute, the one-year period in the suit-against-us provision had to be interpreted to apply to both plaintiff and defendant, and by filing its own suit after the limitations period expired, plaintiff had intentionally waived the statute-of-limitations defense with respect to defendant's claim. Defendant argued in the alternative that even if the suit-against-us provision were interpreted to apply only to insureds, the trial court should estop plaintiff from enforcing the one-year limitations period because plaintiff purposefully waited until the period had expired before suing her. This delay was clearly prejudicial to defendant because it deprived her of the knowledge that plaintiff had denied her claim and, thus, prevented her from filing suit during the one-year period. Defendant contended that estoppel by laches applied regardless of whether plaintiff's delay was intentional or merely dilatory.
In reply, plaintiff asserted that the language in MCL 500.2833(1)(q), as well as that of the suit-against-us provision, applied only to the insured. Plaintiff did not address defendant's waiver argument but contended that defendant could not use the doctrine of estoppel to circumvent the clear and unambiguous language of the fire insurance policy and that the court certainly could not use estoppel to reform a statute. Finally, plaintiff argued that if the court determined that the language in the statute applied to both the insurer and the insured, then the remedy was to dismiss both actions.
The parties' arguments at the June 5, 2017 hearing on plaintiff's motion for summary disposition were consistent with their briefs. Ruling from the bench, the trial court found that plaintiff had notified defendant of the denial of her claim by sending the August 28, 2015 letter to attorney Jesse and that it was Jesse's responsibility to deliver the denial letter to defendant. No evidence indicated that plaintiff had attempted to lull defendant into thinking it had approved her complaint until the limitations period expired. After determining that waiver and estoppel did not apply as a matter of law, the trial court granted plaintiff's motion for summary disposition of defendant's counterclaim. The court noted that the question remained whether the one-year period in the suit-against-us provision also barred plaintiff's claim but observed that this issue was not before the court because defendant had not filed a motion for summary disposition based on the untimeliness of plaintiff's complaint. The court entered a corresponding order on June 16, 2017.
Subsequently, defendant filed two motions for reconsideration. The trial court denied both motions. Defendant also filed motions seeking permission to present to the jury the evidence supporting her counterclaim or, alternatively, to adjourn the trial so that she could pursue appellate review of the trial court's order granting plaintiff summary disposition of her counterclaim. The trial court granted defendant's request for alternative relief and adjourned the trial, but defendant's delayed application for leave to appeal in this Court was unsuccessful. Home-Owners Ins. Co. v. Perkins , unpublished order of the Court of Appeals, entered April 10, 2018 (Docket No. 340933).
In its order denying defendant's second motion for reconsideration, the trial court again noted that plaintiff had filed its complaint after the one-year period and that whether plaintiff could proceed on its complaint was not before the court because defendant had not filed a motion for summary disposition.
After this Court denied her application, defendant filed a renewed motion to submit to the jury proof of her counterclaim as well as the waiver issue. At the end of the hearing on defendant's motion, the trial court indicated that it had repeatedly encouraged defendant to file a motion for summary disposition to put the question of whether MCL 500.2833(1)(q) applied to insurers as well as insureds squarely before the court, but defendant had not. The trial court denied defendant's renewed motion, but it ruled that MCL 500.2833(1)(q) applies to actions by both insurers and insureds. Because plaintiff had filed its complaint after the one-year limitations period, the court dismissed plaintiff's claim sua sponte.
II. ANALYSIS
A. STANDARDS OF REVIEW
We review de novo questions of statutory interpretation, Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co. , 321 Mich. App. 543, 550, 909 N.W.2d 495 (2017), as well as the interpretation of clear contractual language, DeFrain v. State Farm Mut. Auto. Ins. Co. , 491 Mich. 359, 366-367, 817 N.W.2d 504 (2012). "Waiver is a mixed question of law and fact. The definition of waiver is a matter of law, but whether the facts of a particular case constitute a waiver is a question of fact." Sweebe v. Sweebe , 474 Mich. 151, 154, 712 N.W.2d 708 (2006) (citation omitted). "We review for clear error a trial court's findings of fact and review de novo its conclusions of law." Reed Estate v. Reed , 293 Mich. App. 168, 173, 810 N.W.2d 284 (2011). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Id. at 174-175, 810 N.W.2d 284 (quotation marks and citation omitted). We also review de novo a trial court's decision whether to apply equitable doctrines such as laches. Knight v. Northpointe Bank , 300 Mich. App. 109, 113, 832 N.W.2d 439 (2013).
B. LIMITATIONS PERIOD
In their respective appeals, the parties dispute the proper interpretation of MCL 500.2833(1)(q) and whether the statute's period for filing claims applies only to actions by insureds, as contended by plaintiff, or whether it applies to all actions under the policy including those by insurers, as contended by defendant. This issue presents a matter of first impression. Given the plain language of the statute, we conclude that defendant is correct.
According to MCL 500.2833(1) provides that "[e]ach fire insurance policy issued or delivered in this state shall contain the following provisions:"
That an action under the policy may be commenced only after compliance with the policy requirements. An action must be commenced within 1 year after the loss or within the time period specified in the policy, whichever is longer. The time for commencing an action is tolled from the time the insured notifies the insurer of the loss until the insurer formally denies liability. [ MCL 500.2833(1)(q).]
"The primary goal of statutory interpretation is to give effect to the intent of the Legislature." Allstate Ins. Co. , 321 Mich. App. at 551, 909 N.W.2d 495 (quotation marks and citation omitted). The first criterion in determining intent is the specific language of the statute. US Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing) , 484 Mich. 1, 13, 795 N.W.2d 101 (2009). Courts presume the Legislature to have intended the meaning it plainly expressed. Joseph v. Auto Club Ins. Ass'n , 491 Mich. 200, 206, 815 N.W.2d 412 (2012). "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Allstate Ins. Co. , 321 Mich. App. at 551, 909 N.W.2d 495 (quotation marks and citation omitted). "A court may go beyond the statutory text to ascertain legislative intent only if an ambiguity exists in the language of the statute. But a statutory provision is ambiguous only if it irreconcilably conflicts with another provision or is equally susceptible to more than a single meaning." Id. at 551-552, 909 N.W.2d 495 (citation omitted).
MCL 500.2833(1)(q) provides that "an action under the policy may be commenced," that "[a ]n action must be commenced within 1 year after the loss," and that "[t]he time for commencing an action is tolled ...." (Emphasis added.) The word "an" is an indefinite article, which can signify "any," Meriam-Webster's Collegiate Dictionary (11th ed.), pp. 1, 43, and the word "action" refers generally to "any civil or criminal proceeding," Black's Law Dictionary (10th ed.), p. 35. Accordingly, with respect to the instant dispute, "an action" signifies any civil proceeding brought under the policy. Nothing in the plain language of MCL 500.2833(1)(q) narrows the meaning of "an action" to only those civil proceedings brought by the insured. Further, "an action" is not "equally susceptible" to more than a single meaning, such as "certain actions" or "the action," nor does interpreting "an action" as "any civil proceeding" irreconcilably conflict with other provisions in the statute. Accordingly, no ambiguity exists in the language of the statute. See Allstate Ins. Co. , 321 Mich. App. at 551-552, 909 N.W.2d 495. Hence, the statute plainly means that any civil action under a fire insurance policy may be commenced only after compliance with the policy's requirements and the action must be commenced within one year after the loss (unless the policy specifies a longer time period), with due consideration taken for any period of tolling. Given its plain expression, this is presumably the intent of the Legislature. Joseph , 491 Mich. at 206, 815 N.W.2d 412.
Plaintiff contends that we should interpret MCL 500.2833 to mean the same thing as its predecessor statute, MCL 500.2832. MCL 500.2832, as amended by 1987 PA 168, stated in relevant part, "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss." (Emphasis added.) Plaintiff maintains that only insureds file claims and suits or actions for recovery of their claims, so one should interpret "an action" in MCL 500.2833 as "an action for recovery of any claim." We disagree.
1990 PA 305 repealed MCL 500.2832 and replaced it with MCL 500.2833. The repeal of § 2832 took effect on January 1, 1992.
"[A] change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a clarification of the original legislative intent of the statute." Bush v. Shabahang , 484 Mich. 156, 169-170, 772 N.W.2d 272 (2009), citing Lawrence Baking Co. v. Unemployment Compensation Comm. , 308 Mich. 198, 205, 13 N.W.2d 260 (1944). Accordingly, this Court cannot assume that the change means nothing at all. Bush , 484 Mich. at 170, 772 N.W.2d 272. The Legislature repealed MCL 500.2832 and replaced it with MCL 500.2833, changing the relevant language from "suit or action on this policy for the recovery of any claim" to "an action under the policy...." As indicated earlier, applying the principles of statutory construction to the phrase "an action under the policy" results in the meaning of "any civil proceeding under the policy," a phrase that includes, but is broader than, the § 2832 language of a "suit or action ... for the recovery of any claim...." Assuming that the change in language from § 2832 to § 2833 means something and that the Legislature intends the meaning plainly expressed in § 2833, it cannot then reasonably be maintained that "an action under the policy" means the same thing as a "suit or action on this policy for the recovery of any claim...." See Bush , 484 Mich. at 170, 772 N.W.2d 272 ; Joseph , 491 Mich. at 206, 815 N.W.2d 412.
Plaintiff also contends that allowing a party to bring an action "only after compliance with the policy requirements " is another clue that MCL 500.2833(1)(q) refers only to insureds because only insureds have policy requirements with which they must comply before filing an action. (Emphasis added.) This assertion is belied by the case at bar. Plaintiff asserts in its complaint that it was "obligated" to pay $ 56,750 to Fifth Third Bank, defendant's mortgagee, and that it is bringing this action as a subrogee of the bank. These assertions illustrate that there were policy-based requirements plaintiff had to fulfill before it could file suit against defendant. Specifically, according to the mortgage clause in the fire insurance policy, plaintiff had to "pay the mortgagee any sum for loss under this policy...." Only then would plaintiff meet the requirements set forth in the policy that allowed it to sue defendant as the bank's subrogee. Therefore, plaintiff also had policy requirements to comply with before it could bring this civil proceeding against defendant. Plaintiff next argues that interpreting the policy and the statute to apply the limitations period to insurers would be illogical for two reasons. The first reason is essentially that such interpretation would contradict the understanding plaintiff has of the statute's meaning. We have already addressed the proper interpretation of 500.2833(1)(q). The second reason is that "there are situations where an insurer's cause of action would accrue outside that time." In light of the tolling period from the time the insured notifies the insurer of the loss until the insurer formally denies liability, it is not clear that plaintiff is correct in this assertion. Even so, this is not a reason to read into the statute a restriction contrary to the language of the statute. The plain language of MCL 500.2833(1)(q) applies to "an action" without distinguishing between whether the insured or the insurer files the action. Where, as here, "the language of the statute is clear, we presume that the Legislature intended the meaning it expressed." Reynolds v. Bureau of State Lottery , 240 Mich. App. 84, 87, 610 N.W.2d 597 (2000). Further, that MCL 500.2832 applied the limitations period to suits "for the recovery of any claim" under the policy signifies that the Legislature knew how to restrict applicability of the limitations period in the current statute to insureds had it elected to do so. See Inter Coop. Council v. Dep't of Treasury , 257 Mich. App. 219, 227-228, 668 N.W.2d 181 (2003) (explaining that the Legislature is presumed to be aware of the principles of statutory construction and to know of existing laws on the same subject when it enacts new laws). It did not, and this Court "may not rewrite the plain language of the statute and substitute [its] own policy decisions for those already made by the Legislature." McGhee v. Helsel , 262 Mich. App. 221, 226, 686 N.W.2d 6 (2004). In the instant matter, the suit-against-us provision in the fire insurance policy set forth a one-year limitations period applicable only to actions brought by the insured. As defendant correctly argues, this is contrary to the mandate set forth in MCL 500.2833(1)(q). Therefore, the suit-against-us provision is absolutely void. MCL 500.2860. When a provision in a fire insurance policy is absolutely void, the relevant statutorily mandated provision takes its place. Randolph v. State Farm Fire & Cas. Co. , 229 Mich. App. 102, 105-107, 580 N.W.2d 903 (1998) ; see also Jimenez v. Allstate Indemnity Co. , 765 F. Supp. 2d 986, 994-995 (ED Mich., 2011). Consequently, the one-year period of limitations, with tolling, provided by MCL 500.2833(1)(q) should be read into defendant's fire insurance policy. Id. Because both parties filed their actions after the applicable period set forth in MCL 500.2833(1)(q), both of their actions were subject to dismissal under MCR 2.116(C)(7) unless any of defendant's equitable arguments have merit, which we will address in turn.
Under MCL 500.2860, "[a]ny provision of a fire insurance policy, which is contrary to the provisions of this chapter, shall be absolutely void, and an insurer issuing a fire insurance policy containing any such provision shall be liable to the insured under the policy in the same manner and to the same extent as if the provision were not contained in the policy."
The decisions of lower federal courts are not binding on this Court, but they may be persuasive. Abela v. Gen. Motors Corp. , 469 Mich. 603, 607, 677 N.W.2d 325 (2004).
Although plaintiff does not raise it as an issue, given the trial court's interpretation of MCL 500.2833(1)(q), we find no fault in the court's decision to summarily dismiss plaintiff's action without a formal motion being filed by defendant. MCR 2.116(I)(1).
C. WAIVER
Defendant contends that plaintiff's filing of its complaint beyond the one-year limitations period constituted an offer to waive enforcement of the limitations period and to litigate the insurance policy and that her filing a counterclaim constituted acceptance of plaintiff's offer. Thus, according to defendant, the parties mutually modified the insurance policy to waive the one-year limitations period. Plaintiff denies having waived the one-year limitations period and contends that if MCL 500.2833(1)(q) is interpreted to apply to both parties, the proper result is dismissal of both claims.
An insurance policy is "subject to the same contract construction principles that apply to any other species of contract." Rory v. Continental Ins Co , 473 Mich. 457, 461, 703 N.W.2d 23 (2005). "[U]nless a contract provision violates law or one of the traditional defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written." Id. Traditional defenses include waiver and estoppel. Id. at 470 n. 23, 703 N.W.2d 23.
A waiver is "the intentional and voluntary relinquishment of a known right." Moore v. First Security Cas. Co. , 224 Mich. App. 370, 376, 568 N.W.2d 841 (1997). "[A] valid waiver may be shown by express declarations or by declarations that manifest the parties' intent and purpose, or be an implied waiver, evidenced by a party's decisive, unequivocal conduct reasonably inferring the intent to waive." Patel v. Patel , 324 Mich. App. 631, 634, 922 N.W.2d 647 (2018) (quotation marks and citations omitted). "[M]utuality is the centerpiece to waiving or modifying a contract," and "a party alleging a waiver or modification must establish a mutual intention of the parties to waive or modify the original contract." Quality Prod. & Concepts Co. v. Nagel Precision, Inc. , 469 Mich. 362, 364, 372, 666 N.W.2d 251 (2003). "This mutuality requirement is satisfied where a waiver or modification is established through clear and convincing evidence of a written agreement, oral agreement, or affirmative conduct establishing mutual agreement to modify or waive the particular original contract." Id. at 364-365, 666 N.W.2d 251. When a party "relies on a course of conduct to establish waiver or modification, the law of waiver directs our inquiry and the significance of written modification and anti-waiver provisions regarding the parties' intent is increased." Id. at 365, 666 N.W.2d 251. "Mere knowing silence generally cannot constitute waiver." Id. "The party asserting the waiver bears the burden of proof." Cadle Co v. Kentwood , 285 Mich. App. 240, 255, 776 N.W.2d 145 (2009).
Defendant does not contend that the parties expressly waived the one-year limitations period in the fire insurance policy. Rather, the gravamen of her argument is that by filing its complaint beyond the limitations period, plaintiff signaled its intent to waive the limitations period and to litigate the fire insurance policy. As support for this position, defendant relies on Capital Mtg. Corp. v. Coopers & Lybrand , 142 Mich. App. 531, 369 N.W.2d 922 (1985), which entailed a lawsuit arising out of the defendant accounting firm's failure during a routine audit to detect embezzlement perpetrated by employees of the plaintiff mortgage company. Defendant's reliance is misplaced.
During the course of the dispute underlying Capital Mtg. Corp. , the trial court granted the accounting firm's motion to add the mortgage company's insurer to the dispute as a party plaintiff. Id. , 142 Mich. App. at 533, 369 N.W.2d 922. After a jury returned a verdict in favor of the mortgage company, the accounting firm moved for summary disposition, asserting that it was entitled to arbitrate its liability to the insurer under a decades-old agreement between the accounting firm and a company whose obligations the insurer had assumed in a merger. Id. at 534. The trial court agreed and ordered the matter to arbitration. Id. , 369 N.W.2d 922. The insurer appealed the trial court's order, and this Court reversed the trial court's order, concluding that the accounting firm's action of moving for summary disposition constituted an implied waiver of the arbitration agreement. Id. at 536, 369 N.W.2d 922. The Court stated that a waiver is implied "when a party actively participates in litigation or acts in a manner inconsistent with its right to proceed to arbitration." Id. at 535, 369 N.W.2d 922. The Court reasoned that while the stated purpose of the arbitration agreement between the accounting firm and the insurer was to "avoid insurer-accountant lawsuits," the accounting firm had disavowed that purpose by bringing the insurer into its lawsuit with the mortgage company and by filing a motion for summary judgment, "indicate[ing] an election to proceed other than by arbitration." Id. at 535-536, 369 N.W.2d 922.
Defendant argues that just as the accounting firm in Capital Mtg. Corp. revoked the arbitration agreement by joining the insurer to the underlying lawsuit, so also plaintiff revoked the one-year limitations period by filing its complaint beyond the limitations period. Defendant's analogy is inapt because plaintiff did not act inconsistently with the rights granted it by its insurance contract with defendant. In Capital Mtg. Corp. , by acting contrary to its right under the arbitration agreement, the accounting firm impliedly rejected the agreement and waived the right to arbitrate. In the case at bar, the suit-against-us provision in the insurance policy did not limit the time in which plaintiff could sue, although in contravention of MCL 500.2833(1)(q). Thus, when plaintiff filed its complaint against defendant, it was not disavowing any clause in the contractual agreement it had with defendant thereby inviting defendant to do the same. Thus, Capital Mtg. Corp. does not compel us to conclude that by filing a complaint outside the limitations period, plaintiff revoked its right to enforce the limitations period against defendant.
Defendant next argues that whether plaintiff intended to waive the limitations period by filing an untimely complaint should at least be a question of fact for the jury to resolve. However, apart from the fact that plaintiff filed its complaint more than a year after denying defendant's claim, defendant points to no record evidence from which a jury could reasonably infer plaintiff's intent to waive. See Patel , 324 Mich. App. at 634, 922 N.W.2d 647. In fact, copious record evidence clearly indicates plaintiff's intent not to waive, not the least of which is plaintiff's acknowledgment against its own interest that if insurers are subject to the one-year limitations period, then the limitations period bars its complaint and, for that matter, defendant's assertion that plaintiff waited to file its suit in order to sandbag her until after her right to sue expired. In sum, although defendant may be eager to dispense with the one-year limitations period so as to save her counterclaim, she cannot do so unilaterally and she has not met her burden to establish by clear and convincing evidence a mutual intent to waive the limitations period. See Quality Prod. & Concepts Co. , 469 Mich. at 372, 666 N.W.2d 251 ; Cadle Co , 285 Mich. App. at 255, 776 N.W.2d 145.
D. ESTOPPEL
Finally, defendant contends that plaintiff's delay in filing suit prejudiced her by depriving her of the opportunity to learn that plaintiff had denied her insurance claim and, consequently, of her opportunity to timely file a counterclaim. On that basis, defendant asserts that plaintiff should be estopped from enforcing the one-year limitations period to bar her counterclaim. We disagree.
"Estoppel by laches is the failure to do something which should be done under the circumstances or the failure to claim or enforce a right at a proper time." Wells Fargo Bank, N.A. v. Null , 304 Mich. App. 508, 537, 847 N.W.2d 657 (2014) (quotation marks and citation omitted). "To successfully assert laches as an affirmative defense, a defendant must demonstrate prejudice occasioned by the delay." Id. at 538, 847 N.W.2d 657 (quotation marks and citation omitted). Typically, "[l]aches is an equitable tool used to provide a remedy for the inconvenience resulting from the plaintiff's delay in asserting a legal right that was practicable to assert." Knight , 300 Mich. App. at 115, 832 N.W.2d 439. A party "guilty of laches" is "estopped" from asserting a right it could have and should have asserted earlier. See Presque Isle Co. v. Presque Isle Co. Savings Bank , 315 Mich. 479, 489, 24 N.W.2d 186 (1946).
As the trial court found, the record establishes that plaintiff did not deny defendant an opportunity to learn that her insurance claim had been denied in time to file her own suit. Plaintiff sent a denial letter dated August 28, 2015, to defendant in care of her then - attorney, whose office signed for the letter on September 11, 2015. At that point, the responsibility fell to defendant's attorney to pass the letter along to defendant. That he apparently did not may give defendant cause to raise concerns about her attorney, but it does not support her laches argument. Even if defendant's attorney did not pass the denial letter along to her, defendant was aware that she had heard nothing from the insurance company and had received no insurance money; nevertheless, she slept on her right to seek enforcement of the policy for over a year.
Defendant intimates that plaintiff intentionally delayed in filing its lawsuit in order to prevent her from timely filing her own action within the one-year limitations period. However, plaintiff's failure to file its action under the policy in no way prevented defendant from filing her own action under the policy. In any event, it is apparent from the suit-against-us clause in the insurance policy that plaintiff did not deem itself bound by the limitations period set forth in MCL 500.2833(1)(q). Accordingly, the untimely filing of plaintiff's complaint is not evidence of plaintiff's intent to delay.
Finally, assuming for the sake of argument that laches does apply, the remedy would be to estop plaintiff from asserting its subrogee claim against defendant, not to ignore enforcement of the limitations period. See Lothian v. Detroit , 414 Mich. 160, 175, 324 N.W.2d 9 (1982) (stating that laches is "a cut-off measure, interposed as a defense designed to lay to rest claims which are stale as well as prejudicial to the defendant"). Defendant cites no authority for the proposition that when a party sleeps on one right, estoppel by laches operates to prevent that party from asserting a different right, one on which the party has not slept. See MCR 7.212(C)(7) ; Woods v. SLB Prop. Mgt., LLC , 277 Mich. App. 622, 626, 750 N.W.2d 228 (2008) (noting that appellants must support their arguments by citation to appropriate authority).
III. CONCLUSION
The suit-against-us provision in the fire insurance policy does not comply with MCL 500.2833(1)(q) because it purports to apply only to the insured. The limitations period regarding the commencement of actions set forth in MCL 500.2833(1)(q) applies to both insureds and insurers. Because both parties filed their claims after the limitations period set forth in MCL 500.2833(1)(q), which must be read into the insurance policy, neither party's claim was timely. And because defendant's waiver and estoppel arguments lack merit, the trial court did not err by dismissing both parties' actions.
Affirmed.