Opinion
No. 130460.
June 15, 2007.
Court of Appeals No. 262805.
Order Granting Oral Argument in Case Pending on Application for Leave to Appeal.
We direct the clerk to schedule oral argument on whether to grant the application or take other peremptory action. MCR 7.302(G)(1). The parties shall submit supplemental briefs within 56 days of the date of this order addressing: (1) whether State Farm, by failing to plead release as an affirmative defense in this declaratory relief action, waived its right to oppose plaintiffs' attempt to invoke offensive collateral estoppel as inconsistent with the terms of the parties' Release and Settlement Agreement in the underlying action; (2) whether, for purposes of collateral estoppel, the identity of the jet-ski driver was actually litigated and determined by a final judgment in the underlying action; (3) whether, for purposes of collateral estoppel, State Farm was a party, or in privity with a party, to the underlying action; (4) how an insurer should proceed when it believes its insured is committing fraud to invoke coverage, and does that depend on whether the insurer learns of the conflict of interest during the course of litigation; and (5) if an adverse judgment procured by fraud of the insured is entered, whether the insurer is estopped from contesting liability. The parties should not submit mere restatements of their application papers. Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.