Opinion
361094
09-01-2022
Henry Smith v. USA Underwriters
LC No. 20-014203-NF
Thomas C. Cameron Presiding Judge, Michael J. Riordan, Kristina Robinson Garrett Judges
ORDER
The motion for immediate consideration is GRANTED.
The delayed application for leave to appeal is DENIED for failure to persuade the Court of the need for immediate appellate review. Defendant is correct that an innocent misrepresentation in the insurance application is generally sufficient for the insurer to rescind the policy, provided that the insurer relied on that misrepresentation when issuing the policy. See Lash v Allstate Ins Co, 210 Mich.App. 98, 103-104; 532 N.W.2d 869 (1995); see also Titan Ins Co v Hyten, 491 Mich. 547, 555-558; 817 N.W.2d 562 (2012). However, before an insurer is entitled to rescind a policy for fraud in the inducement, it must first refund the premiums collected. See Burton v Wolverine Mut Ins Co, 213 Mich.App. 514, 519-520; 540 N.W.2d 480 (1995). Because defendant failed to provide the trial court with any substantively admissible evidence indicating that the premiums were refunded in this case, we are not persuaded that interlocutory review is warranted at this time. See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 380; 775 N.W.2d 618 (2009) ("[T]his Court's review is limited to review of the evidence properly presented to the trial court.").
Garrett, J., would deny the application for leave to appeal because there are several questions of fact to be resolved by the factfinder in addition to whether the premiums were refunded.