D Allstate Insurance Company v. Fremont Insurance Company

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS ALLSTATE INSURANCE COMPANY, UNPUBLISHED June 6, 2024 Plaintiff-Appellee, v No. 365617 Wayne Circuit Court FREMONT INSURANCE COMPANY, LC No. 21-008294-NF Defendant-Appellant. Before: BORRELLO, P.J., and SWARTZLE and YOUNG, JJ. SWARTZLE, J. (dissenting). I respectfully dissent. As an initial matter, although the majority accurately quotes the standard of review as found in Pioneer State Mut Ins Co v Wright, 331 Mich App 396 , 405; 952 NW2d 586 (2020), that standard of review is wrong insofar as it permits an appellate court to review a “trial court’s factual findings” for “clear error” when, as here, the trial court’s decision was made under MCR 2.116(C)(10). Under that court rule, a trial court cannot make a factual finding when reviewing the movant’s arguments; rather, the trial court must view the evidence in the light most favorable to the nonmovant to determine whether “there is no genuine issue of any material fact.” MCR 2.116(C)(10); Jackhill Oil Co v Powell Prod, Inc, 210 Mich App 114, 117 ; 532 NW2d 866 (1995). There is a “square peg in a round hole” situation when one speaks of “clear error” and “no genuine issue of material fact” in the same breath. Moreover, I agree with the majority that the fifth Farm Bureau II factor is inapplicable here. Given that the equitable remedy of rescission is left to the trial court’s sound discretion, Bazzi v Sentinel Ins Co, 502 Mich 390, 409-410 ; 919 NW2d 20 (2018), and not this Court’s discretion, I would merely vacate the trial court’s decision and permit the trial court on remand to assess anew the evidence in light of the relevant factors. For these reasons, I respectfully dissent. /s/ Brock A. Swartzle -1-