COA 375797 JOYS MALCOLM KING JR V MEMBERSELECT INSURANCE COMPANY Opinion - Per Curiam - Unpublished 8/25/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JOYS MALCOLM KING, JR.,
Plaintiff-Appellant,
UNPUBLISHED
August 25, 2026
1:07 PM
v No. 375797
Wayne Circuit Court
MEMBERSELECT INSURANCE COMPANY, LC No. 22-013145-NI
Defendant-Appellee
and
JOHN DOE, MICHIGAN ASSIGNED CLAIMS
PLAN, and MICHIGAN AUTOMOBILE
INSURANCE PLACEMENT FACILITY,
Defendants.
Before: ACKERMAN, P.J., and BAZZI and LIEVENSE, JJ.
LIEVENSE, J. (dissenting).
Before oral argument, we ordered the parties to file supplemental briefs addressing whether
this Court had jurisdiction considering its recent holding in Stanley v Farmers Ins Exch, ___ Mich
App ___, ___; ___ NW3d ___ (2026) (Docket No. 374881); slip op at 2, that “where a party agrees
to a final dismissal with the same opposing party and fails to reserve appellate rights, the stipulated
dismissal extinguishes any claim of appeal from earlier rulings involving that party.” Because I
believe Stanley is distinguishable and does not require us to dismiss this case for lack of
jurisdiction, and I would address the merits of this appeal, I dissent.
I. JURISDICTION AND STANLEY
For context relevant to jurisdiction, and as the majority summarizes, plaintiff’s complaint
included five counts: a third-party negligence count against John Doe, the unknown hit-and-run
driver (Count 1); third-party UM and UIM counts against MemberSelect for damages permitted
under the policy (Counts 2 and 3); a first-party count for PIP benefits against MemberSelect (Count
4); and a first-party count for PIP benefits against the MAIPF in the event plaintiff was ineligible

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for benefits from MemberSelect (Count 5). The trial court first granted partial summary
disposition and dismissed Counts 2 and 3 against MemberSelect in a nonfinal order. Later, after
resolving the PIP claims, plaintiff, MemberSelect, and the MAIPF stipulated to dismiss Counts 4
and 5.1
The plaintiff in Stanley filed a first-party one count complaint for PIP benefits against
Auto-Owners Insurance Company and the MAIPF. Id. at ___; slip op at 1. Auto-Owners denied
liability, and Farmers Insurance Exchange was assigned as the servicing insurer for the assigned-
claims plan and assumed defense of the case. Id. at ___; slip op at 1-2. After the trial court
dismissed Auto-Owners from the case, Farmers moved for partial summary disposition, arguing
that the plaintiff could not recover money for certain medical bills because plaintiff had assigned
her rights to be paid for those bills to the medical provider. Id. at ___; slip op at 2. Following a
hearing, the trial court agreed with Farmers and granted partial summary disposition, ruling the
plaintiff could not pursue claims to recover money for those medical bills. Id. The plaintiff and
Farmers later agreed to a stipulated order dismissing the plaintiff’s complaint for PIP benefits with
prejudice pursuant to an agreement to submit the matter to binding arbitration. Id. Because the
plaintiff did not include a reservation of rights to appeal the earlier order granting partial summary
disposition to Farmers for those specific medical bills, this Court held plaintiff was not an
aggrieved party within the meaning of MCR 7.203(A)(1), and that it lacked jurisdiction over the
appeal. Id. at ___; slip op at 3.
In its supplemental brief in this case, MemberSelect argues that Stanley bars plaintiff’s
appeal because it is not an aggrieved party. Plaintiff disagrees, arguing in the alternative that: (1)
Stanley was wrongly decided; (2) Stanley is distinguishable because here the prior order addressed
two distinct counts separate from the count dismissed in the stipulated order; and (3) even if this
Court lacks jurisdiction, it should exercise its discretion and consider the merits of the case as if
on leave to appeal or remand the case to the trial court to consider other relief.
I agree that Stanley is distinguishable. While Stanley contains broad language regarding
the impact of a stipulated dismissal order involving the same parties that does not reserve appellate
rights, the complaint in that case only included one count, for PIP benefits, and the earlier grant of
partial summary disposition pertained to specific claims for money to cover certain medical
expenses as part of the PIP benefits that had been assigned to a medical provider, not dismissal of
any counts. Thus, Stanley held the plaintiff was no longer “aggrieved” and we lacked jurisdiction
when the subsequent stipulated order dismissed the one count on which the plaintiff had sought
and was denied coverage for the specific medical bills, and did not reserve appellate rights.
Important to the analysis in Stanley was that the plaintiff was not “aggrieved” by “an order to
which that party had consented.” Stanley, ___ Mich App ___, slip op at 2.
Here, on the other hand, plaintiff had not consented to the earlier nonfinal order granting
partial summary disposition dismissing Counts 2 and 3 for UM and UIM benefits. And Counts 2
and 3 were third party claims brought in part because the motorist was unidentified, and those
counts sought relief distinct from the PIP benefits sought in Counts 4 and 5 that plaintiff later
agreed to dismiss in the stipulated order. There is a difference between an earlier order that
1 It is not clear whether the trial court ever addressed Count 1.

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dismisses entire counts like in this case, and the earlier order in Stanley that precluded recovery
for certain medical bills sought in the single-count2 complaint that the plaintiff then agreed to
dismiss in the subsequent stipulated order without reserving appeal rights.
Thus, while plaintiff settled Count 5 for PIP benefits with MAIPF and later agreed to
dismiss that count, that settlement did not include potential recoverable damages in plaintiff’s
third-party claims against the unknown motorist (Count 1) or against MemberSelect for UM or
UIM coverage, where MemberSelect stood in the shoes of the tortfeasor, the unknown driver who
committed the hit-and-run (Counts 2 and 3). No one thought plaintiff was giving up his right to
appeal the dismissal of his third-party UM or UIM counts when he agreed to dismiss his PIP
counts. I would therefore conclude that plaintiff is an aggrieved party under MCR 7.203(A)(1)
and that we have jurisdiction, and address the merits of this case.
II. MERITS ANALYSIS
As to the merits, the trial court dismissed plaintiff’s UM and UIM counts against
MemberSelect after finding that plaintiff had not fulfilled MemberSelect’s policy requirement that
plaintiff make a written report to local law enforcement to make such a claim. Considering the
merits requires more details as to the facts of the case.
A. RELEVANT FACTUAL BACKGROUND
When plaintiff was struck by a hit-and-run driver on June 11, 2022, no one witnessed the
accident, but a bystander saw plaintiff laying injured on the ground and called 911. For unknown
reasons the Detroit Police Department did not respond. Instead, the Detroit Fire Department was
dispatched to the scene at around 11:00 p.m. to treat plaintiff, who “couldn’t or wouldn’t explain
what happened.” The DFD report also detailed that the bystander recognized plaintiff as “someone
2 Part of the problem applying Stanley is its use of the term “claims” and whether that necessarily
means the same as “counts,” when the two words do not mean the same thing but are sometimes
used interchangeably. Compare the definition of “Claim” and “Count” in Black’s Law Dictionary:
CLAIM, Black’s Law Dictionary (12th ed) (“1. A statement that something yet to be proved is
true. 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if
contingent or provisional. 3. A demand for money, property, or a legal remedy to which one
asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks
for.”); COUNT, Black’s Law Dictionary (12th ed) (“In a complaint or similar pleading, the
statement of a distinct claim.”).
The majority says that the stipulated dismissal order in Stanley “broadly dismiss[ed] the plaintiff’s
remaining claims against the defendant with prejudice.” (emphasis added). But Stanley involved
a one-count complaint for PIP benefits, and so the claims for certain medical expenses that were
the subject of the earlier partial summary disposition order were part of the same count that the
plaintiff subsequently agreed to dismiss without reserving appellate rights. Here, counts 2 and 3
were separate counts from those dismissed by the final stipulated order.
Another problem applying Stanley may be what words are enough to preserve appellate rights and
what words are not. That problem is not at issue here, however.

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who normally hangs out in the area.” The report went on to list the following injuries: “Pt has 2in
deep laceration on left forehead, and abrasions that look like road rash on left thigh. Abrasions on
left forearm. Pt complained of hurting all over. 10/10. No other specific complaints.”
Plaintiff was transferred by ambulance to the emergency department at Beaumont Hospital
in Dearborn, where he underwent surgery for a fractured pelvis. His medical records stated
“[b]ased on injuries sustained, it is most likely the patient was struck by a car.” After his discharge
from the hospital and rehabilitation facility, plaintiff did not have any additional known contact
with the police about the hit-and-run accident.
As mentioned by the majority, MemberSelect moved for partial summary disposition under
MCR 2.116(C)(8) and (C)(10) as to plaintiffs UM and UIM motorist counts (Counts 2 and 3),
arguing plaintiff was not entitled to UM or UIM coverage under MemberSelect’s policy because
plaintiff failed to make a “written report” of the hit-and-run accident to “local law enforcement”
within 24 hours or “as soon as it is reasonably possible.”
After holding oral argument on the motion, the trial court allowed the parties to file
supplemental briefs on whether plaintiff complied with the “written report” to “local law
enforcement” provision of the policy, and they did so. At another hearing, counsel for
MemberSelect conceded and the trial court agreed that the purpose of the provision was to prevent
insurance fraud. The trial court ultimately issued an order granting MemberSelect’s motion for
summary disposition for “reasons stated on the record,” and dismissed Counts 2 and 3 against
MemberSelect with prejudice. The reasons stated on the record were:
I understand arguments on both sides, I do. I understand why the defense
wants to make sure that the provisions outlined in the terms of the insurance
coverage are followed, but I also look at the intent of it. And the intent really is to
make certain that somebody isn’t trying to claim benefits under an . . . underinsured
motor vehicle coverage when there is no proof that an accident even occurred by a
hit and run driver.
* * *
Well the Court in this case will find that the Defendant does not satisfy that
burden under a (C)(8) standard because there is a question. The report that was
filed by EMS. It was not technically under the Detroit Police Department, but EMS
is an arm. That call was made from 911 and apparently, according to this report
before this Court, there is, you know, the 911 operator operates through the city of
Detroit. It’s dispatched through the city of Detroit. Okay. They’re law
enforcement. The concern that . . . the Defendant has is the notice provision so that
there’s not fraud, because that’s a valid concern.
With respect to (C)(10), a motion brought under MCR
2.116(C)(10) . . . And here’s what bothers or troubles this Court. . . . [A]nd I agree
with the Plaintiff. Plaintiff sustained serious injuries warranting a surgery. After
the surgery, he spent some time in the hospital. After the hospital stay, spent some

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time for the rehab. So obviously the Plaintiff could not comply with the 24-hour
period.
But that policy also indicates that when it’s . . . reasonable to do so.
Obviously, somebody who’s just suffered some injuries as a result of a motor
vehicle accident might be in a hospital setting, as is the case here. However, this
case has been going on for two years. There should have been a police report made.
It should have been filed and it wasn’t.
And while I appreciate the position the Plaintiff’s in, it’s not up to this Court
to do the job of the Plaintiff and it’s not also up to this Court to usurp the very plain
language of the [policy] and interpret it by finding that the EMS report satisfies that
requirement.
So there is no genuine issue of material fact for the trier of fact . . . to decide.
There wasn’t a police report filed, and I’m not persuaded by the Supplemental
Briefs that that changes anything.
So the Court’s gonna go ahead and grant the Partial Motion For Summary
Disposition.
A few months after the trial court dismissed Counts 2 and 3, plaintiff settled his first-party
counts for PIP benefits against MAIPF (Count 5). On May 5, 2025, upon stipulation of the parties,
the trial court dismissed “[p]laintiff’s claims against [d]efendants Memberselect [] and [MAIPF]”
with prejudice, presumably referring to Counts 4-5, the only remaining counts against those
defendants. This final order closed the case and plaintiff appealed, challenging the trial court’s
earlier decision to dismiss Counts 2 and 3 and arguing that the trial court erred in granting
MemberSelect’s motion for summary disposition under MCR 2.116(C)(10) when it held the 911
call and DFD report were insufficient to satisfy MemberSelect’s policy requirements. I agree and
would reverse and remand for further proceedings.
B. STANDARD OF REVIEW
Although MemberSelect moved for summary disposition under MCR 2.116(C)(8), the trial
court allowed the parties to file supplemental responses to MemberSelect’s motion, it considered
the exhibits attached to those briefs in making a decision, and it decided MemberSelect’s motion
under MCR 2.116(C)(10). See Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich
App 182, 206-207; 920 NW2d 148 (2018). A motion under MCR 2.116(C)(10) tests the factual
sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152; 934 NW2d 665
(2019). “In evaluating a motion for summary disposition brought under this subsection, a trial
court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). “Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law.” Id. “A
question of fact exists when reasonable minds could differ as to the conclusions to be drawn from
the evidence.” Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789 NW2d 211 (2010). This
Court reviews the grant or denial of summary disposition de novo. Id. at 118.

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C. ANALYSIS
“Insurance policies are interpreted in accordance with the principles of contract
interpretation.” Auto-Owners Ins Co v Martin, 284 Mich App 427, 433; 773 NW2d 29 (2009).
“[W]hether contract language is ambiguous is a question of law that we review de novo.” Klapp
v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). Similarly, “the proper
interpretation of a contract is also a question of law that we review de novo.” Id.
This Court’s “main goal in interpreting a contract is to honor the parties’ intent.” Davis v
LaFontaine Motors, Inc, 271 Mich App 68, 73; 719 NW2d (2006). “Courts must discern the
parties’ intent from the words used in the contract and must enforce an unambiguous contract
according to its plain terms.” Id. “A contract is to be construed in favor of the insured only when
an ambiguity exists.” Smejkal v Beck, 351 Mich App 274, 279; 35 NW3d 649. “If a relevant term
is undefined, this does not make the policy ambiguous, and the fact that dictionaries define words
differently will not create an ambiguity.” Id. Rather, “[a]n insurance contract is ambiguous when
its provisions are capable of conflicting interpretations.” Farm Bureau Mut Ins Co of Michigan v
Nikkel, 460 Mich 558, 566; 596 NW2d 915 (1999). Because UM and UIM coverage is not required
by the no-fault act, MCL 500.3105, “interpretation of the policy dictates under what circumstances
those benefits will be awarded.” Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 524-525;
502 NW2d 310 (1993).
I begin with the relevant language in MemberSelect’s policy that details what the insured
must do in case of an accident or loss:
2. A person claiming Personal Injury Protection under Part II or Uninsured
and Underinsured Motorists Bodily Injury Coverage under Part III must promptly:
* * *
e) under Part III – Uninsured and Underinsured Motorists Bodily Injury
Coverage:
1) make a written report of a hit-and-run accident within 24 hours to local
law enforcement;
2) allow us to inspect the car occupied by the insured person; and
3) file with us within 30 days written notice of the hit-and-run accident.
4) if it is shown that it is not reasonably possible to give such notice within
the prescribed time as described in 1) and 3) above, notice must be given as soon
as it is reasonably possible.
Plaintiff argues the term “local law enforcement” is undefined by the contract and is
therefore ambiguous, and that, even if this Court were to disagree, the supplied DFD report and
911 call at least demonstrate “substantial compliance” with the terms of the contract, citing the
substantial compliance doctrine. See Rodgers v JP Morgan Chase Bank NA, 315 Mich App 301,
310; 319 NW2d 381 (2016) (“if a good-faith attempt to perform does not precisely meet the terms

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of an agreement or statutory requirements, the performance will still be considered complete if the
essential purpose is accomplished.”). MemberSelect argues the contract is unambiguous and
therefore not open to judicial construction. And, because plaintiff undisputedly did not make a
written report to the police, and because “law enforcement agency,” as defined by statutes and
caselaw, does not include 911 operators or EMS personnel, MemberSelect argues the DFD report
and 911 call were insufficient to satisfy the policy’s requirements.
I agree with MemberSelect that the contract is unambiguous, but I would hold that
plaintiff’s statements to the DFD, which resulted in the written DFD report, are sufficient to meet
the policy requirements. The parties do not dispute that, because plaintiff was injured, it was not
plaintiff’s fault that the Detroit Police Department or some other police agency did not arrive at
the scene in response to the 911 call, nor do they dispute that because of his injuries plaintiff could
not have gone to a police station to make a written report within 24 hours of the hit-and-run
accident. And since plaintiff did not go to a police station later, there is no need to decide the
meaning of the alternative contract provision of giving notice “as soon as it is reasonably possible.”
As to the “make a written report” requirement, the policy does not specify whether the
claimant must be the one to write the report, whether it must be handwritten or typed, or whether
it must include a written statement from the claimant. These open questions do not mean the
language is ambiguous. Who “writes” the report does not matter—the common understanding of
“make a written report” is that the person must somehow communicate with someone, and that
communication results in a written report. MemberSelect generally agreed at oral argument.
Similarly, the “to local law enforcement” contract provision needs to be applied to
determine whether plaintiff complied with it. Here, what happened satisfied the policy
requirements. A bystander saw plaintiff injured on the ground and called 911 and the fire
department responded. Although, according to the report, plaintiff “couldn’t or wouldn’t explain
what happened,” he at least communicated to someone presumably in uniform, to the best of his
ability, that he “hurt all over.” Plaintiff’s communication at the scene resulted in a written report
by DFD of a hit-and-run accident. The report was generated the same day as the accident and
included a statement from a bystander.
In these circumstances and given the policy provision’s purpose is to prevent fraud, the
DFD report is a more credible confirmation that a hit-and-run accident happened than if plaintiff
had gone to the Detroit Police Department after being released from a medical facility a few days
or weeks later.
Neither party has cited a case that has decided this exact question. MemberSelect cites
Hall v Auto Club Ins Ass’n, unpublished per curiam opinion of the Court of Appeals, issued April
22, 2025 (Docket No. 369422), pp 1-2. Hall involved identical policy language, and this Court
reversed the trial court’s denial of the insurer’s motion for summary disposition where the plaintiff
failed to make a written report to law enforcement within 24 hours of a hit-and-run accident. In
Hall, the plaintiff allegedly called the police after the hit-and-run accident, but no one responded
to the scene and the plaintiff eventually left. Hall, unpub op at 1-2.
But unlike here where we have a report, the plaintiff in Hall, unpub op at 2, never reported
what happened to anyone leading to a written report. And, notably, MemberSelect does not argue

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that the information in the DFD report is insufficient to meet the purpose of the “make a written
report” provision, as was the case in Hall where no writing existed. Nor does MemberSelect
suggest the DFD report is fraudulent such that it is invalid. MemberSelect even acknowledged at
oral argument that had the report containing the same information come from the Detroit Police
Department, it potentially would satisfy MemberSelect’s policy.
MemberSelect argues the definitions of “law enforcement agency” and “law enforcement
officer” in Michigan statutes do not include a firefighter or fire department, so a fire department
cannot be considered “local law enforcement” under the contract.3 MemberSelect ignores,
however, that MCL 750.411a(4) of the Michigan Penal Code equally criminalizes making false
reports of medical emergencies to police departments, fire departments, and other first responders:
A person shall not intentionally make or intentionally cause to be made a false
report of a medical or other emergency to a peace officer, police agency of this state
or of a local unit of government, firefighter or fire department of this state or a local
unit of government of this state, 9-1-1 operator, medical first responder, or any
governmental employee or contractor or employee of a contractor who is authorized
to receive reports of medical or other emergencies.
The fact that our state punishes these false statements equally means that the DFD report satisfies
the text and purpose of the policy provision at issue.
I believe there is no genuine dispute that the DFD report met the requirement of a written
report to local law enforcement, and I would reverse the order granting MemberSelect’s motion
for partial summary disposition dismissing Counts 2 and 3 and remand for further proceedings on
those claims.
/s/ Andrew J. Lievense
3 See the Commission on Law Enforcement Standards Act, MCL 28.602. MemberSelect also
identifies People v Lucas, unpublished per curiam opinion of the Court of Appeals, issued
December 23, 2025 (Docket No. 372439), which states that statements made to EMS were
insufficient to fall within the scope of MCL 768.27c(1)(e) of statements made to “law enforcement
officer[s].” MCL 768.27c, however, concerns the circumstances where hearsay statements made
by a declarant may be admissible in domestic violence cases, and the statute’s use of “law
enforcement officer” is different from the contract’s use of “local law enforcement.”

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