COA 372802 MEMBERSELECT INSURANCE COMPANY V ESTATE OF CONNOR JAMES CLANCY Opinion - Per Curiam - Unpublished 4/23/2026

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
MEMBERSELECT INSURANCE COMPANY,
Plaintiff-Appellee/Cross-Appellant,
UNPUBLISHED
April 23, 2026
11:06 AM
v No. 372802
Wayne Circuit Court
MICHAEL JAMES CLANCY, Personal
Representative of the ESTATE OF CONNOR
JAMES CLANCY,
LC No. 22-007261-CK
Defendant-Appellant/Cross-Appellee,
and
ANTHONY DWAYNE MAGEE and DEBBIE
MAGEE,
Defendants.
Before: CAMERON, P.J., and BORRELLO and SWARTZLE, JJ.
PER CURIAM.
Defendant,1 appeals as of right the trial court’s order granting plaintiff’s motion for
summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) and denying
Debbie’s motion under the same rule.2 We reverse and remand for further proceedings.
1 Michael James Clancy, as personal representative of the Estate of Connor James Clancy, is the
only defendant that is a party to this appeal. As such, he will be referred to as “defendant” while
the other defendants, Anthony Dwayne Magee and Debbie Magee, will be referred to by name.
2 Plaintiff chose not to pursue its cross-appeal after filing.

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I. FACTUAL AND PROCEDURAL BACKGROUND
This case arose after Anthony, driving his truck while under the influence and with a
suspended license, collided with Connor James Clancy (decedent), killing him. Prior to the
collision, Anthony moved into Debbie’s home and requested that she add his truck to her insurance
policy with plaintiff. Debbie called plaintiff and informed it that she was the truck’s primary
driver. She did not inform plaintiff that the truck was owned by Anthony or that Anthony was
living in her home. Plaintiff added the truck to Debbie’s policy.
Defendant filed suit against Anthony for the wrongful death of decedent. Anthony and
Debbie requested that plaintiff indemnify them, which prompted plaintiff to investigate Debbie’s
claim. Plaintiff rescinded the policy on the basis of Debbie’s misrepresentations regarding
Anthony’s residence, ownership, and use of the truck. It then filed suit seeking a declaratory
judgment that rescission was appropriate. Relevant here, plaintiff moved for summary disposition
claiming there was no dispute that Debbie made material misrepresentations in adding the truck to
her policy entitling plaintiff to rescission. The trial court granted the motion, finding that three of
the five factors postured by Justice Markman in Farm Bureau Gen Ins Co of Mich v ACE American
Ins Co, 503 Mich 903, 906; 919 NW2d 394 (2018) (MARKMAN, J., concurring), favored rescission.
Defendant now appeals.
II. STANDARDS OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “A motion under MCR
2.116(C)(10) . . . tests the factual sufficiency of a claim.” Id. at 160 (emphasis omitted). “When
considering such a motion, a trial court must consider all evidence submitted by the parties in the
light most favorable to the party opposing the motion.” Id. “A motion under MCR 2.116(C)(10)
may only be granted when there is no genuine issue of material fact.” Id. “A genuine issue of
material fact exists when the record leaves open an issue upon which reasonable minds might
differ.” Id. (quotation marks and citation omitted).
“The remedy of rescission is granted only in the sound discretion of the court.” Pioneer
State Mut Ins Co v Wright, 331 Mich App 396, 405; 952 NW2d 586 (2020) (quotation marks and
citation omitted). “An abuse of discretion occurs when the decision falls outside the range of
reasonable and principled outcomes.” Id. “An abuse of discretion necessarily occurs when the
trial court makes an error of law.” Id. “The trial court’s factual findings are reviewed for clear
error, and a finding is clearly erroneous if the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Id.
III. ANALYSIS
Defendant argues the trial court erred when it granted summary disposition in favor of
plaintiff. We agree.
“[A]utomobile insurance contracts are governed by a combination of statutory provisions
and the common law of contracts.” Bazzi v Sentinel Ins Co, 502 Mich 390, 399; 919 NW2d 20
(2018). “Insurance policies are contracts subject to the same contract construction principles that
apply to any other species of contract.” Id. (quotation marks and citation omitted). “[U]nless

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clearly prohibited by statute, an insurer may continue to avail itself of any common-law defenses,
such as fraud in the procurement of the policy.” Id. at 400. “Rescission abrogates a contract and
restores the parties to the relative positions that they would have occupied if the contract had never
been made.” Id. at 409. “Because a claim to rescind a transaction is equitable in nature, it is not
strictly a matter of right but is granted only in the sound discretion of the court.” Id. (quotation
marks and citation omitted).
The parties do not dispute that Debbie’s misrepresentations constituted fraud. Instead, they
dispute whether, despite this fraud, rescission was justified. “[R]escission should not be granted
in cases where the result thus obtained would be unjust or inequitable[.]” Id. at 410 (quotation
marks and citation omitted). “Moreover, when two equally innocent parties are affected, the court
is required, in the exercise of its equitable powers, to determine which blameless party should
assume the loss. . . .” Id. at 410-411 (quotation marks, brackets, and citation omitted). In this
respect, “the trial court must balance the equities to determine whether the plaintiff is entitled to
the relief he or she seeks.” Id. at 410 (quotation marks and citation omitted).
In Pioneer State Mut Ins Co, 331 Mich App at 411, this Court adopted the five nonexclusive
factors identified by Justice Markman in Farm Bureau:
(1) the extent to which the insurer could have uncovered the subject matter of the
fraud before the innocent third party was injured; (2) the relationship between the
fraudulent insured and the innocent third party to determine if the third party had
some knowledge of the fraud; (3) the nature of the innocent third party’s conduct,
whether reckless or negligent, in the injury-causing event; (4) the availability of an
alternate avenue for recovery if the insurance policy is not enforced; and (5) a
determination of whether policy enforcement only serves to relieve the fraudulent
insured of what would otherwise be the fraudulent insured’s personal liability to
the innocent third party.
The trial court addressed all five factors, finding that the first, fourth, and fifth factors weighed in
favor of rescission, while the second and third factor weighed against it. The dispute in this case
concerns the trial court’s assessment of the first and fourth factors.3
The first factor concerns whether the insurer could have uncovered the fraud before the
innocent third party’s injury. Id. Defendant argues that plaintiff failed to exercise adequate due
diligence when Debbie added the truck to her policy because plaintiff never asked Debbie whether
she owned the truck. Even if, as plaintiff argues, this question would not have necessarily
compelled Debbie to tell the truth, plaintiff’s failure to ask constitutes a lack of due diligence.
Moreover, the trial court correctly noted that the truck’s owner was easy to uncover through a
simple title search. While the title search would not have provided insight into Anthony’s living
arrangements, the search would have at least put plaintiff on notice that Debbie failed to disclose
the truck’s true owner, which would warrant rescission before the accident in this case occurred.
3 As will be discussed, the trial court clearly erred in finding that the first factor weighed in favor
of rescission. Because this factor changes the balance of the five factors in defendant’s favor, we
need not address the trial court’s findings for the fourth factor.

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This factor therefore weighs against rescission, because this evidence could have been uncovered
through minimal due diligence. Id. The purpose of the trial court’s equity-balancing test is to
determine which “blameless party should assume the loss” when “two equally innocent parties are
affected[.]” Bazzi, 502 Mich at 410-411 (quotation marks and citation omitted). In this respect,
“[w]here one of two innocent parties must suffer by the wrongful act . . . of another, that one must
suffer the loss through whose act or neglect such third party was enabled to commit the wrong.”
Id. at 411 (quotation marks and citation omitted). Plaintiff’s failure to exercise due diligence
resulted in Debbie being able to “commit the wrong.” Id. (quotation marks and citation omitted).
As such, it is the blameless party that must bear the loss. Id. Accordingly, the trial court’s finding
that it was nonetheless insufficient to uncover Debbie’s misrepresentations constitutes clear error.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ Brock A. Swartzle

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