COA 374369 VINING INDUSTRIAL PARK LLC V HOME OWNERS INSURANCE COMPANY Opinion - Per Curiam - Unpublished 6/12/2026

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
VINING INDUSTRIAL PARK, LLC, and VINING
INDUSTRIAL PARK-GA, LLC,
Plaintiffs-Appellants,
UNPUBLISHED
June 12, 2026
10:37 AM
v No. 374369
Kent Circuit Court
HOME OWNERS INSURANCE COMPANY, LC No. 22-011409-CB
Defendant-Appellee.
Before: CAMERON, P.J., and KOROBKIN and BAZZI, JJ.
PER CURIAM.
Plaintiffs, Vining Industrial Park, LLC, and Vining Industrial Park-GA, LLC, appeal as of
right the trial court’s order granting summary disposition in favor of defendant, Home Owners
Insurance Company,1 under MCR 2.116(C)(10) (no genuine issue of material fact).2 We affirm.
1 According to plaintiffs, “The company underwriting the loss was the Defendant in this case,
Home-Owners Insurance Company, which is an affiliate of Auto-Owners. In the prior litigation,
all of the witnesses referred to Auto-Owners in their deposition testimony, and both parties as well
as the Court referred to Auto-Owners in connection with the Motion for Summary Disposition.”
While we will address Home Owners as “defendant” to avoid further confusion, we provide clarity
regarding previous naming conventions.
2 In this case, Auto-Owners moved for summary disposition pursuant to MCR 2.116(C)(7)
(immunity granted by law), (C)(8) (failure to state a claim upon which relief can be granted), and
(C)(10), and the trial court did not specifically state which subrule(s) supported its decision.
However, we discern from the record that Subrule (C)(10) was the appropriate ground because the
court considered evidence beyond the pleadings. Corbin by Next Friend Corbin v Meemic Ins Co,
340 Mich App 140, 144; 985 NW2d 217 (2022); see also Krass v Tri-Co Security, Inc, 233 Mich
App 661, 664-665; 593 NW2d 578 (1999) (providing that when the trial court does not specify
“which section of MCR 2.116 the trial court based its ruling, and both the defendant and the trial

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I. BASIC FACTS AND PROCEDURAL HISTORY
The pertinent facts were previously summarized in part by this Court in Vining Industrial
Park LLC v JL Schwartz Insurance Agency Inc, unpublished per curiam opinion of the Court of
Appeals, issued May 25, 2023 (Docket No. 361818), pp 1-3:
Plaintiff Vining Industrial Park, LLC (“Vining”) is a limited-liability
company owned by Tom Owen. Vining’s assets principally included a 300,000
square foot warehouse building (the “Vining Building”) located in Greenville,
Michigan. In 2009, Owen sold 50% of his interest in the Vining Building to
plaintiff Vining Industrial Park-GA, LLC, a limited-liability company owned by
Anthony Frank. Defendant J.L. Schwartz Insurance Agency, Inc. (“JLS”) is an
insurance agency that, at the time of the relevant events, was owned by defendant
Jerrold Lee Schwartz. JLS acted as Vining’s insurance agent ever since Vining’s
inception.
The Vining Building was always insured under policies that set the limits at
the “actual cash value” of the Building, as opposed to a “replacement cost” policy.
At the time of the fire that destroyed the Vining Building, the insurance policy
stated, in relevant part:
We will determine the value of Covered Property in the event of loss or
damage as follows:
A. At Actual Cash Value as of the time of loss or damage . . . .
Owen admitted that when he received policy renewals from Auto-Owners
Insurance Company—the company that issued the policy at issue—he would read
them. Owen also acknowledged that he knew the policy for the Vining Building
was an “actual cash value” policy, which he described as “replacement cost minus
depreciation . . . .” Although Owen could not pinpoint any specific conversation,
he claimed that he was “assured” by Schwartz “15 times” that, regardless of the
language in the policy, the coverage would be sufficient to replace 250,000 square
feet of the Vining Building should it be declared a loss.
It was Owen’s understanding that whatever assurances were made by
Schwartz, the source of the information—i.e., the adequacy of the policy limit to
rebuild 250,000 square feet—was Auto-Owners. For his part, Schwartz denied any
such conversations took place regarding the adequacy of the coverage before the
fire destroyed the Vining Building. Schwartz also stated that neither he nor his
agency would have been capable of independently calculating the replacement cost
court relied on documentary evidence beyond the pleadings in support of the defendant’s motion
for summary disposition, this Court must construe the defendant’s motion as being granted
pursuant to MCR 2.116(C)(10)”).

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of the Vining Building and, thus, would have been unable to provide such
assurances.
Although Owen insisted the parties discussed rebuilding 250,000 square
feet of the Vining Building should a loss occur, Owen also admitted he never took
any independent steps to determine what it would cost to rebuild such a building.
According to Owen, “Auto-Owners supplied that information on all of our real
estate . . . so I would assume that, you know, their information would be more
accurate than what I could provide.” Owen claimed it would have been a
“monumental task” to determine the replacement cost of 250,000 square feet
because he was “not a contractor” and “wouldn’t know what they could reuse.”
Rather, Owen simply stated that he requested that there be sufficient insurance
proceeds for “a modern style . . . pre-engineered steel building that we could rebuild
250,000 square feet which we could house the tenant,” a company called “LKQ.”
On December 7, 2019, a fire occurred at the Vining Building that destroyed
the majority of the structure. According to Owen, to rebuild the Vining Building
to accommodate LKQ would have cost plaintiffs $55 per square foot, totaling
approximately $13,860,000; however, the payment from Auto-Owners created a
shortfall of more than $7,000,000. LKQ refused to agree to an increase in rent to
cover the shortfall, and plaintiffs decided not to rebuild the Vining Building.
In 2020, plaintiffs filed a complaint against [JLS and Schwartz] in the trial
court asserting two claims each of breach of contract and negligence (each pair of
counts was asserted against each defendant separately). In the complaint, plaintiffs
alleged and admitted that at the time Auto-Owners issued the initial policy in 2005,
“Plaintiffs knew the Property was not insured for its full replacement cost value.”
Plaintiffs therefore “were not likely to rebuild the Property in the same way it had
been constructed because the Property was old, the type of frame and construction
was cost prohibitive, and its dimensions were not based on the current needs of
Plaintiffs’ tenant.”
[JLS and Schwartz] moved for summary disposition under MCR
2.116(C)(10), arguing that plaintiffs failed to establish any “special relationship”
between the parties and, as a result, [JLS and Schwartz] had no duty to advise
plaintiffs regarding the adequacy of their coverage. [JLS and Schwartz] highlighted
the fact that Owen knew the policy limits and that the policy was for actual cash
value, as well as the fact that to the extent representations were made concerning
the ability to rebuild 250,000 square feet, those representations came from Auto-
Owners. As a result, any claim that [JLS and Schwartz] failed to follow standard
customs for insurance agents was meritless because [JLS and Schwartz] had no
ability to independently determine if the coverage limits were sufficient. [JLS and
Schwartz] also argued that plaintiffs failed to demonstrate any misrepresentation
because plaintiffs had the information available to them to determine the truth of
the representations.

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The trial court agreed with [JLS and Schwartz’s] arguments and granted the
motion. This appeal followed.
This Court affirmed, first declining plaintiffs’ arguments regarding the significance of the
conflicting testimony of how the policy limits were set. Id. at 3-4. The Court noted that “according
to Owen’s testimony, he asked Schwartz to obtain the requested policy, which Schwartz did, only
Auto-Owners failed to determine the actual cash value of the Vining Building when it set the limits,
even though it assured the parties that such limits would be sufficient for plaintiffs’ desired
rebuild.” Id. at 4. This Court resolved, “The trial court accepted these facts as true, as it was
required to do under MCR 2.116(C)(10), and nevertheless granted [JLS and Schwartz’s] motion
in light of those facts. This was not error by the trial court.” Id.
The Vining Court further disagreed that there was a genuine factual dispute regarding
whether JLS and Schwartz breached their duty as insurance agents to procure the requested
insurance policy. Id. at 4-5. This Court provided, “According to Owen’s testimony, he asked for
and received an actual cash value policy of insurance, which both he and Schwartz believed, on
the basis of representations from Auto-Owners, would be sufficient to rebuild 250,000 square
feet,” and, “Owen stated that each year, he received and read the policy renewals issued by Auto-
Owners.” Id. at 5. In light of the foregoing, the Court determined that there was no breach of JLS
and Schwartz’s duty to procure because, viewing the evidence in the light most favorable to
plaintiffs, “[JLS and Schwartz] did procure the policy but were misled by Auto-Owners regarding
the sufficiency of the coverage.” Id.
This Court further ruled that plaintiffs failed to present sufficient evidence to establish a
“special relationship” between plaintiffs and JLS and Schwartz, such that the latter two had a “duty
to advise” plaintiffs “regarding the adequacy of the coverage obtained.” Id. The Vining Court
reiterated that an insurance agent whose principal is the insurance company did not maintain a
general duty to advise those seeking insurance coverage, but it recognized that such a duty may be
imposed under certain circumstances. Id. Despite the 30-year business relationship between Owen
and Schwartz, this Court opined that “the length of the relationship between the agent and the
insured is [not a] dispositive factor in transforming the relationship into one in which the traditional
common-law ‘no duty’ principle is abrogated.” Id., quoting Harts v Farmers Ins Exchange, 461
Mich 1, 10; 597 NW2d 47 (1999). The Court additionally determined:
The simple fact, undisputed by plaintiffs, is that each year Owen received
the policy renewals from Auto-Owners. Upon receipt, Owen stated that he read
them. Owen also admitted, both in plaintiffs’ complaint and his own deposition,
that he knew each renewal was a policy for the actual cash value of the Vining
Building, which he described as “replacement cost minus depreciation.” Nowhere
in the policy documents was there any representation that the actual cash value
would be sufficient to rebuild to plaintiffs’ desired specifications. Because
plaintiffs failed to establish that a special relationship arose between the parties, the
trial court did not err when it granted summary disposition in favor of [JLS and
Schwartz]. [Id. at 6.]
Before the issuance of the cited opinion, plaintiffs filed a complaint advancing, in part,
negligence and contract reformation claims against defendant, and contending that JLS and

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Schwartz acted “as dual agents for Plaintiffs and for Defendant Home Owners, and, at all relevant
times, were authorized by statute and by contract as the agents of Defendant Home Owners to
place policies of insurance for property in the State of Michigan with Defendant Home Owners.”
Regarding negligence, plaintiffs asserted, “Having undertaken the inspection of the Property and
the setting of policy’s limits, [defendant] owed Plaintiffs a duty of reasonable, ordinary, and
prudent care in valuing the Property and in setting the limits of liability,” which defendant
breached. Concerning reformation, plaintiffs disclaimed, “All the parties intended to insure
Plaintiffs’ building and business income with sufficient limits of liability to protect Plaintiffs
against the risk of loss,” and the subject insurance policy should be reformed to remedy this mutual
mistake of fact. Plaintiffs attached various commercial building valuation reports, in addition to
the parties’ insurance policy, to their complaint.
Defendant subsequently moved for summary disposition under MCR 2.116(C)(7)
(immunity granted by law), (C)(8) (failure to state a claim upon which relief can be granted), and
(C)(10), contending: (1) defendant did not owe plaintiffs a duty to procure adequate insurance
coverage to ensure the cost of rebuilding as the insurer, and plaintiffs concede that JLS and
Schwartz were their agents as opposed to defendant’s agents; (2) “The defendant, in this brief, has
set forth an extensive factual record to show that the terms and conditions of the policy covering
the property in this case were clear in its terms,” such that there was no mutual mistake regarding
the subject policy’s content to warrant reformation. Defendant attached, in part, plaintiffs’
insurance policy to its motion, in addition to Owen’s deposition testimony and the motion hearing
transcript from the previous lower court litigation involving JLS and Schwartz.
Plaintiffs responded that because JLS and Schwartz acted as dual agents toward plaintiffs
and defendant, Schwartz’s knowledge of plaintiffs’ insurance needs was imputed to defendant,
such that “defendant breached its duties to procure insurance consistent with the Plaintiffs’
requests.” Plaintiffs further asserted that contract reformation was warranted because Owens and
Schwartz intended to institute a policy with sufficient limits for a rebuild, indicating a mutual
mistake of fact regarding the inadequate policy. Defendant replied that the only duties owed to
plaintiffs were delineated under the insurance policy, and there was “no question that the policy in
force between the parties on the day of the loss did not contain any obligation on the part of the
defendant to ensure that the insurance proceeds would cover the cost to rebuild a 250,000 square-
foot pre-engineered building.”
Following a hearing, the trial court granted defendant’s motion for summary disposition.
The court provided, “There is no dispute in this case that Mr. Schwartz is an independent insurance
agency and that he could write policies with other companies besides just [defendant].” The court
likened the present matter to Al-Hajjaj v Hartford Accident and Indemnity Co, 345 Mich App 361,
376; 5 NW3d 353 (2023), and Genesee Foods Servs, Inc v Meadowbrook, Inc, 279 Mich App 649,
654; 760 NW2d 259 (2008), opining, “And if I follow [these cases], I have to dismiss this case
under summary disposition because . . . Schwartz at the time he was submitting this application
was in fact an agent for the insured and not an agent for the insurer, even though he has a dual
agency for other purposes.” The trial court entered an order consistent with its statements on the
record.
Plaintiffs then moved for reconsideration contending that based on the trial court’s
determination that Schwartz was acting beyond the scope of his agency relationship with

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defendant, the court committed “palpable error in concluding that the knowledge Jerry Schwartz
gained from his conversations with Tom Owen, that Plaintiffs wanted sufficient insurance to
rebuild the property with an approximately 250,000 square feet pre-engineered steel building, was
not imputed to Defendant.” Plaintiffs further argued that the fiduciary relationship between
defendant and Schwartz was broader than those at issue in Al-Hajjaj and Genesee Foods regarding
“premiums, supplies, materials, underwriting rules or standards, and rating information.”
The trial court denied plaintiffs’ motion for reconsideration. In its opinion and order, the
court explained:
The court’s basic holding was this: In keeping with two published decisions
of the Court of Appeals, Al-Hajjaj . . . and Genesee Foods Servs . . . , the court held
that, as an independent insurance agent, Jerry Schwartz’s primary fiduciary duty
was to Vining. Although the agency agreement created a contractual relationship
between Schwartz and [defendant], giving Schwartz the authority to solicit, sell,
accept and bind [defendant] to contracts of insurance that [defendant] was licensed
to sell, Schwartz was acting as Vining’s agent when he assured Tom Owens that
the policy limits were sufficient to rebuild the factory.
The trial court further stated that under Al-Hajjaj and Genesee Foods, “the primary fiduciary duty
of loyalty” of independent insurance agents rests with the insured, such that an independent
insurance agent or broker is generally considered an agent of the insured as opposed to an agent
of the insurer. The court additionally noted that while plaintiffs argued that the agency agreement
between defendant and JLS was distinct from the ones at issue in Al-Hajjaj and Genesee Foods,
there was “nothing inconsistent with the agency agreement in Al-Hajjaj and Genesee Foods and
the agency agreement at issue here.” The trial court opined, “Neither side in this case has
suggested that the Schwartz agency agreement is anything but a standard contract between an
insurance company and an independent-insurance agent,” and, “Like the contract in both Court of
Appeals cases, the contract here authorizes [JLS] to solicit, quote and bind insurance of on behalf
of [defendant].”
The court further disagreed with plaintiffs’ contention that the subject agency agreement
contained provisions expanding the authority of JLS and Schwartz simply because it obliged the
two to adhere to defendant’s rules, regulations, and underwriting standards, and to complete certain
documents. The court advanced, “It seems unlikely that an insurance company could operate
profitably if it permitted its agents to submit incomplete or improperly filled out forms when the
agent is binding coverage,” and the contested clauses requiring JLS to comply with defendant’s
protocol represented limitations on Schwartz’s authority. The trial court concluded:
The simple fact is this: Schwartz had the power to sell [defendant’s] policies
and temporarily bind coverage. The agency agreement did not authorize Schwartz,
on behalf of [defendant], to inspect the property, assess the risk, approve or deny
coverage, set appropriate premium rates, or determine specific terms and conditions
of the policy. It did not authorize Schwartz to set policy limits. To the extent that
Schwartz repeatedly assured Tom Owens that the policy limits were sufficient to
rebuild the factory despite the definition of Actual Cash Value, he was doing
nothing more than promising his customer that the insurance contract he was

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procuring properly addressed his customer’s needs. In so doing, he was acting as
Vining’s agent.
Following the issuance of the cited opinion and order, this appeal ensued.
II. ANALYSIS
Plaintiffs argue that they advanced a viable claim for negligence against defendant because
the improper conduct of Schwartz may be imputed to defendant, as Schwartz acted as a “dual
agent” of plaintiffs and defendant. Because the trial court properly determined that Al-Hajjaj and
Genesee Foods govern the present matter, we disagree.
An insurance policy constitutes a contractual agreement between the insurer and the
insured. Zurich American Ins Co v Amerisure Ins Co, 215 Mich App 526, 530; 547 NW2d 52
(1996). Michigan law has long presumed that the party signing a written contract recognizes the
nature of the instrument and understands its contents. McKinstry v Valley Ob-Gyn Clinic, PC, 428
Mich 167, 184; 405 NW2d 88 (1987). “When an insurance policy ‘is facilitated by an independent
insurance agent or broker, the independent insurance agent or broker is considered an agent of the
insured rather than an agent of the insurer.’ ” Genesee Foods Servs, 279 Mich App at 654, quoting
West American Ins Co v Meridian Mut Ins Co, 230 Mich App 305, 310; 583 NW2d 548 (1998).
However, an independent insurance agent may simultaneously serve as an agent for the insurer,
such that “an insurer may be bound by the acts of a duly-authorized agent acting within the scope
of his or her authority.” Opera Block Props, Inc v Auto-Owners Ins Co, ___ Mich App ___, ___;
___ NW3d ___ (Docket No. 365213); slip op at 6. “When an independent agent has been given
binding authority, the agent has a limited fiduciary relationship with the insurer.” Id. at ___; slip
op at 6. “Nevertheless, the independent agent’s primary fiduciary duty rests with the insured.” Id.
at ___; slip op at 6. “This primary duty does not negate the contractual duty the independent agent
owes the insurer, nor does it negate or override the duty it owes to the insured.” Id. at ___; slip op
at 6.
In Al-Hajjaj, 345 Mich App at 368-376, this Court addressed whether an independent
insurance agency acted as the agent of the insured or as the agent of the insurer when procuring a
commercial automobile insurance policy. The Al-Hajjaj plaintiff sought insurance coverage for
his company’s vehicle through an independent insurance agency, whose agent recommended that
the plaintiff purchase a policy for his company through the defendant insurer. Id. at 364-365.
Based on the subsequent application the insurer received from the independent insurance agency,
which contained numerous errors, the insurer issued an insurance policy to the plaintiff’s company.
Id. at 365. The plaintiff was subsequently injured in a vehicle collision, but when he sought
personal protection insurance benefits from the insurer, the insurer “rescinded the policy based on
what it characterized as material misrepresentations in the application,” resulting in the plaintiff
pursuing legal action against the insurer, the independent insurance agency, and others. Id. The
insurer moved for summary disposition “arguing that the errors in the application were material
because the insurer would not have issued the policy if it had known about them,” and that any
application errors committed by the independent insurance agency must be imputed to the plaintiff
as the principal. Id. The trial court disagreed and denied the insurer’s motion for summary
disposition, “concluding that the contractual relationship between [the insurer] and [the

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independent insurance agency] meant that the latter was the agent of the former . . . .” Id. at 356-
357.
On appeal, this Court reversed, opining that the insurer and the independent insurance
agency entered into an agency agreement, which covered the agent as a principal of the
independent insurance agency. Id. at 375-377. This Court reasoned, “By all accounts, this was a
standard contract between an insurance company and an independent-insurance agent,” because it
permitted the independent insurance agency to “solicit, quote, and bind insurance” on the insurer’s
behalf, but the contract also materially limited the independent insurance agency’s authority. Id.
at 375. The Al-Hajjaj Court, citing Genesee Foods, advanced that the contested contract did not
modify the common-law principle that the independent insurance agent is considered an agent of
the insured rather than the insurer. Id. at 375-376. Thus, the independent insurance agency owed
its primary fiduciary duty of loyalty to the plaintiff as its customer, rather than to the defendant
insurer as one of the ten insurers for which it placed policies. Id. at 376. The Court further ruled
that while the independent insurance agency had a contractual duty to the insurer, “this did not
override or undermine the primary common-law duty that [the independent insurance agency]
owed to the insured”; thus, the independent insurance agency was not acting as the insurer’s agent
with respect to the insurance application that the agency submitted on behalf of the plaintiff’s
company. Id.
The Al-Hajjaj Court concluded, “Independent-insurance agents continue to owe their
primary fiduciary duty of loyalty to their customers, i.e., the insureds, rather than the insurance
companies whose policies they place,” such that the trial court erred when it concluded that the
contract between the insurer and the independent insurance agency altered this principle. Id.
at 377. The cited conclusion is consistent with this Court’s decision in Genesee Foods, 379 Mich
App at 653-657, in which it determined that the subject agency agreement permitting the
independent insurance agency to sell, accept, and bind the insurer to insurance contracts created a
limited fiduciary relationship between the two, such that the independent insurance agency’s
“primary fiduciary duty of loyalty rested with [the] plaintiffs, who could depend on this duty of
loyalty to ensure that [the independent insurance agency and its agents] were acting in their best
interests,” including “finding an insurer that could provide them with the most comprehensive
coverage and in ensuring that the insurance contract properly addressed their needs.”
Pursuant to these precedents, JLS and Schwartz’s primary fiduciary duty of loyalty was to
plaintiffs as the insureds, and plaintiffs failed to establish that the agency agreement between
defendant and JLS was materially distinct so as to invest JLS or Schwartz with the authority to set
policy limits or permit the imputation of any alleged misconduct to defendant. See Al-Hajjaj, 345
Mich App at 375-377; see also Genesee Foods, 279 Mich App at 656-657. The pertinent agency
agreement granted JLS and its agents the authority to solicit and secure applications and to bind
coverage for insurance contracts. The agreement did not expressly empower the independent
insurance agency or its agents to perform risk assessments, property inspections, calculations of
the relevant premium rates, or a determination of the specific terms and conditions of the policy.
The present case is further distinguishable from Opera Block, ___ Mich App at ___; slip
op at 5-9, such that JLS and Schwartz were not acting as dual agents in setting the contested
insurance policy limits. In Opera Block, id. at ___; slip op at 5-9, this Court addressed, in part,
when an independent insurance agency may be considered a “dual agent” toward the insured and

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the insurer, such that the agency’s conduct may bind the insurer. The Opera Block plaintiff owned
multiple commercial buildings and obtained property insurance through an independent insurance
agency, which placed coverage with the defendant insurer. Id. at ___; slip op at 2. On February 5,
2019, the plaintiff’s owner subsequently contacted one of the independent insurance agency’s
agents, requesting the “best possible coverage for the buildings,” resulting in the agent altering the
existing policy to include the insurer’s “premier, property-plus endorsement.” Id. at ___; slip op
at 2. The independent insurance agent “formally made the requested changes at 10:11 a.m., on
February 6, 2019,” but she “backdated the changes to 12:01 a.m., February 5, 2019, because that
was the day that [plaintiff’s owner] requested the changes.” Id. at ___; slip op at 2. Water backups
occurred shortly after these changes, causing substantial damage to plaintiff’s property; the insurer
denied plaintiff’s claims related to the water-backup damage on the basis that the policy changes
were effective after the loss. Id. at ___; slip op at 2. The plaintiff sued the insurer for breach of
contract and sued the independent insurance agency for negligently handling the insurance
requests. Id. at ___; slip op at 2. The parties filed competing motions for summary disposition,
with the trial court ultimately finding: (1) there was no genuine factual dispute that the independent
insurance agent bound the insurer to the changes in coverage on February 5, 2019, such that the
insurer “breached its duty to cover the loss to the policy’s limit of $50,000 per location as a matter
of law”; and (2) the plaintiffs failed to establish a question of fact regarding whether the
independent insurance agency negligently caused the plaintiff to have insufficient coverage for the
loss at issue. Id. at ___; slip op at 2-3.
This Court affirmed, opining that the independent insurance agent had the authority as the
insurer’s duly-authorized agent to bind the insurer to an insurance agreement without first getting
its approval, such that the insurer was constrained by her conduct. Id. at ___; slip op at 5-6. The
Opera Block Court recognized that “the independent agent’s primary fiduciary duty rests with the
insured,” but it advanced that this “primary duty does not negate the contractual duty the
independent agent owes the insurer, nor does it negate or override the duty it owes to the insured.”
Id. at ___; slip op at 6. The Opera Block Court reasoned, “If an agent has the authority to bind an
insurer, then it has the authority to effect an insurance binder—a temporary insurance contract that
lasts until the insurer issues a formal policy or declines the risk.” Id. at ___; slip op at 6. This
Court explained:
Although Kiebler Insurance was an independent insurance agent that sold
insurance policies for various insurers, it is undisputed that [the insurer] entered
into an agency agreement with [the independent insurance agency]. The agreement
gave [the independent insurance agency] the “authority to receive applications for
contracts of insurance written by [the insurer] and to bind coverage[,]” subject only
to certain limitations not relevant here. [The independent insurance agent] testified
she had the authority to bind [the insurer], and [the insurer]’s own commercial
underwriter, Geoffrey Mack, also agreed that [the agent] had binding authority.
Mack stated that binding authority gave the agent the ability to “place coverage
with [the insurer] prior to [the insurer] reviewing it.” Accordingly, it was
undisputed that . . . [the] independent insurance agent, []—acting on behalf of the
[independent insurance agency]—was [the insurer’s] agent for procuring insurance,
but was also an [insurer] limited agent by virtue of her authority to bind it to an
insurance agreement without first obtaining its permission. The dispositive

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questions were thus whether [the independent insurance agent] exercised her
authority to bind [the insurer], and, if so, when she did. [Id. at ___; slip op at 7.]
This Court determined that the evidence cited by the parties indicated that the plaintiff’s owner
and the independent insurance agent reached an agreement on the coverage change for the
plaintiff’s properties on February 5, 2019, and that the agent committed the insurer to the change
by her words and actions. Id. at ___; slip op at 8-9.
The Opera Block Court, however, ruled that the plaintiffs failed to raise a proper
professional negligence claim against the independent insurance agency, because while “[a]n
independent insurance agent owes its client a duty of good faith and loyalty,” an independent
insurance agency “does not have a duty to advise the client about the adequacy of a policy’s
coverage.” Id. at ___; slip op at 10. This Court, applying Harts v Farmers Ins Exch, 461 Mich 1,
8; 597 NW2d 47 (1999), concluded that the plaintiff failed to demonstrate that the independent
insurance agency “breached a duty to advise arising from its special relationship” with the plaintiff,
as the plaintiff neglected to present evidence that the independent insurance agency could have
provided the insurance requested by the plaintiff, nor that any other insurer would have done so.
Id. at ___; slip op at 13-14.
Unlike Opera Block, which concerned whether an independent insurance agency had the
authority to bind the defendant insurer to a policy, the instant case concerns the actual policy limits
set forth in the insurance policy itself. Although agreements between insurers and independent
insurance agencies commonly authorize such agencies to bind insurers to policies, they generally
do not permit those agencies to determine the terms and conditions of the policy, including
applicable policy limits. See Al-Hajjaj, 345 Mich App at 375-377. Thus, such binding authority
does not, without more, render the insurance agency an agent of the insurer for purposes of
establishing or altering policy limits.
Further, even assuming that JLS and Schwartz acted as dual agents, such that their conduct
could be imputed to defendant, plaintiffs still cannot recover on their negligence claim. In the
prior Vining opinion, unpub op at 5-6, this Court held that the conduct of JLS and Schwartz—
specifically, their purported assurances regarding the adequacy of coverage—was irrelevant in
light of the absence of any policy language guaranteeing that the actual cash value would be
sufficient to rebuild according to plaintiffs’ specifications. The Court additionally ruled that the
general no-duty-to-advise rule remained applicable because plaintiff did not establish the existence
of a special relationship between the parties. Id. Thus, like in Opera Block, defendant cannot be
held liable for JLS and Schwartz’s alleged failure to advise plaintiff regarding coverage limits,
even if their conduct was deemed imputable to defendant. Opera Block, ___ Mich App at ___;
slip op at 13-14.3
3 Because the remainder of plaintiffs’ arguments depend on the existence of a dual-agency
relationship between JLS and Schwartz and defendant, we decline to address those arguments on
appeal.

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Affirmed.
/s/ Thomas C. Cameron
/s/ Daniel S. Korobkin
/s/ Mariam S. Bazzi

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