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Consumers are 0 for 2 in uninsured/underinsured motorist claims this week: policy language from amended policy is enforced based on "mailbox rule."

Michael Hegyl sued the Auto Club to collect Underinsured Motorist Coverage that he had purchased with his No Fault Coverage.  Hegyl was badly hurt when a driver who had fallen asleep at the wheel rear-ended his Jeep.  He settled his claim against the at-fault for the at-fault's liability limits of $20,000.00 and then attempted to recover the remainder of his damages from the Auto Club.  The Auto Club rejected his claim, relying on language in its UM/UIM policy that waived the coverage if an insured settled the underlying injury claim without the insurer's written consent.

Hegyl filed suit, but his claim was summarily dismissed by the trial court because he hadn't complied with the insurer's written notice language.  On appeal, he argued that the disputed language was sent to him as part of an amendatory endorsement which he never received.  He also argued that the disputed language was ambiguous and void as against public policy. 

The appellate judges rejected his arguments on appeal.  They recited the facts contained in an AutoClub affidavit "confirming" its record of mailing Hegyl's amendatory endorsements; they deemed Hegyl's denial inadequate to create a question of fact.  They held that under the "mailbox rule" the AutoClub's facts created a rebuttable presumption of receipt and the court deemed Hegyl's response to be both inconsistent and conclusory and therefore entitled to no weight.

The Court also noted the Michigan Supreme Court's firm holding that, with the exception of mandatory statutory coverages, an insurer can include in a policy any language it chooses and the court will not review that language to assure that it is reasonable or reasonably understood by the insured.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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