Kimball & Russell v. Citizens Insurance

Order On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the order of the Court of Appeals that granted rehearing, insofar as it directed the trial court to enter a judgment for the defendant, and we REMAND this matter to the Wayne Circuit Court for further proceedings. At the May 15, 1989 hearing, counsel for plaintiff made it very clear that he contended that the rack did not ""collapse"" within the meaning of the policy but rather ""fell over."" However, counsel was prepared to assume that the rack ""collapsed"" only ""for purposes of this motion today"" because that conditional stipulation permitted him to argue that there was coverage under the ""ensuing peril"" provision. The fact that the Court of Appeals found that argument to be lacking in merit is not dispositive because the trial court still could determine that what occurred is not a ""collapse"" within the meaning of this all risk policy. In all other respects, we DENY leave to appeal because we are not persuaded that the questions presented should be reviewed by this Court prior to further trial court proceedings and any further subsequent review by the Court of Appeals.