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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. However, “[b]ecause 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).
Here, Fremont sent a letter to Pabst informing her that Fremont was rescinding her
insurance policy premised on Pabst’s failure to disclose Cundiff’s residency, coupled with
Cundiff’s driving record that made him ineligible for insurance coverage. Fremont argued that
failure to disclose such information constituted a misrepresentation of material fact that entitled
Fremont to declare the policy void at inception. Fremont argued in the trial court that the equities
weighed in favor of enforcing rescission of the policy against Cundiff as well such that it was not
liable for the PIP benefits related to Cundiff’s injuries that were sought in this action.
The parties agree that in the context presented here, “rescission does not function by
automatic operation of the law,” and the trial court must “balance the equities” to determine
whether the equitable remedy of rescission is available under the circumstances. Id. at 409-411
(quotation marks and citation omitted). “Just as the intervening interest of an innocent third party
does not altogether bar rescission as an equitable remedy, neither does fraud in the application for
insurance imbue an insurer with an absolute right to rescission of the policy with respect to third
parties.” Id. at 411. “[W]hen 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 and citation omitted; ellipsis and second alteration in
original). “[T]he party seeking rescission has the burden of establishing that the remedy is
warranted.” Farm Bureau Gen Ins Co of Mich v ACE American Ins Co, 337 Mich App 88, 100;
972 NW2d 325 (2021) (Farm Bureau II).
This Court has adopted the following framework for balancing the equities under Bazzi:
Justice MARKMAN recently articulated factors applicable to balancing the equities.
Farm Bureau Gen Ins Co of Mich v ACE American Ins Co, 503 Mich 903, 906-
907; 919 NW2d 394 (2018) (MARKMAN, J., concurring). Justice MARKMAN
described a “nonexclusive list of factors” the trial court should consider when
resolving the issue of rescission. Reduced to their essence, five factors were
identified and they address: (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. Id. We
conclude that the factors outlined in Justice MARKMAN’s concurrence to render a
determination regarding the balance of the equities presents a workable framework
as well as necessary guidance to the lower courts and the litigants, and therefore we
adopt it as our own. [Pioneer, 331 Mich App at 411.]