KLAPP v. UNITED INS. GROUP AGENCY, INC.

MARKMAN, J.

We granted leave to appeal in this case to consider whether defendant breached the parties' written contract by refusing to pay plaintiff retirement renewal commissions on insurance policies that plaintiff sold on behalf of defendant while plaintiff was working for defendant. The trial court denied defendant's motion for summary disposition. It concluded that the contract was ambiguous and, thus, that its interpretation raised a question of fact that must be decided by the jury, which could consider relevant extrinsic evidence. The jury found in favor of plaintiff. The Court of Appeals reversed, concluding that the contract unambiguously stated that an agent must be at least sixty-five years old and have worked at least ten years for defendant in order to qualify for retirement renewal commissions and, therefore, that the trial court erred in not granting defendant's motion for summary disposition. Because we agree with the trial court that the language of this contract is ambiguous and, thus, that its interpretation raises a question of fact for the jury to determine in light of relevant extrinsic evidence, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant's other appellate issue and plaintiff's cross-appeal.1

I. FACTS AND PROCEDURAL HISTORY

When plaintiff began working as an insurance agent for defendant in 1990, they entered into a contract, titled the "Agent's Agreement." Plaintiff permanently stopped working for defendant in 1997.2 Plaintiff brought this action, alleging that defendant failed to pay renewal commissions to which plaintiff was entitled pursuant to the vesting schedule in their contract that provided that an agent with seven years of service is entitled to the vesting of one hundred percent of his renewals.3 After discovery, defendant brought a motion for summary disposition pursuant to MCR 2.116(C)(10), contending that, in order for renewal commissions to be vested on the basis of retirement, one must be at least sixty-five years old and have worked for defendant for at least ten years.4 The trial court denied defendant's motion for summary disposition,5 finding the contract to be ambiguous,6 and the jury subsequently found in favor of plaintiff.7 The Court of Appeals then reversed, concluding that the contract unambiguously requires that an agent must be at least sixty-five years old and have worked at least ten years for defendant in order to qualify for retirement renewal commissions.8 We granted plaintiff'sapplication for leave to appeal.9

II. STANDARD OF REVIEW

We review de novo a trial court's ruling on a motion for summary disposition. Stanton v. Battle Creek, 466 Mich. 611, 614, 647 N.W.2d 508 (2002). Similarly, whether contract language is ambiguous is a question of law that we review de novo. Farm Bureau Mut. Ins. Co. v. Nikkei, 460 Mich. 558, 563, 596 N.W.2d 915 (1999). Finally, the proper interpretation of a contract is also a question of law that we review de novo. Henderson v. State Farm Fire & Cas. Co., 460 Mich. 348, 353, 596 N.W.2d 190 (1999).

III. ANALYSIS

The Agent's Agreement at issue here provides in relevant part:

Agent's Years                   % of
of Service                Renewals Vested

Less than 2 years               0%
2 years                        10%
3 years                        30%
4 years                        50%
5 years                        70%
6 years                        90%
7 years                       100%
8 years                       110%
9 years                       120%
10 years                      130%
11 years                      140%
12 years                      150%

With regard to retirement, the Agent's Manual provides:

When defendant moved for summary disposition, it argued that plaintiff was not entitled to renewal commissions because, although plaintiff had disengaged from the insurance industry, he was not at least sixty-five years old and had not worked for defendant for at least ten years, whereas the contract unambiguously required an agent to satisfy all three of these requirements in order to be eligible for retirement renewal commissions. Defendant further argued that, because the contract was unambiguous, extrinsic evidence may not be considered in interpreting the contract.

Plaintiff, on the other hand, argued that the contract was ambiguous because the vesting schedule in § 5(B) of the Agent's Agreement conflicts with the sixty-five years of age and ten years of service requirements in the Agent's Manual. That is, under the vesting schedule, a percentage of renewal commissions were vested after two years of service, while, under the Agent's Manual's definition of retirement, which the Agent's Agreement incorporated, renewal commissions were not vested at all until an agent reached sixty-five years of age and had served as an agent with defendant for ten years. Plaintiff further argued that, because this contract was ambiguous, its interpretation was a question of fact that must be decided by the jury in light of relevant extrinsic evidence. As already noted, the trial court agreed with plaintiff that the contract was ambiguous and, thus, must be interpreted by the jury in light of relevant extrinsic evidence.10

On appeal to the Court of Appeals, plaintiff argued that the early years of the vesting schedule (years two through nine) directly conflicted with the sixty-five years of age and ten years of service requirements, creating an ambiguity that the jury properly resolved against defendant. Defendant, on the other hand, argued that years two through nine of the vesting schedule should be ignored. The Court of Appeals, correctly recognizing that years two through nine of the vesting schedule had to be given some meaning, but disagreeing with plaintiff that they applied to agents who had retired, concluded that these years of the vesting schedule only applied to agents who died or had become disabled. Plaintiff filed a motion for rehearing, arguing that the Court of Appeals had overlooked § 5(A) of the Agent's Agreement, which provided that, regardless of age or years of service, an agent who died or became disabled while still employed was entitled to receive one hundred percent of his renewal commissions. Therefore, plaintiff argued, the Court of Appeals erred in concluding that years two through nine of the vesting schedule applied to agents who died or became disabled. The Court of Appeals denied plaintiff's motion for rehearing without explanation.

A. THE CONTRACT LANGUAGE IS AMBIGUOUS

"An insurance contract is ambiguous when its provisions are capable of conflicting interpretations." Nikkei, supra at 566, 596 N.W.2d 915. Accordingly, if two provisions of the same contract irreconcilably conflict with each other, the language of the contract is ambiguous. Further, courts cannot simply ignore portions of a contract in order to avoid a finding of ambiguity or in order to declare an ambiguity. Instead, contracts must be "`construed so as to give effect to every word or phrase as far as practicable.'"Hunter v. Pearl Assurance Co., Ltd, 292 Mich. 543, 545, 291 N.W. 58 (1940), quoting Mondou v. Lincoln Mut. Cas. Co., 283 Mich. 353, 358-359, 278 N.W. 94 (1938).

In our judgment, the vesting schedule found in § 5(B) of the Agent's Agreement irreconcilably conflicts with the Agent's Manual's definition of retirement, which the Agent's Agreement incorporates. Under the vesting schedule, an agent who has served two or more years with defendant is entitled to a percentage of renewal commissions; while, under the Agent's Manual's definition of retirement, an agent is only entitled to a percentage of renewal commissions if that agent is at least sixty-five years old and has served ten or more years with defendant. Accordingly, while plaintiff is entitled to renewal commissions under the vesting schedule, he is not entitled to renewal commissions under the Agent's Manual's definition of retirement. Therefore, the language of the contract is ambiguous.

The Court of Appeals attempted to avoid a finding of ambiguity by concluding that, if an agent has less than ten years of service with defendant, he cannot be considered retired and, thus, years two through nine of the vesting schedule would not apply to him; however, these years would apply to an agent who died or became disabled without reaching the age of sixty-five and without having ten years of service with defendant. Although the Court of Appeals is correct in recognizing that it must give some meaning to years two through nine of the vesting schedule, in its attempt to give these years some meaning, it has ignored another portion of the contract, that is, § 5(A) of the Agent's Agreement. Just as "[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory," State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644 N.W.2d 715 (2002), courts must also give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.

Section 5(A) of the Agent's Agreement provides that an agent who dies or becomes disabled is automatically one hundred percent vested. Therefore, contrary to the contention of the Court of Appeals, years two through nine of the vesting schedule, which provide for less than one hundred percent vesting, would have no application to an agent who dies or becomes disabled. If the contract is read, as the Court of Appeals read it, to require an agent to be at least sixty-five years old and to have served as an agent for defendant for at least ten years to be considered retired, years two through nine of the vesting scheduled are rendered meaningless. Because there is no way to read the provisions of this contract in reasonable harmony, the language of the contract is ambiguous.

B. INTERPRETATION OF AMBIGUOUS CONTRACT

It is well settled that the meaning of an ambiguous contract is a question of fact that must be decided by the jury. Hewett Grocery Co. v. Biddle Purchasing Co., 289 Mich. 225, 236, 286 N.W. 221 (1939). "`Where a contract is to be construed by its terms alone, it is the duty of the court to interpret it; but where its meaning is obscure and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation should be submitted to the jury, under proper instructions.'" O'Connor v. March Automatic Irrigation Co, 242 Mich. 204, 210, 218 N.W. 784 (1928) (citation omitted).

In resolving such a question of fact, i.e., the interpretation of a contract whose language is ambiguous, the jury is to consider relevant extrinsic evidence. As this Court explained in Penzien v. Dielectric Products Engineering Co., Inc, 374 Mich. 444, 449, 132 N.W.2d 130 (1965):

Looking at relevant extrinsic evidence to aid in the interpretation of a contract whose language is ambiguous does not violate the parol evidence rule.

In interpreting a contract whose language is ambiguous, the jury should also consider that ambiguities are to be construed against the drafter of the contract.11 Herweyer v. Clark Hwy. Services, Inc., 455 Mich. 14, 22, 564 N.W.2d 857 (1997).12 This is known as the rule of contra proferentem. However, this rule is only to be applied if all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have left the jury unable to determine what the parties intended their contract to mean.13 Accordingly, if the extrinsic evidence indicates that the parties intended their contract to have a particular meaning, this is the meaning that should be given to the contract, regardless of whether this meaning is in accord with the drafter's or the nondrafter's view of the contract. In other words, if a contract is ambiguous regarding whether a term means "a" or "b," but relevant extrinsic evidence leads the jury to conclude that the parties intended the term to mean "b," then the term should be interpreted to mean "b," even though construing the document in the nondrafter's favor pursuant to an application of the rule of contra proferentem would produce an interpretation of the term as "a."

However, if the language of a contract is ambiguous, and the jury remains unable to determine what the parties intended after considering all relevant extrinsic evidence, the jury should only then find in favor of the nondrafter of the contract pursuant to the rule of contra proferentem. In other words, the rule of contra proferentem should be viewed essentially as a "tie-breaker," to be utilized only after all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have been applied and found wanting.

This view of the rule of construing against the drafter of the contract is in accordance with the 2 Restatement Contracts, 2d, § 206, p. 105, which provides:

The comments following this rule state that "[i]n cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party...." Id. "[T]he rule is `the last one to be resorted to, and never to be applied except when other rules of interpretation fail.'" Id., Reporter's Note, p. 106, citation omitted. Treatises also indicate that this is a so-called "rule of last resort." For example, 5 Corbin, Contracts (Rev. ed., 1998), § 24.27, pp. 297-300, provides:

In addition, Williston, supra, § 32:12, pp. 480-482, provides:

The rule of contra proferentem is a rule of last resort because, "The primary goal in the construction or interpretation of any contract is to honor the intent of the parties," Rasheed v. Chrysler Corp., 445 Mich. 109, 127 n. 28, 517 N.W.2d 19 (1994), and the rule of contra proferentem does not aid in determining the parties' intent. Instead, the comments after the restatement refer to the rule of contra proferentem, not as a rule of interpretation, but as "a rule of legal effect." 2 Restatement, supra at 105. It is a rule of legal effect, rather than a rule of legal interpretation, because its purpose is not to render more accurate or more perfect a jury's understanding of the meaning of the contract, but is merely to ascertain the winner and the loser in connection with a contract whose meaning has eluded the jury despite all efforts to apply conventional rules of interpretation. As stated in Corbin, supra, p. 306:

In sum, the jury can consider relevant extrinsic evidence as an aid in interpreting a contract whose language is ambiguous. However, if, after the jury has applied all other conventional means of contract interpretation and considered the relevant extrinsic evidence, the jury is still unable to determine what the parties intended, the jury should then construe the ambiguity against the drafter. That is, the rule of contra proferentem is only to be applied if the intent of the parties cannot be discerned through the use of all conventional rules of interpretation, including an examination of relevant extrinsic evidence.

The concurring opinion asserts that, "when a contract is drafted entirely by one party, without any bilateral negotiations," the rule of contra proferentem "should be applied as the primary rule of construction, not as a last resort...." Post at 460. That is, when a contract whose language is ambiguous is drafted without bilateral negotiations, a jury should not be allowed to look at relevant extrinsic evidence in order to discern the parties' intent. Instead, the ambiguous language is simply to be construed against the drafter.

We respectfully disagree with the concurring opinion's reference to the rule of contra proferentem as a "rule of construction." In our judgment, the rule of contra proferentem is not a rule of construction, rather, as explained above, it is a rule of legal effect. See pp. 456-57. While rules of construction are designed to help determine the parties' intent, the rule of contra proferentem is designed to resolve a dispute where the parties' intent cannot be determined.

Further, as the concurring opinion correctly states, "[t]he ultimate objective in interpreting an ambiguous contract is to ascertain the intent of the parties...." Post at 461. Therefore, in our judgment, it is only obvious that a method of construing a contract that helps ascertain the intent of the parties should be preferred over one that does not.14 We agree with the concurring opinion that extrinsic evidence "`provides an incomplete guide with which to interpret contractual language.'" Post at 461. That is, extrinsic evidence is not the best way to determine what the parties intended. Rather, the language of the parties' contract is the best way to determine what the parties intended. However, where, as in cases such as this one, it is not possible to determine the parties' intent from the language of their contract, the next best way to determine the parties' intent is to use relevant extrinsic evidence. Such evidence at least affords a way by which to ascertain the parties' intent, unlike the rule of contra proferentem, which focuses solely on the status of the parties to a contract.15

Finally, we disagree with the concurring opinion's contention that "this Court has consistently applied the rule of construing against the drafter as the primary tool of construction...." Id. at 461. Not one of the cases cited in the concurring opinion, in fact, concludes that relevant extrinsic evidence is inadmissible to help a jury determine the parties' intent where the language of a contract is ambiguous. In other words, not a single one of these cases concludes that the rule of contra proferentem is somehow a "primary rule of construction." Instead, in each of these cases, the rule of contra proferentem was, in all likelihood, applied because there was no way to determine the parties' intent. That is, the language of the contract was ambiguous, but there was no relevant extrinsic evidence available.16 Therefore, the concurring opinion's reliance on these cases is misplaced.17

In this case, plaintiff introduced as extrinsic evidence an older version of the Agent's Agreement and deposition testimony from defendant's executives showing that defendant's past practice had been to pay former agents the renewal commissions specified by § 5(B) of the vesting schedule, regardless of whether those agents had ten years of service with defendant or had reached age sixty-five.

Plaintiff argues that the definition of retirement under the contract is simply "disengagement from the insurance industry" and that the second sentence under the section defining retirement in the Agent's Manual was unintentionally left over from a time before defendant's Agent's Agreement contained a vesting schedule. Not only does this construction of the contract accord meaning to the entire vesting schedule, but it is also the construction that defendant itself has applied for the past eight years, that is, since it adopted the new Agent's Agreement containing the vesting schedule.18 In other words, defendant had been paying the specified percentages of renewal commissions to agents, who were not sixty-five years of age and had not worked for defendant for at least ten years, as long as they had disengaged from the insurance industry.19

Defendant argues that the jury should not have considered this extrinsic evidence. However, as discussed above, the jury is to consider relevant extrinsic evidence when interpreting a contract whose language is ambiguous. How the drafting party has interpreted ambiguous contractual language in the past is certainly relevant in determining what the parties intended such language to mean. The meaning of a provision in a contract whose language is ambiguous "must be ascertained in the light of all of the relevant circumstances, ... including, ... the meanings accepted by the parties." Davis v. Kramer Bros. Freight Lines, Inc., 361 Mich. 371, 375, 105 N.W.2d 29 (1960). "There is no doubt that evidence of practical interpretation by the parties is admissible as an aid in the determination of the meaning to be given legal effect." Id. at 375-376, 105 N.W.2d 29.

Although the trial court correctly instructed the jury that it could consider relevant extrinsic evidence and that any ambiguities should be construed against the drafter pursuant to the rule of contra proferentem, the trial court failed to inform the jury that it could only apply the rule of contra proferentem if it was unable to discern the parties' intent from the extrinsic evidence. However, in this case, this error was harmless. The jury did one of two things here. The jury either construed the language of the contract in favor of plaintiff pursuant to the rule of contra proferentem, or it construed the language of the contract in favor of plaintiff because the extrinsic evidence pointed to a construction of the contract in plaintiff's favor.20 Accordingly, regardless of which approach the jury used, it reached the (same) right result and, thus, failure to reverse is not inconsistent with substantial justice. MCR 2.613(A); Cox v. Flint Bd. of Hosp. Managers, 467 Mich.1, 8, 651 N.W.2d 356 (2002).21

IV. CONCLUSION

If two provisions of the same contract irreconcilably conflict with each other, the language of the contract is ambiguous. In this case, the contract's definition of retirement irreconcilably conflicts with the contract's vesting schedule. Under the contract's definition of retirement, plaintiff is not entitled to renewal commissions; while, under the vesting schedule, plaintiff is entitled to renewal commissions. Accordingly, the contract language at issue here is ambiguous.

The interpretation of a contract whose language is ambiguous is a question of fact for the jury to decide. When interpreting a contract whose language is ambiguous, the jury is to consider relevant extrinsic evidence. That the drafting party interpreted the ambiguous contractual language in a certain way for many years is relevant extrinsic evidence.

In interpreting a contract whose language is ambiguous and in which the parties' intent cannot otherwise be determined through resort to relevant extrinsic evidence, the jury should construe any ambiguities against the drafter of the contract. That is, if, after the jury has considered all conventional means of contract interpretation and all relevant extrinsic evidence, it is still unable to determine what the parties intended, the jury should then construe the ambiguity against the drafter.

Therefore, we conclude that the trial court here did not err in instructing the jury that it should consider relevant extrinsic evidence in order to discern the parties' intent, and that it should also construe any ambiguities against the drafter. Although the trial court did err in failing to inform the jury that it should only construe ambiguities against the drafter if it cannot discern the parties' intent from the relevant extrinsic evidence, this error was harmless. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant's other appellate issue and plaintiff's cross-appeal.

MICHAEL F. CAVANAGH, J., concurring in the result.

I concur in the result only.

WEAVER, J. (concurring).

I concur in the decision to reverse the judgment of the Court of Appeals and remand the case to that Court for consideration of issues raised, but not addressed, below. I write separately because I disagree with the majority's holding that "the rule of contra proferentem is only to be applied if the intent of the parties cannot be discerned through the use of all conventional rules of interpretation, including an examination of relevant extrinsic evidence." Ante at 456. Although I agree that this is the general rule, I would hold that when a contract is drafted entirely by one party, without any bilateral negotiations, the rule that a contract is to be strictly construed against its drafter should be applied as the primary rule of construction, not as a last resort, and extrinsic evidence is not admissible to clarify ambiguity in the contract.

The doctrine of contra proferentem, under which a contract that is ambiguous will be construed against the party preparing it, is a well-established rule. See, e.g., Universal Underwriters Ins. Co. v. Kneeland, 464 Mich. 491, 498, 628 N.W.2d 491 (2001) (discussing the "rule requiring that contractual ambiguities be construed against the drafter"); Herweyer v. Clark Hwy. Services, Inc., 455 Mich. 14, 22, 564 N.W.2d 857 (1997) ("As the contract period under consideration is ambiguous, it must be construed against the drafter."). In general, it is a rule of last resort, to be applied only if the intent of the parties cannot be discerned by the use of other rules of interpretation. See 2 Farnsworth, Contracts (2d ed.), ch. 7 § 7.11, and 5 Corbin, Contracts (rev. ed., 1998), § 24.27, pp. 297-300.

The questions we asked the parties to address1 are whether extrinsic evidence should be precluded and whether the rule of construing against the drafter should be applied initially, instead of as a rule of last resort, when the contract is drafted entirely by one party without bilateral negotiation. I conclude that in such a case, the rule of contra proferentem should be applied as the primary rule of construction, not as a last resort, and that extrinsic evidence is not admissible to clarify the ambiguity.

The ultimate objective in interpreting an ambiguous contract is to ascertain the intent of the parties so the agreement can be carried out according to that intent. Loyal Order of Moose, Adrian Lodge 1034 v. Faulhaber, 327 Mich. 244, 250, 41 N.W.2d 535 (1950); Stine v. Continental Cas. Co., 419 Mich. 89, 112, 349 N.W.2d 127 (1984). When there are bilateral negotiations between the parties, a court can assume that there is a relation between the contract terms that were agreed upon and the parties' expectations as revealed by extrinsic evidence. However, "unless extrinsic evidence can speak to the intent of all parties to a contract, it provides an incomplete guide with which to interpret contractual language." SI Mgt. LP v. Wininger, 707 A.2d 37, 43 (Del. 1998) (emphasis in original).

The Supreme Court of Delaware has held that where ambiguity arises in a contract drafted solely by one side and offered to others on a take-it-or-leave-it basis, the rule of construing against the drafter is determinative. SI Mgt, supra; followed by Intel Corp. v. VIA Technologies, Inc., 174 F.Supp.2d 1038 (N.D.Cal., 2001). In SI Mgt the Delaware court analyzed its approach to interpreting insurance contracts. The Delaware courts had said that if an insurance contract is ambiguous, "`the principle of contra proferentem dictates that the contract must be construed against the drafter.'" SI Management, supra at 42 (citation omitted). The court found that the policy behind that principle of construing against the drafter is that the insurer was in complete control of creating and drafting the policy, while the insured had little say about those terms except to take them or leave them or to select from limited terms offered by the insurer. Because of that, the Delaware courts had consistently held that the insurer had an obligation to make the terms clear and should suffer the consequences of convoluted or confusing terms. In SI Mgt the Delaware Supreme Court expanded this principle to other contracts where there was not a bilaterally negotiated agreement, and one party had signed onto an agreement that it had no hand in drafting.

There are sound public-policy reasons behind a black letter rule that when contractual provision are drafted entirely by one party, any ambiguity in the contract is to be construed against the drafter. First, the rule of contra proferentem provides a strong incentive for a party drafting a contract to use clear and unambiguous language. Second, the use of extrinsic evidence in circumstances involving ambiguity could be destabilizing to contractual relations and require more involved litigation by allowing parties to use assertions of oral understandings and examples of past behavior rather than relying on a written contract with the understanding that any ambiguity should be construed against its drafter.

This Court has not previously addressed whether the rule of construing against the drafter should be used as a primary rule of construction in ambiguous contracts or only used after considering any extrinsic evidence available.2 However, in interpreting ambiguous contracts, this Court has consistently applied the rule of construing against the drafter as its primary, indeed sole, aid to construction. See Herweyer v. Clark Hwy. Services, 455 Mich. 14, 22, 564 N.W.2d 857 (1997) ("As the contract period under consideration is ambiguous, it must be construed against the drafter, the defendant."), Lichnovsky v. Ziebart Int'l Corp., 414 Mich. 228, 239, 324 N.W.2d 732 (1982) ("Any ambiguity in the expression must be construed against Ziebart, as its predecessor drafted the agreement."), Ladd v. Teichman, 359 Mich. 587, 592, 103 N.W.2d 338 (1960) ("We agree with appellees that appellant having drafted the contract, any ambiguity contained in it must be construed against him."), and Veenstra v. Associated Broadcasting Corp., 321 Mich. 679, 691, 33 N.W.2d 115 (1948) ("Defendants caused the drafting of the two contracts and any doubt or ambiguity concerning the nature of the contracts must be resolved against the defendants.").

Similarly, this Court has consistently applied the rule of construing against the drafter as the primary tool of construction in insurance contracts. In insurance contracts, one party decides the terms of the contract, drafts the contract, and presents it to the other party in a take-it-or-leave-it fashion, all with no bilateral negotiation. Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 445 Mich. 558, 567, 519 N.W.2d 864 (1994) (in interpreting insurance cases, a well-established principle of construction is, "Where ambiguity is found, the court must construe the term in the manner most favorable to the insured."). See also State Farm Mut. Automobile Ins. Co. v. Enterprise Leasing Co., 452 Mich. 25, 38, 549 N.W.2d 345 (1996) ("[b]ecause State Farm prepared the form insurance contracts, any ambiguity must be strictly construed against it."), Raska v. Farm Bureau Mut. Ins. Co. of Michigan, 412 Mich. 355, 362, 314 N.W.2d 440(1982) ("If a fair reading of the entire contract of insurance leads one to understand that there is coverage under particular circumstances and another fair reading of it leads one to understand that there is no coverage under the same circumstances the contract is ambiguous and should be construed against its drafter and in favor of coverage."), and Bonney v. Citizens' Mut. Automobile Ins. Co., 333 Mich. 435, 438, 53 N.W.2d 321 (1952) ("An ambiguous contract must be construed against the party who prepared it.").3

I would hold that this principle should be extended beyond insurance contracts and applied to other contracts in which there is a similar disparity of control in the creation of the terms of the contract. Here defendant was the entity in sole control of the process of creating and setting forth the terms of the contract. The parties did not engage in bilateral negotiation; the plaintiff's only choice in the terms of the contract was to take them or leave them. In such a situation, any ambiguity in the contract should have been construed against the drafter, without considering the extrinsic evidence.

In this case, the trial judge allowed the plaintiff to introduce a variety of extrinsic evidence, including references to the older version of the Agent's Agreement4 and deposition testimony by the defendant's executives.5 I would hold that the trial court erred in admitting the extrinsic evidence to resolve the contract's ambiguity. However, that error was harmless, because the same result was achieved as would have been if the contract had been construed against its drafter, defendant.

Accordingly, I concur with the decision to reverse the judgment of the Court of Appeals and remand the case to that Court for consideration of those issues raised, but not addressed, below.

MARILYN J. KELLY, J., joins the concurring opinion.