Greene v. State Farm Mutual Automobile Insurance , 83 Mich. App. 505 ( 1978 )

83 Mich. App. 505 (1978) 268 N.W.2d 703

GREENE
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Docket No. 77-3287.

Michigan Court of Appeals.

Decided May 22, 1978.

Sloan, Zarbock & Risdon (by William L. Benefiel), for plaintiff.

James, Dark, Craig & Brill, for defendant.

Before: R.B. BURNS, P.J., and J.H. GILLIS and D.C. RILEY, JJ.

J.H. GILLIS, J.

Plaintiff was injured on May 16, 1975, in an automobile accident while covered by a no-fault automobile insurance policy issued by defendant. The trial court granted plaintiff's motion for partial summary judgment against defendant. GCR 1963, 117.2(2) and (3).

Defendant contends that MCL 500.3109(1); MSA 24.13109(1), which allows an insurer to set off benefits payable against benefits received from a governmental source, is constitutional and not violative of public policy. We agree.

In Smart v Citizens Mutual Insurance Co, 83 Mich. App. 30; 268 NW2d 273 (1978), the panel, which included this writer, concluded that:

"In mandatory terms, the Legislature, by its enactment of the no-fault automobile insurance provisions, established a minimum level of disability benefits for Michigan citizens who suffer adverse financial consequences from personal injury automobile accidents. The establishment of that minimum level is maintained by Section 3109(1).

"All benefits derived from governmentally promulgated programs are combined under that section to reach the predetermined minimum benefit level. Those who desire to enhance that benefit provision may do so by voluntarily entering into private contractual arrangements."

Accordingly, on the basis of Smart, supra, we find that the trial court erred in granting plaintiff's motion for summary judgment.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.

R.B. BURNS, P.J., concurred.

D.C. RILEY, J. (dissenting).

I respectfully dissent.

Defendant's contention that MCL 500.3109(1); MSA 24.13109(1), which authorizes an insurer to set off benefits payable against benefits received from a governmental source, is constitutional and not violative of public policy, was answered contrary to its position in Wysocki v Detroit Automobile Inter-Insurance Exchange, 77 Mich. App. 565; 258 NW2d 561 (1977), O'Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich. App. 487; 245 NW2d 801 (1976), lv gtd, 397 Mich. 848 (1976), Pollock v Frankenmuth Mutual Insurance Co, 79 Mich. App. 218; 261 NW2d 554 (1977), and Mielke v Michigan Millers Mutual Insurance Co, 82 Mich. App. 721; 267 NW2d 165 (1978).

I concur in the holdings of these decisions.

I would affirm.