Detroit Automobile Inter-Insurance Exchange v. Pulig ( 1977 )

80 Mich. App. 288 (1977) 263 N.W.2d 52

DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
v.
PULIG

Docket No. 77-994.

Michigan Court of Appeals.

Decided December 8, 1977.

Selby, Dickinson, Pike, Mourad & Brandt (by James H. Schoolmaster), for plaintiff.

Roth & Dean, P.C. (by Robert Kaufman), for defendant.

Before: D.E. HOLBROOK, P.J., and N.J. KAUFMAN and J.E. McDONALD,^[*] JJ.

D.E. HOLBROOK, P.J.

On March 23, 1973, the defendant, Rita G. Pulig, was insured under two policies of insurance (Hanover Insurance Company and DAIIE) and suffered injuries in an accident with an uninsured motorist. The defendant was a guest passenger in the vehicle driven by her husband. After investigation it was determined that the uninsured motorist was negligent and responsible for the accident. The accident-involved vehicle was covered by a policy of insurance issued by Hanover and the other vehicle owned by defendant and her husband was insured by DAIIE.

The defendant requested an arbitration of her claim under the terms of the insurance contract with Hanover and pursuant thereto an award was duly made by the arbitrator in favor of defendant for $16,000. This amount we understand has been paid.

The defendant then requested that an arbitrator be appointed to hear the claims of defendant for damages under the terms of the insurance contract issued by DAIIE, apparently claiming that the award received from Hanover did not satisfy all of her claims for damages.

In November 1976, plaintiff filed this suit against defendant for declaratory judgment claiming: (1) defendant had already received fair and just compensation for her injuries, (2) plaintiff was entitled to an injunction prohibiting arbitration, and (3) allowance of an order staying arbitration.

Defendant answered the complaint and demanded arbitration and moved for summary judgment. Plaintiff then filed for a summary judgment and a motion to dismiss the arbitration. On February 10, 1977, an order was entered by the circuit court granting summary judgment in favor of plaintiff and dismissing the arbitration. Defendant appeals as of right.

The subject insurance policy was issued on June 16, 1972. In a pre-MCLA 500.3010; MSA 24.13010 case, Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich. 562; 153 NW2d 655 (1967), the Court denied stacking of recoveries. Thereafter, the Legislature passed MCLA 500.3010; MSA 24.13010, which took effect October 25, 1965, and was effective until its repeal by the Michigan no-fault insurance act, MCLA 500.3101 et seq.; MSA 24.13101 et seq., effective October 1, 1973. The policy of insurance in the instant case was effective on the date of the accident and, therefore, the cases following the enactment of MCLA 500.3010; MSA 24.13010 govern. Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich. 476, 479; 201 NW2d 792 (1972).

The Michigan Supreme Court in a triology of 1972 cases^[1] dealt with the general question of the extent to which a person injured in an accident by an uninsured motorist was permitted to recover on more than one policy. The Court held that "stacking of uninsured motorist coverage was proper until the judicially determined loss has been satisfied". Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich. 464; 201 NW2d 786 (1972), Boettner v State Farm Mutual Insurance Co, 388 Mich. 482; 201 NW2d 795 (1972).

Plaintiff asserts that the mere fact that Mrs. Pulig might have $40,000 protection available to her does not mean that she can litigate her claim under the two policies until she recovers the maximum amount of benefits under the policies. Such a situation was specifically prohibited in Blakeslee:

"``If an insured's loss has been totally compensated by other insurance he is no longer "legally entitled" to recover damages.' Collins * * * v [Motorists Mutual Insurance Co, 36 Mich. App. 424, 432-433; 194 NW2d 148 (1971)]. That is, the insured may pyramid recovery until his judicially determined loss has been satisfied." Blakeslee at 475. (Emphasis added.)

This action was not brought under GCR 1963, 769 and it is not applicable in any event in the first instance because an issue herein is whether stacking is permitted in this matter and if it is, to what extent is it allowed.

In the arbitration proceeding brought against Hanover Insurance Company the arbitrator awarded $16,000 to defendant. We are faced with the question, did this award of $16,000 totally compensate defendant for her loss? Also, was this a judicially determined loss?

Upon the record presented, we are unable to answer these questions with certainty. We do not have the terms of the Hanover contract, which may disclose exceptions or limitations to recovery of losses thereunder. If there were no reservations, then it must be determined whether all the claims of defendant were permitted to be presented to the arbitrator. For guidance see, Kallos v Community Service Insurance Co, 41 Mich. App. 652; 200 NW2d 470 (1972). Another question that we cannot answer, did the Hanover contract provide that the award by the arbitrator could be affirmed and enforced by the circuit court, in accordance with MCLA 600.501; MSA 27A.501 and MCLA 600.525; MSA 27A.525? Stowe v Mutual Home Builders Corp, 252 Mich. 492; 233 N.W. 391 (1930).

We are cognizant of the ruling by our Court in the case of P R Post Corp v Maryland Casualty Co, 68 Mich. App. 182; 242 NW2d 62 (1976). That case did not involve stacking and there were other issues present therein that are not present in this case.

The summary judgment rendered by the trial court is premature. The issues should be resolved in a trial on the merits.

Reversed and remanded, costs to defendant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich. 464; 201 NW2d 786 (1972), Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich. 476, 479; 201 NW2d 792 (1972), Boettner v State Farm Mutual Insurance Co, 388 Mich. 482; 201 NW2d 795 (1972).