Fletcher v. State Treasurer , 16 Mich. App. 87 ( 1969 )

16 Mich. App. 87 (1969) 167 N.W.2d 594

FLETCHER
v.
STATE TREASURER

Michigan Court of Appeals.

Leave to appeal granted November 12, 1969.

Dobson, Griffin & Barense, for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., Assistant Attorney General, for defendant.

BEFORE: QUINN, P.J., and McGREGOR and V.J. BRENNAN, JJ.

Leave to appeal granted November 12, 1969. See 382 Mich. 794.

McGREGOR, J.

In 1960, one of the plaintiffs was injured in an accident while driving a car owned by the other plaintiff. In 1963, plaintiffs sued the estate of the deceased driver of the other car involved in the accident, and each received a judgment based on the deceased driver's negligence. The automobile insurance company of the deceased driver was placed in statutory receivership and under the control of the receiver in 1964. Before the accident and in accordance with § 413 of the insurance code of 1956, CLS 1961, § 500.100 et seq. (Stat Ann 1956 Rev § 24.1100 et seq.), the insurance company deposited securities of a substantial value with defendant.

In 1967, plaintiffs filed this action for a circuit court judgment declaring the deposited securities a trust fund in which plaintiffs had shares equal to their negligence judgments in full or to the limits of the deceased driver's coverage, whichever was less. Plaintiffs requested that defendant, the receiver, or any other person in control of the fund, be directed to pay plaintiffs, and that either the receiver be joined in the action or their complaint become part of the receivership proceedings. After the complaint was transferred to the judge handling the receivership matter, defendant and the receiver filed a motion for summary judgment. The court's judgment determined that under the insurance code the deposited securities are general assets held in trust for the benefit of all policyholders and creditors of decedent's insurer and further, that plaintiffs did not have either a special claim or a preferred claim to the deposit. Plaintiffs filed the present appeal.

The issue presented is whether tort judgment creditors of policyholders have priority over general creditors in the statutory trust fund of securities deposited with the state treasurer by a domestic casualty insurance company when that company becomes insolvent.

Plaintiffs contend that the deposit is a trust fund for the benefit of the insurance company's policyholders, and thus their judgment creditors have priority over general creditors. Defendant argues that the deposit is a general asset, available to general creditors and policyholders with no priority created.

According to § 413 of the Michigan insurance code of 1956, CL 1948, § 500.413, as amended by PA 1966, No 221 (Stat Ann 1968 Cum Supp § 24.1413), domestic casualty insurers are required to deposit securities with defendant as a precondition to doing business in the state. Subsection (a) states that the security shall be assigned to defendant in trust for the benefit of all policyholders. (Emphasis supplied.) Under § 1124(2) of the code (CLS 1961, § 500.1124[2] [Stat Ann 1957 Rev § 24.11124(2)]), when the insurer becomes insolvent, its assets, including the trust deposit, shall be distributed equally and justly among the persons equitably entitled thereto. Section 7837(8) of the code (CLS 1961, § 500.7837 [8] [Stat Ann 1957 Rev § 24.17837 (8)]), adopted from the Uniform Insurers Liquidation Act, contains the following under the definition of general assets:

"Assets held in trust and assets held on deposit for the security of or benefit of all policyholders, or all policyholders and creditors in the United States, shall be deemed general assets." (Emphasis supplied.)

The next subsections include the following definitions:

"(9) ``Preferred claim' means any claim with respect to which the law of a state or of the United States accords priority of payment from the general assets of the insurer.

"(10) ``Special deposit claim' means any claim secured by a deposit made pursuant to statute for the security or benefit of a limited class or classes of persons, but not including any general assets." (Emphasis supplied.)

Since no statute gives plaintiffs, as tort judgment creditors, priority of payment from the general assets of decedent's insurance company, plaintiffs' claim is not preferred. Similarly, the trust deposit was not made for the benefit of a limited class of persons under the wording of subsections (8) and (10), and therefore, plaintiffs' claim is not a special deposit claim. Thus, under subsection (8), the deposited securities are general assets for the benefit of all policyholders, including their judgment creditors, and general creditors. There is no priority established by the code sections favoring judgment creditors.

Plaintiffs' main argument states that it is unfair to put a policyholder or the person injured by him to whom the insurance company is liable after tort judgment in the same position as a general creditor. Notwithstanding the alleged unfairness of the result, the statute's language, as plaintiffs' argument implicitly acknowledges, places policyholders, their judgment creditors, and general creditors on an equal footing insofar as the securities deposited with defendant are concerned. The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent as expressed in the statute. June v. School District No. 11, Southfield Township, Oakland County (1938), 283 Mich. 533, 543 (116 A.L.R. 581). The statutory language clearly indicates the legislature's intent to treat the deposit as a general asset for policyholders and creditors, with no priority expressed or intended for judgment creditors of policyholders.

Affirmed. No costs, a public question being involved.

All concurred.