Auto-Owners Insurance v. Biddis , 107 Mich. App. 173 ( 1981 )

107 Mich. App. 173 (1981) 309 N.W.2d 192

AUTO-OWNERS INSURANCE COMPANY
v.
BIDDIS.

Docket No. 46706.

Michigan Court of Appeals.

Decided June 16, 1981.

Rubenstein, Pruchnicki & Chittle (by Alan M. Smith), for plaintiff.

Charles A. Forrest, Jr., for defendant.

Before: BEASLEY, P.J., and R.M. MAHER and R.S. HOFFIUS,^[*] JJ.

R.M. MAHER, J.

Plaintiff appeals by leave granted the order of the trial court denying plaintiff's motion for summary judgment under GCR 1963, 117.2(2) and 117.2(3).

The facts of this case are not in dispute. On May 23, 1977, a motor vehicle accident involving a car owned and driven by defendant, Michael Stanley Biddis, and a second vehicle driven by Manuel Mello resulted in serious injuries to defendant's passenger, Diedre Ann Biddis. Because defendant's motor vehicle was uninsured, Diedre Biddis filed an application with the Assigned Claims Facility pursuant to § 3172 of the no-fault automobile insurance act. MCL 500.3172; MSA 24.13172. The claim was assigned to plaintiff, Auto-Owners Insurance Company, which paid Diedre Biddis benefits totaling $34,098.98. Plaintiff, seeking to recover this money plus costs in handling the assigned claim pursuant to § 3177 of the no-fault automobile insurance act, MCL 500.3177; MSA 24.13177, commenced this suit against defendant as owner and operator of the uninsured vehicle.

At issue in this case is whether § 3177 allows an insurer who has paid an assigned claim to recover the amount paid together with costs incurred from the owner or registrant of the uninsured vehicle without regard to the fault of such owner or registrant. The trial court held that the insurer could not recover without establishing such fault.

The statute clearly makes no reference to fault:

"An insurer obligated to pay personal protection insurance benefits for accidental bodily injury to a person occupying an uninsured motor vehicle or to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his estate. Failure of such a person to make payment withn 30 days is a ground for suspension or revocation of his motor vehicle registration and operator's license. An uninsured motor vehicle for the purpose of this section is a motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident." MCL 500.3177; MSA 24.13177.

The defendant and the trial court, however, relied on the following isolated passage in this Court's opinion in McKendrick v Petrucci, 71 Mich. App. 200, 206-207; 247 NW2d 349 (1976):

"The owner or registrant of an automobile who does not secure the required coverage is guilty of a misdemeanor, punishable by up to one year imprisonment and up to a $500 fine. MCL 500.3102(2); MSA 24.13102(2). The owner or registrant of an uninsured automobile is also liable to the no fault insurer who pays benefits to a person occupying an uninsured automobile. MCL 500.3177; MSA 24.13177. In providing that the uninsured tortfeasor does not have the same immunity that exists when there is insurance coverage, the act creates another significant incentive towards the goal of insurance coverage for all automobiles." (Emphasis added.) By seizing on this Court's use of the word "tortfeasor", the trial court held that the plaintiff must establish that defendant is a tortfeasor before being entitled to recover under § 3177.

Reliance on McKendrick is totally misplaced. The question before us in the instant case was not at issue in McKendrick, which instead involved the constitutionality of the no-fault automobile insurance act's partial abolition of tort liability. In its proper context, it is readily apparent that the above-quoted passage expresses three separate and distinct points. At the point at which this quote appears the Court in McKendrick was discussing the various incentives to secure no-fault coverage provided in the act. The Court first noted that failure to secure such coverage was a misdemeanor. MCL 500.3102(2); MSA 24.13102(2). Second, the Court noted that an uninsured motorist would be liable to reimburse an insurer for benefits paid to an occupant of the uninsured vehicle by virtue of § 3177. Finally, the Court noted that a third incentive resulted from the fact that an uninsured motorist who was also established to be a tortfeasor with regard to an accident does not enjoy the same degree of immunity under § 3135, MCL 500.3135; MSA 24.13135, as would an insured motorist. Accordingly, the Court's reference to an "uninsured tortfeasor" in the third section of the passage has no connection to the Court's brief recitation of the effect of § 3177 in the second section of the passage. While an uninsured motorist remains liable to injured parties if fault is established, § 3177 imposes a more limited liability without regard to fault.

Section 3177 clearly makes no mention of fault. Accordingly, plaintiff was entitled to recover from defendant as a matter of law and the trial court erred in denying plaintiff's motion for summary judgment.

Reversed and remanded.

NOTES

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