Dorey v. Savage

Per Curiam.

On September 24, 1974, plaintiff’s parked automobile was hit and damaged by a car owned by Frederick M. Savage and driven by an unidentified motorist. Plaintiff’s car was covered under the compulsory no-fault insurance provisions, MCL 500.3101 et seq.; MSA 24.13101 et seq., but was not insured under an optional collision policy that would have covered this damage.

Suit was commenced in Common Pleas Court. It was there determined that the unknown driver had been driving without owner Savage’s permission. Plaintiff could not claim against Savage’s insurance and, because he also could not recover under his own insurance nor from the unidentified motorist, plaintiff sought to recover under the Motor Vehicle Accident Claims Act (MV AC A), MCL 257.1101 et seq.; MSA 9.2801 et seq.

Defendant Secretary of State argued below that 223 PA 1974 amended MCL 257.1105; MSA 9.2805 to preclude plaintiff from recovery under the MVAC A. The relevant portion of the section follows:

"A payment shall not be made under this act for an accident occurring after the effective date of this amendatory act to an owner or registrant of a motor vehicle for which security under sections 3101 to 3179 of Act No. 218 of the Public Acts of 1956, as amended, is required.”

Sections 3101 through 3179 refer to the no-fault act.

Plaintiff contended that the sentence did not apply since collision insurance is not a security required under no-fault. MCL 500.3101; MSA 24.13101; MCL 500.3131; MSA 24.13131.

The judgment for the plaintiff in Common Pleas was affirmed on appeal to the Wayne Circuit. Upon application by the Secretary of State, this Court granted leave.

In 1968, the MV ACA established a fund, the purpose of which was to compensate a person injured as a result of negligent operation of a motor vehicle by an uninsured motorist. It was remedial legislation aimed at aiding the innocent injured party. Lisee v Secretary of State, 388 Mich 32, 44-45; 199 NW2d 188 (1972). This Court has likened the MV AC A provision to a state-administered insurance fund with its primary beneficiaries being those injured by the uninsured. Bray v Department of State, 69 Mich App 172, 178; 244 NW2d 619 (1976), lv den 397 Mich 851 (1976). Whether the plaintiff here can avail himself of this fund is the question. The answer, as the lower court stated, "depends on whether or not plaintiff was required to have security for his vehicle under sections 3101 to 3179 of 1956 PA 218, as amended”.

By virtue of § 3101 of 1956 PA 218, the owner of a motor vehicle, plaintiff herein, is required to maintain an insurance policy containing coverage for personal protection insurance, property protection insurance, and residual liability insurance as defined in the no-fault act. It must first be determined whether plaintiff was required to maintain property protection insurance with regards to this kind of accident.

Section 3123 declares:

"(1) Damage to the following kinds of property is excluded from propérty protection insurance benefits:

"(a) Vehicles * * * unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.

"(b) Property owned by a person named in a property protection insurance policy * * * if the person named * * * was the owner [or] registrant * * * of a vehicle involved in the motor vehicle accident out of which the property damage arose.”

The court below interpreted this provision to mean that while an owner of a motor vehicle must maintain in full force and effect a no-fault insurance policy, such policy need not mandatorily provide collision insurance coverage. Collision insurance is an option to be paid for by the owner or the owner may underwrite his own risk by refusing such additional coverage. We agree with this interpretation. The 1974 amendment to the Motor Vehicle Accident Claims Act precludes plaintiff from recovery for anything required to be covered under his no-fault policy. This claim falls outside the required policy provisions.

Another reason we are persuaded this claim should lie against the MV AC A is that MCL 257.1115; MSA 9.2815 did render the fund liable under the facts here present. This provision is not specifically dealt with in no-fault or in any amending legislation. While an optional collision policy would have covered the situation, there is no specific indication that this was the Legislature’s way of excusing the MVACA’s liability. There is no mention in the no-fault act of how property damage is to be dealt with where the offending driving is not recoverable. Since the Legislature felt it necessary to cover such a situation under the MV AC A and has not similarly dealt with the issue under no-fault, we decline to infer a legislative intent to remove the fund’s liability to this plaintiff. We do note that the Legislature subsequently clearly limited the fund’s liability to accidents occurring prior to January 2, 1976. MCL 257.1133; MSA 9.2833.

For the foregoing reasons, we affirm. No costs.