Auto Club Ins. Ass'n v. Lanyon

142 Mich. App. 108 (1985) 369 N.W.2d 269

AUTO CLUB INSURANCE ASSOCIATION
v.
LANYON

Docket No. 76580.

Michigan Court of Appeals.

Decided April 16, 1985.

Gromek, Bendure & Thomas (by Nancy L. Bosh), for plaintiff.

McIntosh, McColl, Allen, Carson, McNamee & Strickler (by Robert W. Carson), for defendant Lanyon.

Before: DANHOF, C.J., and T.M. BURNS and R.H. BELL,^[*] JJ.

PER CURIAM.

This appeal arises out of a declaratory action initiated by the Auto Club Insurance Association to determine the extent of its liability. Defendant Brian Lanyon was injured on May 11, 1982, when his motorcycle collided with an automobile driven by defendant Carole L. Gerstenberger, owned by her father, Clayton Gerstenberger, and insured by ACIA.

Brian Lanyon brought suit against Carole and Clayton Gerstenberger. Lanyon's complaint was later amended to add a separate claim brought on behalf of his daughter, Connie Lanyon, for the loss of her father's society and companionship.

At the time of the accident, Clayton Gerstenberger was the "master member" under a policy covering five automobiles. Clayton Gerstenberger owned two of these vehicles, his wife owned one, and his two sons each owned separate vehicles. The liability limits on each of these vehicles, including the vehicle which was involved in the accident, were $20,000 per person and $40,000 per occurrence. Lanyon sued for damages in an amount likely to exceed these policy limits. ACIA brought the instant suit for declaratory relief. The lower court entered a judgment which enforced an anti-stacking provision found in ACIA's policy but recognized a separate coverage limit for Connie Lanyon's claim of loss of parental society and companionship. ACIA and Lanyon now appeal and cross-appeal, respectively, to this Court as of right.

We first consider whether the circuit court erred in enforcing the anti-stacking provision found in ACIA's insurance policy. Lanyon contends that the lower court erred in not allowing him to stack the coverage on at least two, if not all five, of the automobiles covered under Gerstenberger's master policy. Lanyon primarily relies on Fletcher v Aetna Casualty & Surety Co, 80 Mich. App. 439; 264 NW2d 19 (1978). We find that Fletcher is distinguishable, as noted by the Supreme Court on review of that case:

"Bradley, Hickman, Ellis, Ruesing and Fletcher arose before the amendments of the Motor Vehicle Accident Claims Act restricting the liability of the fund established under that act to persons not owning a motor vehicle for which security must be maintained under the no-fault act and to accidents occurring before January 2, 1976 and the repeal of the uninsured motorist amendment to the Insurance Code. Davidson, Williams, and Schigur concern coverage issued and accidents occurring after restriction of the fund's liability and repeal of the amendment.

"We conclude that in policies effective on or after October 1, 1973, the date of repeal of the uninsured motorist amendment, ``other insurance' clauses which provide that damages shall be deemed not to exceed the policy limits and that the uninsured motorist coverage of the policy shall apply pro rata where there is other similar insurance available are enforceable and benefits under such policies may not be stacked." 409 Mich. 1, 22-23; 294 NW2d 141 (1980) (footnotes omitted).

In the instant case, the insurance policy was effective after October 1, 1973, and contained a similar anti-stacking clause. According to Bradley, supra, Fletcher is distinguishable. State Farm Mutual Automobile Ins Co v Ruuska, 412 Mich. 321; 314 NW2d 184 (1982), is also distinguishable. See Miller v DAIIE, 129 Mich. App. 382; 341 NW2d 155 (1983); Deyarmond v Community Service Ins Co, 132 Mich. App. 191; 347 NW2d 201 (1984), lv to appeal held in abeyance, in an unpublished order of the Supreme Court, July 30, 1984, pending the Supreme Court's decision in DAIIE v Widling, 114 Mich. App. 6; 318 NW2d 551 (1982), lv granted 417 Mich. 1037 (1983). The lower court therefore did not err in prohibiting the stacking of liability limits under Gerstenberger's master policy.

We next consider whether the trial court erred in finding that Connie Lanyon was entitled to a separate limit of liability for her claim of loss of parental society and companionship. In Berger v Weber, 411 Mich. 1; 303 NW2d 424 (1981), the Supreme Court recognized that a child can maintain a separate cause of action for loss of parental society and companionship when a parent is injured by the tortious acts of a third party. Lanyon contends that, since Berger recognizes that Connie's claim is separate and independent, she is entitled to separate and independent limits under the insurance policy. The insurance policy states:

"The Limits of Liability shown on the Declaration Certificate apply as follows:

"The bodily injury Liability Limit for each person is the maximum amount that will be paid for bodily injury sustained by one person in any one occurrence. This limit includes all claims for derivative damages allowed under the law." (Emphasis added.)

We interpret this language to mean that the bodily injury sustained by one person in any one occurrence shall include all injuries and damages sustained by others as a consequence of that bodily injury. See State Farm Mutual Automobile Ins Co v Ball, 127 Cal App 3d 568; 179 Cal Rptr 644 (1981). Connie Lanyon's loss of parental society and companionship as a result of her father's bodily injury is not a separate bodily injury sustained by her as a result of the same occurrence. Traveler's Indemnity Co v Cornelsen, 272 Md 48; 321 A2d 149 (1974).

While Cornelsen and Ball, supra, dealt with claims for loss of spousal consortium, we find their reasoning equally applicable in the instant case. In Berger, supra, the Supreme Court indicated that claims for loss of parental society and companionship are very similar to claims for loss of spousal consortium. We therefore reverse the lower court's finding that Connie Lanyon's claim for loss of society and companionship entitled her to a separate claim for bodily injury thereby increasing the policy's limitations. We note that our holding does not in any way affect the validity of Connie Lanyon's derivative claim for loss of society and companionship which should be determined in the underlying action between Lanyon and the Gerstenbergers.

Affirmed in part; reversed in part.

NOTES

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