DocketNumber： 8474
Citation Numbers： 185 N.W.2d 147, 29 Mich. App. 235, 1970 Mich. App. LEXIS 1106
Judges： Lesinski, C.J., and Bronson and Engel
Filed Date： 12/10/1970
Status： Precedential
Modified Date： 3/3/2016
Michigan Court of Appeals.
Sanford N. Lakin, for plaintiffs.
Rouse, Selby, Dickinson, Shaw & Pike (Daniel K. Converse, of counsel), for defendant.
*237 Before: LESINSKI, C.J., and BRONSON and ENGEL,[*] JJ.
ENGEL, J.
This is an appeal from a summary judgment in favor of defendant in a action for declaratory judgment construing an automobile insurance contract and the effect of MCLA § 500.3010 (Stat Ann 1970 Cum Supp § 24.13010).
The facts were agreed to by the parties. Plaintiffs had an autmobile insurance policy with defendant for a term beginning September 25, 1965 and ending September 25, 1966. The constituent parts of that policy were (1) defendant's form #U-142-1-1-65 entitled "Combination Automobile Policy", and (2) the "Declaration Certificate". The policy form contained the following language:
"Declaration Certificate: This policy form together with the Declaration Certificate constitutes the complete policy. This insurance is against only such and so many of the perils named in the Declaration Certificate as are indicated by a specific premium entry. The limit of the Exchange's liability against each of such perils shall be as stated in the Declaration Certificate and subject to the terms of this policy form."
A further provision of the policy in describing a replacement automobile provided that:
"(g) ``replacement automobile' means an automobile or trailer, ownership of which is acquired after the effective date of this policy by the named insured who is the owner of the described automobile, provided it replaces the described automobile or trailer and notice of its acquisition is given the exchange within 30 days of the date of its delivery to such named insured and such named insured agrees to pay *238 any premium or adjustment of premium applicable with respect to such automobile."
The Declaration Certificate showed the insured vehicle to be a 1958 Buick and indicated that the coverage extended was bodily injury liability and property damage liability.
MCLA § 500.3010 (Stat Ann 1970 Cum Supp § 24.13010) became effective on January 1, 1966, and, in part, requires motor vehicle liability insurers to provide uninsured-motorist coverage unless the named insured rejects such coverage in writing as provided in the act. The pertinent portion of that statute, § 3010, provides that:
"No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death * * * shall be delivered or issued for delivery in this state * * * unless coverage is provided therein or supplemental thereto * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * unless the named insured rejects such coverage in writing as provided herein. All such policies shall contain a notice, displayed prominently on the front page of the policy, in at least 8-point type that such protection coverage was explained to him and that he can reject such coverage by notice in writing. Unless the named insured requests such coverage in writing, it need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer."
On or about February 1, 1966, defendant began using a new form #U-142-2-1-66 entitled "Combination Automobile Policy". This form contained *239 notice about the uninsured-motorist coverage required by MCLA § 500.3010.
In June 1966, plaintiffs sold the 1958 Buick insured by the defendant and purchased a 1962 Buick. Plaintiffs applied to the defendant insurance company to have their insurance transferred to the 1962 Buick and to obtain additional coverage. Defendant issued and mailed to plaintiffs a document entitled "Automobile Policy Endorsement". This endorsement recited the following additional coverage:
"Medical Payments Coverage Added Full Comprehensive Coverage Added Collision Coverage Added/Policy Expires 9-25-66/Car Description Changed."
It was conceded by the parties for the purposes of appeal that the new policy form #U-142-2-1-66 and the "Automobile Policy Endorsement" were mailed to the plaintiffs. Moreover, for purposes of appeal, plaintiffs further concede that they were never offered uninsured motorist coverage, never rejected such coverage in writing, nor thought that they had uninsured-motorist coverage.
On August 29, 1966, plaintiffs were injured when their 1962 Buick collided with another automobile in Indiana, for which it is conceded there was no liability coverage and for which no recovery is available under the Motor Vehicle Accident Claims Act, MCLA § 257.1101 et seq., as amended (Stat Ann 1968 Rev § 9.2801 et seq., as amended). The plaintiffs then brought this action for declaratory judgment, asking for a judgment that plaintiffs had uninsured-motorist coverage through the defendant insurance company. The trial court ruled that plaintiffs did not have such coverage.
The general rule is that where there is an ambiguity in an insurance policy, it should be construed *240 against the insurer and in favor of the insured. Lintern v. Zentz (1950), 327 Mich 595, 600; Federal Mutual Insurance Co. v. Casey (1969), 16 Mich App 214, 215. However, no ambiguity exists here. An examination of the "Automobile Policy Endorsement" together with the stipulated facts is convincing that the parties intended an amendment of the existing insurance policy of September 25, 1965, and that the policy coverage was to be amended only to the extent indicated on the endorsement. The original policy form #U-142-1-1-65, quoted above in part, clearly indicates that the Declaration Certificate was intended to control the extent of coverage, and the subsequent Automobile Policy Endorsement merely added more coverage. Neither the Declaration Certificate nor the subsequent endorsement indicated a specific premium entry for uninsured-motorist coverage. Therefore, the plaintiffs did not have such coverage unless MCLA § 500.3010 (Stat Ann 1970 Cum Supp § 24.13010) is read to compel its inclusion as a matter of law where there is no written rejection of such coverage in a subsequent amendment to a policy in existence prior to the effective date of the statute. While we do not believe that the statute should be so read, to the extent that it can, we concur in the trial judge's conclusion that such a reading would be inconsistent with Const 1963, Art 1, § 10:
"No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted."
The plaintiffs rely heavily upon the fact that a copy of the defendant's new form #U-142-2-1-66 was delivered with the Automobile Policy Endorsement subsequent to the effective date of MCLA § 500.3010. It is argued that the defendant voluntarily *241 brought itself within the new act and that an entirely new contract of insurance was agreed upon.
Alternately, the plaintiffs argue that by the inclusion of the 1966 revised form, the defendant insurer brought itself within the meaning of the uninsured-motorist statute in that it "delivered or issued for delivery in this state" a policy of automobile insurance after the effective date of the act. In either event, it is argued that the plaintiffs acquired the uninsured-motorist coverage because that provision then became a part of the contract, and therefore, it was controlling in the absence of written refusal of such coverage. We disagree.
We do not know why the 1966 form was included with the new endorsement. Certainly, it could not have impaired the contract rights of the insureds which had already been paid for in 1965. Neither do we conclude that it could have been intended to impair the same rights of the insurer except to the extent to which it specifically agreed. In extending the insurance coverage to the new automobile, the insurance company was merely providing the insureds with that which it had already bound itself to provide under the quoted section of the policy with respect to replacement automobiles. If the insureds paid the additional premium, the insurance company was legally obligated to provide coverage for a replacement automobile. This accounts for the endorsement. While § 19 of the general conditions and conclusions of the 1965 contract obligated the defendant to provide broader coverage where a revised policy form so provided, still this was specifically conditioned upon the fact that such coverage was provided without additional premium. Very clearly uninsured-motorist coverage called for an additional premium, and there could be no mistake between the parties as to this fact. Since the uninsured-motorist *242 coverage under the new policy was not available without additional premium charge, that coverage did not become a part of the 1965 contract.
Affirmed.
All concurred.
[*] Circuit judge, sitting on the Court of Appeals by assignment.