Weisberg v. Detroit Automobile Inter-Insurance Exchange

O’Hara, J.

Morrey Weisberg, ¹ in his lifetime, was the owner of an automobile insured with defendant insurance company. He was a passenger in his own automobile which was being permissibly operated by one Bunney LaCourt. She drove it into a utility pole. As a result he sustained injuries.

At the time of the collision, Morrey had a policy of insurance including both public liability and “uninsured motorists” coverage. He filed a claim with the company under both. The company denied both. He also asserted a claim against the Motor Vehicle Accident Claims Fund claiming that if denial of the coverage by the Exchange was valid, then he had redress against the fund because Miss LaCourt was, in that event, an uninsured motorist. The claim was rejected by the Secretary of State, as director of the fund. The action on his policy and against the fund were consolidated and formed the basis for his suit for a declaratory judgment. The trial court denied his motion for a summary judgment and entered judgment for the company and the fund, relieving them from liability. He appeals of right.

We consider first his claim under his liability coverage. It was denied by the Exchange because of “Exclusion (a)” which provided that the policy did not apply “to bodily injury to any named insured or bodily injury or property damage caused intentionally by or at the direction of the insured”.

He argued that the operation of the quoted Exclusion (a) violated the public policy expressed by the Motor Vehicle Accident Claims Act, MCLA § 257.-1101 et seq. (Stat Ann 1968 Rev § 9.2801 et seq.) and § 3010 of the Insurance Code, MCLA § 500.3010 (Stat Ann 1971 Cum Supp § 24.13010). Moreover, he argued that the language of the exclusion drafted by the defendant insurance company was ambiguous and should be construed against it.

The language contained in Exclusion (a) is clear and unambiguous. Liability coverage does not, by its terms, extend to injuries to the named insured. Morrey was a named insured. See Cottrill v. Michigan Hospital Service (1960), 359 Mich 472. The exclusion is inherent in the concept of liability insurance. It contemplates protection of the insured against liability running from the insured to another. See Detroit Automobile Inter-Insurance Exchange v. Bishop (1970), 24 Mich App 90. The claim of ambiguity and need for construction is without merit.

Nor do we find any merit in plaintiff’s claim that this exclusion is contrary to the public policy expressed in the two statutes cited. Both are concerned with the protection of the rights and claims of third parties when the vehicle owner becomes liable to those third parties. The ruling of the trial court that the defendant insurance company is not liable to plaintiff under the liability policy was proper.

Next, plaintiff argues that if he were not protected under the liability insurance clause of the policy, then Miss LaCourt was an uninsured motorist ; hence, the provision providing for recovery for injury caused by an uninsured automobile obtained. The company, in its denial of this claim, relied upon the definition found in “Definition (d) (1)”, of its uninsured motorists coverage, which provides:

“ ‘uninsured automobile’ means (1) a motor vehicle with respect to the ownership, maintenance or use of which there is, with respect to Part (1), no bodily injury liability insurance policy or bond, or, with respect to Part (2), no property damage liability insurance policy or bond, applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, and

and upon “Definition (e) (1)” which provides:

“an uninsured automobile shall not include (1) a motor vehicle owned by the insured or any resident of the same household.”

Courts can rarely expect to find language more clear in its meaning and application. Uninsured motorists coverage extends only to injuries sustained by plaintiff from an “uninsured automobile”. An uninsured automobile, for the purpose of the policy, does not include a motor vehicle owned by the insured. Morrey owned the offending vehicle. Plaintiff, clearly, may not recover under the uninsured motorists coverage of his policy, because of the terms of his contract.

Plaintiff argues that such result is anomalous. Anomalous, or not, the. fact that plaintiff is not covered under the liability clause of his policy and, at the same time, may not recover under his uninsured motorists coverage does not empower us to rewrite the contract.

There is available insurance, covering his own car, which plaintiff’s decedent elected not to purchase. Parties have the right to contract as to the terms of an insurance policy and so long as the terms do not contravene statutory requirements of public policy, the courts will enforce an insurance contract as it would any other contract. Burch v. Wargo (1966), 378 Mich 200; Eghotz v. Creech (1962), 365 Mich 527.

Finally, plaintiff argued that if he is unable to recover from his insurance company under either theory, then he should be permitted to recover from the Fund under MCLA § 257.1106 (Stat Ann 1971 Cum Supp § 9.2806), which provides for recovery for personal injury to any person which is occasioned in this state by an uninsured motor vehicle.

The Motor Vehicle Accident Claims Act, MCLA § 257.1102 (d) (Stat Ann 1968 Rev §9.2802[d], defines uninsured motor vehicles as follows:

“ ‘Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of the motor vehicle responsibility law of this state * # # and which is not owned by a holder of self-insurance under the law.”

It is clear, as the trial court found, that the liability insurance policy issued by the defendant insurance company was a liability policy as contemplated by this subsection. Plaintiff’s automobile was therefore not an uninsured motor vehicle within the meaning of the Motor Vehicle Accident'Claims Act.

It is plaintiff’s claim that inasmuch as he is barred from recovery under the terms of the liability policy then it cannot be said that the policy was “in force”. There was a liability insurance policy. The policy was in force. This much is undeniable. It was not, however, in force as to this plaintiff. The question therefore becomes, “Does the fact that an exclusion bars this plaintiff’s recovery vitiate the policy for the purpose of compliance with the Motor Vehicle Accident Claims Act?”

Logically, the answer must be found in the object of the statute. Constitutionally, its object must-be expressed by its title (Const 1963, art 4, § 24). We examine it.

“An Act providing for the establishment * * # of a motor vehicle accident claims fund for the payment of damages * * * to * # * certain persons * * * in certain cases.” (Emphasis supplied.)

This is a far cry from a legislative action creating a fund for the payment of damages to all persons in all cases resulting from any injury not otherwise compensable or collectible. If such were the legislative object, that object could have been very easily legislatively expressed. To reason from the premise that since there is an injured claimant who cannot recover against the offending owner or operator of a motor vehicle the fund must of necessity be liable, is impermissible. To do so, requires us to make an assumption that is not suggested to us in the statute, let alone expressly stated.

We do not read the Motor Vehicle Accident Claims Act as creating a substitute for personal accident insurance, making injury and damage compensable merely by reason of the happening of an accident, the damage from which is otherwise uncollectible or uncompensable.

Plaintiff’s able counsel argues with vigor and persuasively that we should reach the contrary conclusion. We think to do so we would have to legislate judicially in violation of the constitutional separation of governmental powers.

If the Legislature had desired to provide access to the fund for any plaintiff who, for any reason, found himself unable to recover from an insurance company, we believe that it could have done so by specific statutory language. The Legislature has limited recovery to a specific class of plaintiffs, clearly defined by statute, and not including the plaintiff herein. Control over membership in the class of parties entitled to recovery being vested in a coordinate branch of government, we are not at liberty to revise and modify these definitions under the guise of “interpretation”.

We are urged by the Attorney General to extend our holding to deny recovery to the owner of an uninsured automobile injured while a passenger therein on that ground itself. Because this case is of first impression, because of the importance of the holding in future cases, and because of the possibility of further review by the Supreme Court, we will commit ourselves decisionally.

As noted by the Attorney General in his brief:

“It is important to keep in mind that plaintiff seeks to recover against the fund for personal injuries sustained when a passenger in his own automobile, negligently being driven by another with his full knowledge, consent and authorization.”

Analysis of § 6 of the act imparts to ns that the Legislature never intended to authorize a monetary recovery by an owner of an uninsured motor vehicle for damages caused by that same vehicle, since under § 6(5) the secretary is required — in every case— to suspend the license and registration of such owner until the monies received from the fund are repaid or arrangements therefor are made. It is a logical contradiction that a claimant could first receive payment from the fund and then have his license and registration suspended until he repays the fund.

The interpretation which would allow an injured owner-occupant to recover against a fund of the same nature as ours has been passed upon in other jurisdictions.

The courts of our “friendly neighbor to the north” (which, in Detroit, is to the south)² have considered the question at least to the extent of property damage.

“The problem is whether recovery can be had from the unsatisfied judgment fund where the property damaged is the very motor vehicle which it is alleged occasioned the damage.

“In my opinion, the meaning to be attached to the word ‘property’ in the section of the Highway Traffic Act in question is not broad enough to include the motor vehicle ydiich it is alleged occasioned the damage, and therefore the application will be dismissed with costs.” Smith v. Padfield (1950), OWN 371, aff’d (1950), OWN 482, 3 DLR 512.

In Re Donaldson v. Arno (1959), OWN 363, the Ontario High Court of Justice again considered the question of the right of an owner of a vehicle to recover from the Ontario fund for damage to his own vehicle and rejected it.

It is but a short step from this judicial interpretation by the jurisdiction from which we, in large part, adopted our act, to the conclusion that the same reasoning applies in the case of one claiming against our fund for damages resulting from personal injury sustained by him while a passenger in his own vehicle driven by one who has the owner’s consent to do so.

We here hold that recovery under these circumstances is repugnant to and inconsistent with the clear legislative intent as expressed in our statute. The owner-passenger may not recover from the fund.

For the reasons herein discussed and stated, the declaratory judgment entered by the trial court is affirmed. No costs, a public question.

ADDENDUM

. Since the submission of this case, a decision by another panel of this Court has been released which deals with the same general issue. Our holding here, however, should be carefully distinguished from that case: Allstate Insurance Company v. Motor State Insurance Company (1971), 33 Mich App 469.

In Allstate the insured was the registered co-owner of the alleg’ed offending vehicle, but his operator’s license had previously been suspended. To register the vehicle, the insured was required to furnish proof of financial responsibility. The policy issued contained this proviso:

“When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law such insurance as is afforded for bodily injury or property damage liability by this policy shall comply with the provisions of such law to the extent of the coverage -and limits of liability required by such law.”

In the instant case the foregoing proviso does not apply.

Bronson, J., concurred in opinion and addendum.

1 Sometime subsequent to collision, Morrey Weisberg died from an unrelated cause. The administrator of his estate succeeded him as plaintiff. For purposes of clarity, we will refer to the original plaintiff as Morrey. The fact of the substitution of parties is immaterial.

2 A geographical fact difficult of comprehension for one who came originally from the Upper Peninsula.