Harvey v. Aetna Life Ins. Co., Docket No. 25593

• Citation: 72 Mich.App. 285,252 N.W.2d 471
• Decision Date: 10 November 1976
• Docket Number: No. 1,Docket No. 25593,1
• Parties: Mary Lou HARVEY, Plaintiff-Appellant, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellee
• Court: Court of Appeal of Michigan (US)

Page 471

252 N.W.2d 471

72 Mich.App. 285

Mary Lou HARVEY, Plaintiff-Appellant, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellee.

Docket No. 25593.

Court of Appeals of Michigan, Division No. 1.

Nov. 10, 1976.

Released for Publication Feb. 14, 1977.

Clifford P. Williams, Detroit, for plaintiff-appellant.

Dickinson, Wright, McKean, Cudlip & Moon, by Kenneth J. McIntyre, Detroit, for defendant-appellee.

Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.

PER CURIAM.

This is an appeal of a summary judgment granted to the appellee in a declaratory judgment action seeking a determination that a certain provision of an insurance policy issued by the appellee was unconstitutional.

The appellant is the widow of Ollie Lee Harvey. At the time of Mr. Harvey's death the couple had been married approximately six months.

Mr. Harvey had been employed by the Chrysler Corporation. He was insured under a group life insurance policy issued by the appellee to Chrysler Corporation. The terms and conditions of the group policy were determined by collective bargaining negotiations between the U.A.W. and Chrysler Corporation.

After Mr. Harvey's death the appellant filed a claim for $11,500 in life insurance benefits and for certain survivor income benefits under the policy. The appellee paid the life insurance benefits, but refused to pay the survivor income benefits because the insurance policy required the survivor be "legally married to the deceased employee for at least one year immediately prior to the employee's death * * * ".

The appellant brought an action for declaratory judgment, GCR 1963, 521, seeking a determination that the provision of the insurance policy was unconstitutional as violative of due process and equal protection of the law. Appellee moved for summary judgment grounded on GCR 1963, 117.2(1), arguing that the appellant failed to allege state action. The trial judge granted the appellee's motion, and appellant seeks review.

A motion for summary judgment brought under GCR 1963, 117.2(1), merely tests the legal sufficiency of the claim as determined from the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 349, 214 N.W.2d 733 (1974), lv. den., 391 Mich. 816 (1974), 1 Honigman & Hawkins (2d ed.), Michigan Court Rules Annotated Committee Notes to GCR 1963, 117, pp. 353, 355. For the purposes of that motion, both at the trial and appellate levels, every well pled allegation in the complaint is assumed to be true. Bielski v. Wolverine Insurance Co., 379 Mich. 280, 283, 150 N.W.2d 788 (1967). The test is whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App....