Auto Club Ins. Ass'n v. Lanyon, Docket No. 76580

• Decision Date: 19 June 1985
• Docket Number: Docket No. 76580
• Citation: 369 N.W.2d 269,142 Mich.App. 108
• Parties: AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant, Cross-Appellee, v. Brian LANYON, Individually and as next friend of Connie Marlynn Lanyon, Defendants-Appellees Cross-Appellants, and Carole L. Gerstenberger and Clayton T. Gerstenberger, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 269

369 N.W.2d 269

142 Mich.App. 108

AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant, Cross-Appellee, v. Brian LANYON, Individually and as next friend of Connie

Marlynn Lanyon, Defendants-Appellees Cross-Appellants,

and

Carole L. Gerstenberger and Clayton T. Gerstenberger, Defendants.

Docket No. 76580.

Court of Appeals of Michigan.

Submitted Dec. 5, 1984.

Decided April 16, 1985.

Released for Publication June 19, 1985.

Gromek, Bendure & Thomas by Nancy L. Bosh, Detroit, for plaintiff-appellant, cross-appellee.

McIntosh, McColl, Allen, Carson, McNamee & Strickler by Robert W. Carson, Port Huron, for defendant-appellee cross-appellant Lanyon.

Before DANHOF, C.J., and T.M. BURNS and BELL, ^* JJ.

PER CURIAM.

This appeal arises out of a declaratory action initiated by the Auto Club Insurance Association (ACIA) 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 N.W.2d 19 (1978). We find that Fletcher is distinguishable, as noted by the Supreme Court on review of that case:

"Bradley [v. Mid-Century Ins. Co., 78 Mich.App. 67, 259 N.W.2d 378 (1977) ], Hickman [v. Community Service Ins. Co., 78 Mich.App. 1, 259 N.W.2d 367 (1977) ], Ellis [v. State Farm Ins. Co., 78 Mich.App. 189, 259 N.W.2d 421 (1977) ] Ruesing [v. Aetna Casualty & Surety Co. (unpublished opinion) ] 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 [v. State Farm Mutual Automobile Ins. Co. (unpublished opinion) ], [American Fidelity Fire Ins. Corp. v.] Williams [80 Mich.App. 125, 263 N.W.2d 311 (1977) ], and Schigur [v. West Bend Mutual Ins. Co., 80 Mich.App. 640, 264 N.W.2d 83 (1978) ] 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 N.W.2d 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 N.W.2d 184 (1982), is also distinguishable. See Miller v. DAIIE, 129 Mich.App. 382, 341 N.W.2d 155 (1983); Deyarmond v. Community Service Ins. Co., 132 Mich.App. 191, 347 N.W.2d 201 (1984), lv. to appeal held in abeyance pending the Supreme Court's decision in DAIIE v. Widling, 114 Mich.App. 6, 318 N.W.2d 551 (1982), lv. granted 417 Mich. 1037 (1983). Unpublished order of Supreme Court, July 30, 1984. 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...