Auto Owners Ins. Co. v. Ellegood

• Decision Date: 20 May 1986
• Docket Number: Docket No. 83722
• Citation: Auto Owners Ins. Co. v. Ellegood, 386 N.W.2d 640, 149 Mich.App. 673 (Mich. App. 1986)
• Parties: AUTO OWNERS INSURANCE COMPANY, Plaintiff-Appellee, v. Gerald Wayne ELLEGOOD, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 640

386 N.W.2d 640

149 Mich.App. 673

AUTO OWNERS INSURANCE COMPANY, Plaintiff-Appellee, v. Gerald Wayne ELLEGOOD, Defendant-Appellant.

Docket No. 83722.

Court of Appeals of Michigan.

Submitted Jan. 15, 1986.

Decided March 4, 1986.

Released for Publication May 20, 1986.

Joselyn, Rowe, Grinnan, Hayes & Feldman, P.C. by Edward V. Keelean, Detroit, for plaintiff-appellant.

Fred S. Findling, Southfield, for defendant-appellee.

Before HOOD, P.J., and J.H. GILLIS and BATZER, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a circuit court order granting plaintiff's motion for summary judgment pursuant to GCR 1963, 117.2(3).

On June 30, 1983, the defendant was injured by an unknown hit-and-run driver while riding his uninsured motorcycle. On December 12, 1983, defendant filed a demand for arbitration with the American Arbitration Association against plaintiff, claiming entitlement to uninsured motorist benefits under a policy of insurance issued by plaintiff to defendant's father.

Plaintiff responded to the demand for arbitration by filing an action for declaratory judgment in the circuit court on September 12, 1984, requesting a declaration that defendant was not covered under his father's policy and thus not entitled to uninsured motorist benefits. Defendant filed a motion for summary judgment, contending that a motorcycle is not a "motor vehicle" under the no-fault act and thus the owned motor vehicle exclusion of his father's policy did not apply. Plaintiff responded with its own affirmative request for summary judgment based upon the argument that defendant was riding on a motor vehicle which he personally owned at the time of the accident, thereby bringing into application the owned motor vehicle exclusion contained in the policy. By an order dated February 26, 1985, the trial court ruled in favor of plaintiff and thus granted its request for a stay of the arbitration proceedings.

The issue presented in this appeal centers on the following provisions contained in the insurance policy issued to defendant's father, by which plaintiff agreed:

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, and arising out of the ownership, maintenance or use of such uninsured motor vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount there, shall be made by agreement between the insured or such representative and the Company or, if they fail to agree, by arbitration.

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"This coverage shall not apply:

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"(e) to bodily injury to an insured sustained while in, upon, entering or alighting from any motor vehicle owned by the named insured, spouse or a relative of either who is a resident of the same household unless a premium charge for this coverage is shown in the Declarations for such vehicle." (Emphasis supplied.)

More specifically, the question we must decide is whether a motorcycle is a "motor vehicle", as that term is used in the plaintiff's insurance policy.

Defendant argues that because the term "motor vehicle" is not defined in the insurance policy, an ambiguity exists which should be construed in favor of the insured. Defendant also points to a section of the no-fault act which defines "motor vehicle" as specifically excluding motorcycles. M.C.L. § 500.3101(2)(a); M.S.A. § 24.13101(2)(a).

Conversely, plaintiff contends that the absence of a definition in the insurance contract does not create an ambiguity because the construction of the term "motor vehicle" in its ordinary and popular sense clearly encompasses a motorcycle. Plaintiff also counters defendant's reliance on the no-fault act by citing § 33 of the Michigan Vehicle Code, which defines a motor vehicle, in part, as "every vehicle which is self propelled * * * ". M.C.L. § 257.33; M.S.A. § 9.1833.

In resolving this issue, we are guided by the following rules of construction, as set out in State Farm Mutual Automobile Ins. Co. v. Ruuska, 90 Mich.App. 767, 777, 282 N.W.2d 472 (1979):

"Insurance policies must be construed in accord with the ordinary and popular sense of the language used therein. Michigan Mutual Liability Co v Mesner, 2 Mich App 350, 353; 139 NW2d 913 (1966). Insurance policies drafted by the insurer must also be construed in favor of the insured to uphold coverage. Shepard Marine Construction Co v. Maryland Casualty Co, 73 Mich App 62, 64; 250 NW2d 541 (1976). This same rule applies to exclusion provisions in the policy. Kalamazoo Aviation, Inc v Royal Globe Ins Co, 70 Mich App 267, 270; 245 NW2d 754 (1976) To be given full effect, an insurer has a duty to clearly express the limitations in its policy. Francis v Scheper, 326 Mich 441, 447-448; 40 NW2d 214 (1949), Union Investment Co v Fidelity & Deposit Co of...