Belcher v. Aetna Cas. & Sur. Co.

• Decision Date: 09 May 1978
• Docket Number: Docket No. 77-3931
• Citation: 83 Mich.App. 207,268 N.W.2d 349
• Parties: Marie BELCHER, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, a Foreign Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 349

268 N.W.2d 349

83 Mich.App. 207

Marie BELCHER, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, a Foreign Corporation Defendant-Appellee.

Docket No. 77-3931.

Court of Appeals of Michigan.

May 9, 1978.

Rehearing Denied June 19, 1978.

Released for Publication Aug. 1, 1978.

Rosenbaum, Bloom, Kaufman, Appel & Moses by Donald E. Moses, Detroit, for plaintiff-appellant.

Collins & Einhorn by Clayton F. Farrell, Southfield, for defendant-appellee.

Before RILEY, P. J., and T. M. BURNS and CYNAR, JJ.

CYNAR, Judge.

Plaintiff appeals as a matter of right from a summary judgment granted to defendant. The relevant facts are largely undisputed. Stacy Belcher, plaintiff's son, died in a single car accident on August 21, 1976. At the time of the accident, decedent was operating a vehicle owned and registered to himself. Subsequently, it was determined that the deceased's certificate of insurance was a forgery. Plaintiff then filed a claim with the Assigned Claims Facility of the Michigan Secretary of State, pursuant to M.C.L. § 500.3172; M.S.A. § 24.13172. This claim was assigned to defendant. On March 23, 1977, defendant denied plaintiff's claim. On April 15, 1977, plaintiff filed a complaint in Wayne County Circuit Court, alleging that she was entitled to survivor's benefits. On September 23, 1977, defendant's motion for summary judgment was granted on the ground that the plaintiff's claim was derived from that of her son and that his claim was barred by M.C.L. § 500.3113(b); M.S.A. § 24.1311(b).

On appeal it is undisputed that plaintiff's son, had he survived, would not have been entitled to receive personal protection insurance benefits. M.C.L. § 500.3113(b); M.S.A. § 24.13113(b). The only issue to be determined in this case is whether a surviving dependant of one barred from receiving such benefits is barred from receiving survivor's benefits. This issue has not previously been addressed by this Court.

The purpose of Michigan's so-called "No Fault Insurance Act" is to ensure the compensation of persons injured in an automobile accident. Hill v. Aetna Life & Casualty Co., 79 Mich.App. 725, 728, 263 N.W.2d 27 (1977), Pollock v. Frankenmuth Mutual Ins. Co., 79 Mich.App. 218, 222, 261 N.W.2d 554 (1977), O'Donnell v. State Farm Mutual Automobile Ins. Co., 70 Mich.App. 487, 495, 245 N.W.2d 801 (1976). Toward this end, the act requires the owner or registrant of a motor vehicle to maintain security, usually in the form of insurance, for payment of benefits of personal protection insurance, M.C.L. § 500.3101(1); M.S.A. § 24.13101(1). The operation of a vehicle which is not so insured constitutes a misdemeanor as to its owner, punishable by fine and/or imprisonment. M.C.L. § 500.3102(2); M.S.A. § 24.13102(2).

In addition to the possible criminal charge, the owner of a vehicle which is not insured is not entitled to recover personal protection insurance benefits. M.C.L.A. § 500.3113(b); M.S.A. § 24.13113(b). This statute reads in full:

"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:

"(a) The person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.

"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsection (3) and (4) of section 3101 was not in effect.

"(c) The person was not a resident of this state, was an occupant of a motor vehicle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163."

It is this statute which would have prevented plaintiff's son from recovering personal protection insurance benefits, had he survived.

Plaintiff contends, however, that, as a surviving dependant, she is nonetheless entitled to benefits under the no-fault act. She notes that surviving dependants are not excluded from receiving personal protection insurance benefits under M.C.L. § 500.3113; M.S.A. § 24.13113 and relies upon M.C.L. § 500.3108; M.S.A. § 24.13108 and M.C.L. § 500.3172; M.S.A. § 24.13172 in support of her right to recovery. M.C.L. § 500.3108; M.S.A. § 24.13108 provides for the payment of personal protection insurance benefits for a surviving dependant's loss in a situation where a person has died. ¹ M.C.L § 500.3172; M.S.A. § 24.13172 permits one to obtain personal protection insurance benefits through an assigned claims plan, where no personal protection insurance is applicable to the injury. ²

Although the statutory language is hardly clear, we hold that plaintiff is not entitled to recover personal protection insurance benefits. This is because her right to recover is dependant upon or derivative of her son's rights to personal protection benefits. ³ Since he could not have recovered such benefits, neither can she.

The language of various sections of the no-fault act is supportive of this conclusion. M.C.L. § 500.3112; M.S.A. § 24.13112 commences by stating:

"Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependants * * *."

This language indicates that the payment of such benefits to the surviving dependants where the injured person has died is a substitute for the payment of benefits directly to the injured party. Further support for this conclusion can be found by comparing the method of computing survivor's benefits, M.C.L. § 500.3108; M.S.A. § 24.13108, ⁴ with the method for computing the work loss portion of the personal protection benefits available to an injured person, M.C.L. § 500.3107; M.S.A. § 24.13107. ⁵ Both are payable for up to three years and are subject to a $1000 maximum for any 30 day period. Both include the cost of expenses, up to $20 per day, incurred in obtaining services which would have been provided by the injured person. Both provide for the support of the injured person's dependants. Survivor's benefits do so directly, by paying the dependant survivor that amount which the deceased would have provided for support. In the case of work-loss benefits, the injured party is provided with benefits consisting of lost income and part of that amount is, presumably, used for the support of dependants. In addition, the express language of M.C.L. § 500.3107(b); M.S.A. § 24.13107(b) excludes from work loss any loss incurred after the date on which the injured person dies. Thus, there can be no simultaneous recovery for survivor's benefits and work-loss benefits.

Since survivor's benefits are intended as a substitute for the work-loss portion of personal protection benefits, a dependant survivor's right to benefits must necessarily depend upon the right of the injured person to receive work-loss benefits had he survived. Here, however, the deceased would have been barred from claiming any personal protection benefits. Thus, his surviving dependant is also barred.

Such a conclusion makes good sense as well. There is no logical reason to provide benefits to the surviving dependants of an uninsured deceased when no such benefits are available to the dependants of an uninsured individual who survives. Indeed, due to continuing medical expenses, the dependant in the latter situation may have a greater need for such benefits. This court will not construe a statutory scheme so as to provide an unreasonable and irrational result. Collins v. Secretary of State, 384 Mich. 656, 666, 187 N.W.2d 423 (1971). Thus, this Court is unwilling to interpret the provisions of the no-fault act in such a way as to grant plaintiff a benefit when she would not be entitled to benefits had her son survived.

Since plaintiff's right to survivor's benefits is dependant upon her son's rights to benefits had he survived, the language of M.C.L. § 500.3113(b); M.S.A. § 24.13113(b) that would have barred her son from recovery bars her as well. The doctrine of expressio unius est exclusio alterius, Valenti Homes Inc. v. City of Sterling Heights, 61 Mich.App. 537, 233 N.W.2d 72 (1975), is thus inapplicable, since plaintiff's action is, in effect, barred by the express language of the statute. It would have been repetitious to provide an additional subsection to M.C.L. § 500.3113; M.S.A. § 24.13113, barring the survivors of an uninsured deceased from recovery, when such persons are necessarily barred by the language of subsection (b).

Nor can plaintiff find support for her position in the language of M.C.L. § 500.3172; M.S.A. § 24.13172, which provides for claims against the Assigned Claims Facility. That statute is limited to persons "entitled to claim". As noted above, plaintiff is not so entitled. Therefore, her argument must fail and summary judgment was properly granted in this case.

Affirmed. No costs, a public question being involved.

T. M. BURNS, Judge, dissenting.

I agree that the issue raised in this appeal is one of first impression, and that the statutory language is not as clear as it could have been. However, my reading of the entire statute convinces me that it was not the Legislative intent to prevent persons such as plaintiff in this case from recovering and I, therefore, dissent.

Under § 3105 ¹ of the act, an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation or use of a motor vehicle as a motor vehicle "subject to the provisions of this chapter". Section 3105(3) makes it clear that bodily injury includes death.

Because the injury resulted in death in this case, plaintiff is claiming survivor's loss benefits under § 3108. ² Although the statutory measure of this loss is essentially the same as if the decedent had lived and was claiming benefits in his own name, I cannot conclude from that fact, as does the majority, that the survivor's claim can be called...