Bielski v. Wolverine Ins. Co.
| Decision Date | 06 June 1967 |
| Docket Number | No. 12,12 |
| Citation | 379 Mich. 280,150 N.W.2d 788 |
| Parties | Donald C. BIELSKI, Plaintiff and Appellee v. WOLVERINE INSURANCE COMPANY, a Michigan Corporation, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Van Benschoten & Van Benschoten, by Duane S. Van Benschoten, Saginaw, for plaintiff-appellee.
Stanton & Davidson, Saginaw, John Davidson, Saginaw, of counsel, for defendant-appellant.
Before the Entire Bench, except KAVANAGH, J.
This is defendant's appeal, on leave granted, from Court of Appeals reversal 1 of a summary judgment entered on the pleadings in circuit court in defendant's favor in plaintiff's suit on the uninsured motorist provisions of an automobile insurance policy issued by defendant to plaintiff.
Defendant's motion for summary judgment was filed December 19, 1963. It was governed by GCR 1963, 117, which permits such motion to be based, as it was here, on the ground that plaintiff's complaint failed to state a claim upon which relief can be granted. For the purpose of that motion, both at the trial and appellate levels, every well-pleaded allegation in the complaint is assumed to be true. Hiers v. Brownell, Detroit Superintendent of Schools, 376 Mich. 225, 136 N.W.2d 10. So considered, we find the following to be facts pleaded by plaintiff:
Plaintiff was injured on June 24, 1960, in an automobile collision between his automobile and an uninsured automobile which was then and there being operated negligently by the owner.
The policy issued by defendant to plaintiff contained, inter alia, a promise to pay in these terms:
'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 automobile because of bodily injury, sickness or disease, including death resulting therefrom, * * * sustained by the insured, * * * and arising out of the * * * use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.'
It was also provided that:
and
'EXCLUSIONS
'This endorsement does not apply: (a) to bodily injury to an insured, * * * with respect to which such insured, * * * shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person * * * who may be legally liable therefor.'
In Plaintiff's complaint it is further alleged that on June 24, 1960, date of the accident, plaintiff went to defendant and demanded payment of the amount to which he would be entitled under the policy; that defendant refused to pay; that plaintiff then, on that day, demanded that defendant arbitrate pursuant to the arbitration provisions of the policy and defendant refused, contending that there was no liability to plaintiff on the part of the uninsured motorist and, hence, none on defendant's part; that thereafter plaintiff did on numerous occasions demand that the matter be submitted to arbitration and defendant continually refused to enter into arbitration or to take any steps for arbitration or to cooperate with plaintiff so that arbitration could be had; that in February of 1961 plaintiff retained counsel and commenced suit against the uninsured motorist and immediately notified defendant thereof; that defendant advised plaintiff that it would take no part in said lawsuit; that plaintiff's attorney thereafter, on July 10, 1961, wrote a letter to defendant offering to arbitrate pursuant to terms of the policy; that defendant refused to take steps to arbitrate as requested or demanded by plaintiff; that on July 28, 1961, plaintiff's attorney again wrote defendant demanding that it do something about arbitrating plaintiff's cause and that it forthwith arbitrate the matter, but defendant did not do so; that on September 11, 1961, plaintiff's attorney wrote defendant stating that he had often written defendant seeking arbitration but that defendant had done nothing about it, so that plaintiff's attorney could only conclude defendant was refusing to arbitrate and that, therefore, he would now proceed with the pending lawsuit against the uninsured motorist, and he sent a copy of the summons and requested defendant to enter an appearance for the uninsured motorist and the letter stated in conclusion that plaintiff would not now arbitrate because defendant had, for so long, in effect, refused to arbitrate; that defendant thereafter refused to defend the uninsured motorist or to enter an appearance for him in the lawsuit; that on October 2, 1961, defendant demanded arbitration; that on October 8, 1962, plaintiff took a default judgment in the case against the uninsured motorist for $10,000; that on November 9, 1962, plaintiff served...
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