Blakeslee v. Farm Bureau Mut. Ins. Co., Docket No. 9569

• Decision Date: 29 March 1971
• Docket Number: No. 2,Docket No. 9569,2
• Citation: 32 Mich.App. 115,188 N.W.2d 216
• Parties: Helen BLAKESLEE, Administratrix of the Estate of Jerome Blakeslee, Deceased, Plaintiff-Appellee, v. FARM BUREAU MUTUAL INSURANCE COMPANY of Michigan, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 216

188 N.W.2d 216

32 Mich.App. 115

Helen BLAKESLEE, Administratrix of the Estate of Jerome

Blakeslee, Deceased, Plaintiff-Appellee, v. FARM BUREAU MUTUAL INSURANCE COMPANY of Michigan, Defendant-Appellant.

Docket No. 9569.

Court of Appeals of Michigan, Division No. 2.

March 29, 1971.

Rehearing Denied May 19, 1971.

Released for Publication July 7, 1971.

Russell E. Bowers, Gault, Davison & Bowers, Flint, for defendant-appellant.

Peter L. Scheid, Owosso, for plaintiff-appellee.

Before McGREGOR, P.J., and T. M. BURNS and ANDREWS, ^* JJ.

T. M. BURNS, Judge.

On August 27, 1966, Jerome Blakeslee was riding in an automobile owned and operated by Bernard Butcher. A collision occurred between the Butcher automobile and one owned by Norma Jean Buys and operated by Carl Rhinebolt. Jerome Blakeslee sustained fatal injuries in the automobile collision.

Neither the owner nor the operator of the Buys' automobile was insured. The Butcher automobile and its operator had liability insurance coverage in effect at the time of the accident. The policy, issued by the Riverside Insurance Company, provided for uninsured motorist coverage benefits of $10,000 payable for injuries or death to one person and of $20,000 payable on account of injuries or death to more than one person in a single accident.

The decedent had in effect at the time of the fatal accident a policy of automobile insurance issued by the defendant which also contained uninsured motorist coverage which provided for the same dollar amount of benefits as did the Riverside Insurance Company policy and was subject to benefits for injuries or death sustained by Jerome Blakeslee while riding as a passenger in an automobile owned and operated by another person.

Helen Blakeslee, in her capacity as the administratrix of the decedent's estate, instituted a suit against Carl Rhinebolt, the driver of the uninsured automobile, to recover damages resulting from the alleged wrongful death of Jerome Blakeslee. She recovered on her suit in the amount of $112,007.71 with a reduction upon the judgment in the amount of $18,300 as monies received by the administratrix under the Reiverside Insurance Company policy and from the Michigan Motor Vehicle Accident Claims Fund. The net judgment against Rhinebolt was, therefore, $93,707.71. ¹

Subsequent to the judgment against Rhinebolt, plaintiff brought suit against defendant seeking recovery of the $10,000 uninsured motorist covereage provided for in the policy defendant issued to the decedent. The cause was submitted to the court upon stipulated facts and judgment was entered in favor of plaintiff for the full $10,000 of the policy coverage. From the judgment entered by the trial court, the defendant appeals as of right.

Defendant denied liability based upon an 'other insurance' provision contained in the policy which provides:

'Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.

'Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.' (Page 11 of the Appellant's policy, Appellant's Appendix, Page 32).

Defendant cites Horr v. Detroit Automobile Inter-Insurnace Exchange (1967), 379 Mich. 562, 153 N.W.2d 655, in which our Supreme Court interpreted similar 'other insurance' clauses. In that case the court held that the 'other insurance' clauses in two separate policies of insurance required Pro-rata contribution by the two insurance companies, but only until a total of $10,000, the maximum coverage contained in each policy, had been paid to the claimant. In other words each insurance company could be held liable for $5,000, no matter how large the claimant's damages were.

The Horr decision is distinguishable from the case at bar, however, because the accident which gave rise to the controversy in Horr occurred in 1963. On January 1, 1966, the uninsured motorist coverage provision of the insurance code went into effect. ²

'No automobile liability or motor vehicle policy * * * shall be delivered or issued * * * in this state * * * unless coverage is provided therein * * * in limits for bodily injury or death set forth in Section 504 of Act No. 300 of the Public Acts of 1949, as amended, being Section 257.504 of the Compiled Laws of 1948 * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured...