Bonney v. Citizens' Mut. Auto. Ins. Co., 73

• Decision Date: 16 May 1952
• Docket Number: No. 73,73
• Citation: 53 N.W.2d 321,333 Mich. 435
• Parties: BONNEY et al. v. CITIZENS' MUT. AUTO. INS. CO.
• Court: Michigan Supreme Court

Page 321

53 N.W.2d 321

333 Mich. 435

BONNEY et al. v. CITIZENS' MUT. AUTO. INS. CO.

No. 73.

Supreme Court of Michigan.

May 16, 1952.

Donald E. Rhodes, Howell, for defendant and appellant.

Messner & LaBine, Houghton, for plaintiffs and appellees.

Before the Entire Bench.

BUSHNELL, Justice.

This is an appeal from a summary judgment against defendant Citizens' Mutual Automobile Insurance Company in favor of plaintiffs Chester Bonney and John P. McGinty in the sum of $500 each. On May 15, 1948, Citizens' Mutual issued a policy to Bonney, which, among other coverage, included the obligation:

'to pay to or for each person who sustains bodily injury, caused by accident and arising out of the use of the automobile classified as 'pleasure and business,' while in or upon, entering or alighting from the automobile while the automobile is used by or with the permission of the named Assured, the reasonable expense of necessary medical, dental, surgical, ambulance, hospital and professional nursing services and, in the event of death resulting from such injury, the reasonable funeral expense, all incurred within one year from the date of accident,' etc.

On January 19, 1949, the automobile covered by the policy was involved in an accident while being used for 'business and pleasure.' Both plaintiffs sustained bodily injuries and each incurred, within one year from the date of the accident, reasonable medical expenses in excess of $500. The accident was promptly reported and proofs of the expenditures were submitted. Citizens' Mutual refused to reimburse the plaintiffs.

At the trial all the allegations of the declaration were admitted, but the insurance company pleaded as an affirmative defense an exclusion clause in the policy which reads:

'17. Company Not Liable This Policy does not apply:

* * *

* * *

'(f) Under coverage for Medical Payments, to bodily injury to or death of any person to or for whom benefits are payable under any workmen's compensation law because of such injury or death.'

The company averred that both plaintiffs, as employees of the conservation department of the State of Michigan, were entitled to the benefits of the workmen's compensation act. Act No. 10, P.A.1912, as amended, C.L.1948, § 411.1 et seq., Stat.Ann. § 17.141 et seq.

In denial of defendant's allegation and in support of their motion for a summary judgment, plaintiffs contend that the circuit court was without jurisdiction to determine whether 'benefits are payable,' that being a matter solely for the consideration of the workmen's compensation commission. The parties stipulated that no application was ever made or is pending for workmen's compensation, and that no determination was ever made by the commission as to whether plaintiffs were entitled to benefits under the compensation law.

The trial judge, in summarily assessing damages, stated:

'I am of the opinion that were I to sustain the only affirmative defense alleging that plaintiffs are excluded under the insurance policy of the defendant and have no coverage because they come under the provisions of the workmen's compensation act, I would be invading the sole jurisdiction of the workmen's compensation commission. * * * The court finds that it has no jurisdiction on this phase of the case and that there is no merit in defendant's contentions.'

Defendant argues that the exclusion clause in the insurance contract means that:

'Anyone who is eligible for benefits under any workmen's compensation law is intended to be excluded from participation in benefits under the Medical Payments coverage. Nowhere does this contract require the beneficiary, in order to be excluded, to actually receive payments, but merely that benefits must be payable.'

Plaintiffs contend that:

'this clause has to mean 'benefits are payable under the Michigan Compensation Law when an award to that effect has been made and becomes final and enforceable under the provisions thereof'.'

An ambiguous contract must be construed against the party who prepared it. D. F. Broderick, Inc., v. Continental Credit Corporation, 309 Mich. 546, 555 16 N.W.2d 68, and Allor v. Dubay, 317 Mich. 281, 26 N.W.2d 772. However, we find no ambiguity in the language of the exclusion clause. Under plaintiffs' theory, we would be required, on the other hand, to read into the insurance contract additional words so that the exclusion clause would say benefits payable under an award of the compensation commission. We can neither make a new agreement for the parties nor, by addition, give it a meaning contrary to its express and unambiguous terms. F. H. McClintock Co. v. Truxell Sales & Service, Inc., 297 Mich. 284, 288, 297 N.W. 493.

In their argument that the circuit...