Cates v. Moyses
| Decision Date | 07 January 1975 |
| Docket Number | No. 3,Docket No. 18078,3 |
| Citation | 226 N.W.2d 106,57 Mich.App. 405 |
| Parties | Dwight Lee CATES and Ann Cates, Plaintiffs-Appellees Cross- Appellants, v. Arthur W. MOYSES and David D. Moyses, Defendants, and Detroit Automobile Inter-Insurance Exchange, Garnishee Defendant-Appellant Cross-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Weston L. Sheldon, Durance & Sheldon, Midland, for appellant.
Harvey E. van Benschoten, Saginaw, for appellees.
Before T. M. BURNS, P.J., and R. B. BURNS and CARLAND,* JJ.
The facts upon which the issues here involved must be determined have been stipulated and agreed upon by all parties. Following an automobile accident, suit was instituted by the plaintiffs against the defendants on July 12, 1968. A judgment was entered on November 17, 1971 in favor of the plaintiffs and against the defendants in a total sum of $60,000. The judgment assessed costs against the defendants which were later paid. Interest on the judgment was awarded in favor of the plaintiffs from the date of the filing of the complaint. At the time of the accident, defendant David D. Moyses was insured by garnishee defendant Detroit Automobile Inter-Insurance Exchange, hereinafter referred to as 'the company', to the limit of $10,000.
Following garnishment proceedings by the plaintiff's against the company, a disclosure was filed admitting the liability of the company under the policy in question. By this disclosure the company admitted owing under its policy $8,511 (it having previously paid $1,489 thereon) plus interest at the rate of 5% Per annum on this amount from the date of suit (July 12, 1968) to date of payment.
On September 12, 1972, a hearing was had on plaintiffs' petition for discovery of assets under M.C.L.A. § 600.6104; M.S.A. § 27A.6104. On September 20, 1972, after the first hearing on the above mentioned motion, the company paid into court the sum of $10,330.20 which represented the sum admitted to be due under its policy plus interest at 5% From July 12, 1968 to September 20, 1972.
Later, on May 15, 1973, the company made a motion for a rehearing in connection with the garnishment proceedings and further sought a determination by the court as to the interest, if any, due under the judgment.
By an amended order dated October 12, 1973, the trial court found the company to be liable for the limits of its policy in the sum of $10,000. The court also found the company to be liable under its policy for interest at the rate of 5% Per annum on the entire judgment of $60,000 computed from July 12, 1968 to September 20, 1972. This order further provided, as summarized in the parties stipulation of facts, as follows:
By this portion of its order, the trial court thereby tolled the further payment of interest upon the judgment of $60,000 as of September 20, 1972.
From this order the company appeals and the plaintiffs cross-appeal.
It is the contention of the appellant company that it should not be required to pay interest upon the entire judgment prior to the date of the entry thereof. The company further maintains that if it was obligated to pay interest upon the entire judgment for any period of time that that obligation was fulfilled upon the deposit of funds with the court on September 20, 1972.
On the other hand, the plaintiffs maintain that the company is obliged to pay interest on the entire judgment from the date that suit was instituted until its entire policy indebtedness was paid in full. That since the sums deposited in court did not discharge this obligation in full on September 20, 1972, that interest continued to run on the entire judgment.
By stipulation, the parties have agreed that the relevant provisions of the insurance policy involved are found in section 1 of said policy and are identified as 'supplemental provisions'. These provisions are as follows:
'As respects the insurance afforded for Section 1, the Exchange agrees to pay in addition to the applicable limits of liability:
'(a) All expenses incurred by the Exchange, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment which accrues after the entry of judgment and before the Exchange has paid, tendered or deposited in court that part of such judgment which does not exceed the limits of the Exchange's liability thereon;'
We agree with the circuit court that the company's reliance upon Cosby v. Pool, 36 Mich.App. 571, 194 N.W.2d 142 (1971), is misplaced. The language of the policy in Cosby is clearly distinguishable from the policy here in question. In Cosby, the insurer had limited its interest liability by the following language:
'2. As respects such insurance as is afforded by the other terms of this insuring Agreement, the Company shall
'(b) pay in addition to the applicable limits of the insuring Agreement (1) all costs taxed against the Insured in any legal proceedings defended by the Company according to the foregoing paragraph, and interest accruing on verdict or after judgment up to the date of payment or tender to the judgment creditor, or his attorney of record, by the company upon the Company's share of such verdict or judgment rendered in connection therewith * * *.'
We therefore adopt the following findings of the trial judge in his construction of the policy here before us:
'The language in Cosby is obviously different from that in this case where it speaks of 'all interest on the entire amount of any judgment' which this court would not regard as ambiguous but rather a clear undertaking to pay all interest on the entire judgment.'
The appellant company relies upon the following language found in Cosby on page 578, 194 N.W.2d on page 146:
'This, however, is applicable only to that interest which accrues upon the defendant insurance company's portion of the verdict.'
We hold such language to have been at the most Dicta since its use was determinative of no issue then before ...
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