Citizens Mut. Ins. Co. v. Central Nat. Ins. Co. of Omaha, Docket No. 22138
| Decision Date | 28 October 1975 |
| Docket Number | Docket No. 22138 |
| Citation | 65 Mich.App. 349,237 N.W.2d 322 |
| Parties | CITIZENS MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA et al., Defendants-Appellees, and Secretary of State, State of Michigan, Director of the Motor Vehicle Accident Claims Fund, Intervening Defendant-Appellee. 65 Mich.App. 349, 237 N.W.2d 322 |
| Court | Court of Appeal of Michigan — District of US |
[65 MICHAPP 350] Milliken & Magee by Herbert A. Milliken, Jr., Flint, for plaintiff-appellant.
Russell E. Bowers, Flint, for Central Nat. Life.
Norman N. Gottlieb, Flint, for Volattas.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph B. Bilitzke, Carl K. Carlsen, Asst. Attys. Gen., Ivor R. Jones, Flint, for intervening defendant-appellee.
Before QUINN, P.J., and D. E. HOLBROOK and WALSH, JJ.
This is an appeal as of right from a Genesee County Circuit Court order denying the plaintiff Citizens Mutual Insurance Company (hereinafter 'Citizens') a declaratory judgment. At issue is whether a motorcycle was an 'uninsured motor vehicle' within the meaning of Section 2(d) of the Motor Vehicle Accident Claims Act, 1965 P.A. 198, as amended, M.C.L.A. § 257.1102(d); M.S.A. § 9.2802(d). The case arose from a May 20, 1972, accident wherein Diane Volatta, passenger on a motorcycle owned and driven by Michael Porritt, suffered severe personal injuries when Porritt drove into the path of an oncoming vehicle.
On April 5, 1972, Central National Insurance Company (hereinafter 'Central National') had issued a motor vehicle liability insurance policy for the motorcycle and furnished Porritt with a binder which he presented at the Secretary of State's office in order to register the cycle and to obtain [65 MICHAPP 351] license plates. The policy contained the following provision:
'PART I LIABILITY
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. Bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury' sustained by any person; caused by accident and arising out of the ownership, maintenance or use of the owned motorcycle. * * *' Central National attempted to exclude Passengers of the motorcycle from the benefits of coverage by including the following:
'EXCLUSIONS. This policy does not apply under Part I:
(m) Under coverage A and B to bodily injury to any person, or damage to the property of any person, while on or getting on or alighting from the insured motorcycle.'
Diane Volatta was an 'insured' under an automobile liability policy issued to her father by Citizens, which policy provided personal injury liability protection in the event of an accident with an uninsured motorist. Citizens therefore commenced this declaratory judgment action seeking a declaration that Central National's passenger exclusion was void as against public policy and that the motorcycle was not an uninsured vehicle within the meaning of the Motor Vehicle Accident Claims Act, Supra, and the uninsured motorist provisions of Citizens' insurance policy.
Section 2(d) of the Motor Vehicle Accident Claims Act, Supra, provides that the term:
[65 MICHAPP 352] "Uninsured motor vehicle' means a motor vehicle as to which there is not in force a liability policy meeting the requirements of (MCLA 500.3009; MSA 24.13009).' M.C.L.A. § 500.3009; M.S.A. § 24.13009 provides in pertinent part:
'(1) An automobile liability * * * policy insuring against loss resulting from liability imposed by law for * * * bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be * * * issued for delivery in this state * * * unless such liability coverage * * * is subject to a limit, * * * of not less than $20,000.00 because of bodily injury to or death of 1 person in any one accident * * *.
'(2) When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance * * *:
Warning--when a named excluded person operates a vehicle all liability coverage is void--no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.' (Emphasis added.)
Prior to its amendment in 1971, 1971 P.A. 211, Section 2(d), Supra, defined the term 'uninsured motor vehicle' with a reference to the provisions of the Financial Responsibility Act, 1 particularly Section 520(b) of the act, M.C.L.A. § 257.520(b)(2); M.S.A. § 9.2220(b)(2), which briefly outlined the statutory requirements which must be met by a liability insurance policy and also designated mandatory limits of personal injury and property damage liability coverage (now contained in M.C.L.A. § 500.3009(1); M.S.A. § [65 MICHAPP 353] 24.13009). Citizens, to a large extent, relies on Allstate Insurance Co. v. Motor State Insurance Co., 33 Mich.App. 469, 190 N.W.2d 352 (1971), and other decisions of this Court construing the former statute and in effect argues that the 1971 amendment of Section 2(d) did not work a change in the public policy of this state as enunciated in those decisions. We agree with this position.
Allstate, supra, involved the validity of an exclusionary clause in an automobile liability policy issued to Judith or Norman L. Bangs which attempted to exclude Norman L. Bangs from liability protection as an operator of the motor vehicle. The court referred to the statutory scheme and concluded:
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