Green v. Blicharski, Docket No. 9573
| Decision Date | 26 March 1971 |
| Docket Number | No. 1,Docket No. 9573,1 |
| Citation | 32 Mich.App. 15,188 N.W.2d 113 |
| Parties | Virgil GREEN and Enid Green, Plaintiffs-Appellees, v. Frederick Adam BLICHARSKI, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Carl K. Carlsen, Asst. Atty. Gen., for defendant-appellant.
Sanford N. Lakin, Detroit, for plaintiffs-appellees.
Before LEVIN, P.J., and BRONSON and O'HARA, * JJ.
The parties to this appeal have filed a stipulated statement of facts, pursuant to GCR 1963, 809 and 812.10.
Plaintiff, Virgil Green, was riding a motorcycle when struck by a vehicle owned and operated by defendant, Blicharski. Defendant was an uninsured motorist, but plaintiff's insurance provided for uninsured motorist coverage.
Plaintiffs filed a claim for injuries sustained by them under the uninsured motorists provision of their policy with Allstate Insurance Company. The Allstate policy provided that the maximum amount payable by Allstate would be $10,000, but that the exact amount should be agreed upon by the insured and the company. In the absence of such agreement, arbitration in accordance with the rules of the American Arbitration Association would be binding. Plaintiffs and Allstate were unable to agree. Following a contested hearing, the arbitrator awarded plaintiffs $7,250 in full satisfaction of Allstate's obligation under its policy.
Having filed a timely notice of intent to claim, under the Motor Vehicle Accident Claims Act, 1 plaintiffs then filed suit against defendant Blicharski to recover the damages sustained by them in the accident. On trial, plaintiffs were awarded judgment against defendant of $16,000, plus interest and cost. They thereafter filed a motion pursuant to M.C.L.A. § 257.1107 (Stat.Ann.1968 Rev. § 9.2807) to compel payment from the Found for the sum of $10,447, being the difference between the amount of the circuit court judgment and the arbitration award already obtained by plaintiffs.
The attorney general's office, representing the Secretary of State on behalf of the Fund, contended that the actual sum owing was $6,000 plus costs, alleging that the correct formula was to substract plaintiff's policy limit ($10,000) under their uninsured motorist coverage from the amount of the judgment.
Per contra, plaintiffs contend that the Fund is obligated to them for the difference between the arbitrator's award ($7,250) and the circuit court judgment ($16,000) or $8,750, plus interest and costs, a total of $10,477. The Fund appeals from the amount of the judgment of the trial court in favor of plaintiffs.
The question then is not whether the Fund is liable, but in what amount. We examine the pertinent section of the statute, M.C.L.A. § 257.1122 (Stat.Ann.1968 Rev. § 9.2822):
'(2) No payment shall be made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, or any amount paid or payable by an insurer by reason of the existence of a policy of insurance * * *.'
'(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, * * *.'
It is immediately apparent that we are called upon to determine the difference between the meaning of the terms 'paid' and 'payable' as used in the statute, as those terms affect the case at bar.
There is none. The amount 'payable' is the amount 'paid'. This, of course, is by reason of the arbitration clause in the policy. After the arbitration award was made according to the terms of the policy, there was nothing more 'payable'. The reason is because the policy says so. The only way to sustain the Fund's position would be to hold the arbitration clause void as against public policy or by reason of some specific statutory prohibition against it. There is neither.
The arbitration clause of the Allstate policy has been upheld by this court as a valid method for adjudicating claims under the policy. Bradt v. Allstate Insurance Company (1970), ...
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...maintains that the uninsured motorist fund should pay the Full amount authorized by statute. Plaintiff relies upon Green v. Blicharski, 32 Mich.App. 15, 188 N.W.2d 113 (1971) to support his claim that the Motor Vehicle Accident Claims Fund should be liable for the difference between the amo......
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...referred to in the statute; that amount is either 'payable' or 'paid' depending upon the point in time. In Green v. Blicharski, 32 Mich.App. 15, 19, 188 N.W.2d 113, 114 (1971), the Court of Appeals rejected the Fund's claim that the excess of the policy limit over the amount awarded by the ......