Gurwin v. Alcodray
| Decision Date | 19 July 1977 |
| Docket Number | Docket No. 30504 |
| Citation | 77 Mich.App. 97,257 N.W.2d 665 |
| Parties | Howard E. GURWIN, next friend of Joseph Alcodray, Amera Alcodray, Raymond Alcodray, Jannan Alcodray and Abdul Alcodray, Plaintiffs-Appellees, v. Michael ALCODRAY & Secretary of State for the State of Michigan, Defendants-Appellees, and Farmers Insurance Group, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Harvey, Kruse & Westen, P. C. by Richard A. Harvey and Paul B. Hynes, Detroit, for defendant-appellant.
Gerald E. Wigod, Southfield, for Gurwin, et al.
Walter S. Schwartz, Farmington Hills, for M. Alcodray.
Richard P. Condit, Bloomfield Hills, Carl K. Carlsen, Asst. Atty. Gen., Lansing, for Sec. of State.
Before MAHER, P. J., and KAUFMAN and FRED J. BORCHARD, * JJ.
Plaintiff, as next friend of several minors, brought this action for a declaratory judgment. The court was asked to determine the liability of defendant Farmers Insurance Group under an insurance policy issued to defendant Alcodray, the minors' father, and also the liability of defendant Secretary of State as director of the Motor Vehicle Accident Claims Fund, M.C.L.A. § 257.1101 et seq.; M.S.A. § 9.2801 et seq. 1 The court below voided an exclusionary clause in the policy issued by defendant Farmers Insurance Group. Defendant insurer appeals.
Defendant insurer issued to Michael Alcodray an insurance policy providing protection against liability arising out of his ownership, maintenance or use of his automobile. The policy, however, excluded coverage "to liability of any insured for bodily injury to (a) any member of the same household of the insured except the servant * * * ". If valid, this exclusion would not protect Michael Alcodray for his possible liability for the injuries his children received while his passengers.
An owner's policy of liability insurance, if certified as proof of financial responsibility, must comply with statutory requirements. M.C.L.A. § 257.520; M.S.A. § 9.2220. Exclusions that cause a certified policy to deviate from statutory requirements are barred. Lilje v. Allstate Insurance Co., 393 Mich. 259, 224 N.W.2d 279 (1974); Citizens Mutual Insurance Co. v. Central National Insurance Co. of Omaha, 65 Mich.App. 349, 237 N.W.2d 322 (1975). Since M.C.L.A. § 257.520(b)(2); M.S.A. § 9.2220(b)(2) requires that a liability policy insure the named insured "against loss from the liability imposed by law", and parental immunity no longer exists in Michigan, Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972), the exclusion under consideration can have no effect.
Another panel of this Court has recently reached the opposite conclusion in State Farm Fire and Casualty Co. v. Peckham, 74 Mich.App. 551, 553-554, 254 N.W.2d 575, 576 (1977):
"On the basis of the reasoning in Weisberg v. Detroit Automobile Inter-Insurance Exchange, 36 Mich.App. 513, 194 N.W.2d 193 (1971), and M.C.L.A. 500.3009(2); M.S.A. 24.13009(2), we reject the argument that the household exclusion is contrary to the spirit and intent of the financial responsibility act (M.C.L.A. 257.501 et seq.; M.S.A. 9.2201 et seq.)."
This analysis is unacceptable. Weisberg, over a strong dissent by then Judge Levin, upheld an exclusion that precluded liability coverage "to bodily injury to any named insured". The majority reasoned that the exclusion was not contrary to the public policy expressed by the Motor Vehicle Accident Claims Act, M.C.L.A. § 257.1101 et seq.; M.S.A. § 9.2801 et seq., because that act is "concerned with the protection of the rights and claims of third parties when the vehicle owner becomes liable to those third parties". 36 Mich.App. at 518, 194 N.W.2d at 195. The reasoning in Weisberg supports the holding that the household exclusion, which deprives...
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