Home Ins. Co. v. Rosquin
| Decision Date | 06 June 1979 |
| Docket Number | D,No. 78-4283,78-4302,Docket Nos. 78-4283,No. 78-4302,AUTO-OWNERS,78-4283 |
| Parties | HOME INSURANCE COMPANY, Assignee of Bertha Lendzion, Plaintiff- Appellee, v. Frank Eugene ROSQUIN, Elek Papp, Jr., d/b/a Pappy's Salvage Yard, Sally Ann Geer, James C. Bennett, and Dairyland Insurance Company, Defendants. Appeal ofINSURANCE COMPANY inefendant. Appeal of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY inefendant. |
| Court | Court of Appeal of Michigan — District of US |
Thomas D. Rinehart, Mount Clemens, for Auto Owners.
Ernst W. Kuck, Southfield, for State Farm Ins.
William J. Soloy, Detroit, for Home Ins.
Ralph W. Barbier, Jr., St. Claire Shores, for Rosquin & Dairyland.
Thomas D. Rinehart, Mount Clemens, for Elek Papp & Pappys Salvage.
Ernst W. Kuck, Southfield, for Sally Geer.
John Paterson, Sandusky, for James Bennett.
Before KAUFMAN, P. J., and ALLEN and GLASER, Jr., * JJ.
Defendants Auto-Owners Insurance Company and State Farm Mutual Automobile Insurance Company appeal by right from a September 26, 1978, summary judgment issued against them by the Macomb County Circuit Court. Both companies claim that the statute of limitations barred this action against them. We agree and reverse.
On December 13, 1974, a truck-car collision resulted in damage to a fur shop insured by plaintiff Home Insurance Company. The car was driven by Ms. Geer who had a no-fault insurance policy with State Farm. The truck was driven by Mr. Rosquin who had a no-fault insurance policy with Dairyland. The truck tractor was owned by Mr. Bennett but was not insured. The truck trailer was owned by Mr. Papp who had a no-fault insurance policy with Auto-Owners.
On April 4, 1975, after plaintiff had paid the fur company for its damages, plaintiff sent a notice of lien and subrogation interest to Auto-Owners. On August 8, 1975 Auto-Owners advised plaintiff that it did not intend to make any voluntary payments on the claim. 1
Plaintiff's first complaint was filed against Mr. Rosquin, Mr. Papp and Ms. Geer on December 9, 1975. However, on May 18, 1976, plaintiff filed an amended complaint to add Mr. Bennett, Dairyland, State Farm and Auto-Owners as defendants.
Numerous motions for accelerated or summary judgment were filed by the parties. Defendants State Farm and Auto-Owners raised the no-fault act's one-year statute of limitations as a bar to plaintiff's action against them. The circuit court specifically rejected State Farm's argument, finding that plaintiff's suit against Ms. Geer "was in fact a suit against her insurer State Farm Mutual Automobile Insurance Company under the authority of Kirkwood v. DuRussell, Court of Appeals Docket 30893 (11-25-77)". 2 Plaintiff's motion for summary judgment against defendants Auto-Owners and State Farm was granted on September 26, 1978, and those defendants now appeal.
Under the no-fault act's property protection insurance provisions, and subject to certain exclusions not applicable here, M.C.L. § 500.3123; M.S.A. § 24.13123, a no-fault insurer is liable to pay benefits for accidental damage to tangible property when such damage arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. M.C.L. § 500.3121; M.S.A. § 24.13121. A person suffering accidental property damage must claim property protection insurance benefits from the insurers of owners or registrants of vehicles involved in the accident or, if there are no such insurers, from the insurers of operators of vehicles involved in the accident. M.C.L. § 500.3125; M.S.A. § 24.13125. As stated in Shavers v. Attorney General, 402 Mich. 554, 631, 267 N.W.2d 72, 102-103 (1978):
In pursuing property protection insurance benefits from the appropriate insurer, the injured party is restricted by the one-year statute of limitations in M.C.L. § 500.3145(2); M.S.A. § 24.13145(2):
"An action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident."
The accident in the instant case occurred on December 13, 1974, and plaintiff's complaint was not amended to include State Farm and Auto-Owners, the appropriate insurers under ...
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