Hopkins v. Auto-Owners Ins. Co.

• Decision Date: 29 June 1972
• Docket Number: AUTO-OWNERS,Docket No. 12343,No. 2,2
• Citation: 41 Mich.App. 635,200 N.W.2d 784
• Parties: Horace HOPKINS, Plaintiff-Appellant, v.INSURANCE COMPANY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 784

200 N.W.2d 784

41 Mich.App. 635

Horace HOPKINS, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellee.

Docket No. 12343.

Court of Appeals of Michigan, Division No. 2.

June 29, 1972.

Leave to Appeal Denied Aug. 24, 1972.

Released for Publication Sept. 26, 1972.

John B. Collins, Dannemiller & Campbell, Ypsilanti, for plaintiff-appellant.

Chris L. McKenney, Conlin, Conlin, McKenney & Meader, Ann Arbor, for defendant-appellee.

Before QUINN, P.J., and V. J. BRENNAN and TARGONSKI, ^* JJ.

PER CURIAM.

Plaintiff was covered by a policy of automobile liability insurance issued by the defendant, which policy included uninsured motorist coverage. While this policy was in effect, plaintiff was injured in an automobile accident which occurred in his employer's parking lot. The accident occurred as the result of the negligence of a fellow employee, who was an uninsured motorist. Plaintiff concedes that he is unable to bring an action directly against the tortfeasor because of the exclusive remedy provisions of the workman's compensation act. Plaintiff nevertheless sought to recover from his insurer pursuant to the uninsured motorist coverage in his policy. Defendant insurer denied liability on the basis that the policy required the insurer only to 'pay all sums which the insured * * * shall be Legally entitled to recover as damages from the owner or operator of an uninsured automobile.' (Emphasis Added.) Defendant maintained that because of the exclusive remedy provisions of the workmen's compensation act, plaintiff was not 'legally entitled' to recover from the uninsured motorist.

Pursuant to the provisions of the policy of insurance, plaintiff requested arbitration of the dispute. Arbitration proceedings were conducted and the defendant prevailed. Plaintiff sought a review of this decision in the Washtenaw County Circuit Court. Plaintiff appeals from that court's grant of defendant's motion for accelerated judgment.

Plaintiff first argues that the arbitrator exceeded his authority by interpreting the language of the policy. He maintains that the jurisdiction of the arbitrator extended only to the questions of fault and damages, and did not include construction of the policy phrase 'pay all sums which the insured * * * shall be Legally entitled to recover as damages form the owner or operator of an uninsured automobile.'

We find this argument without merit and Western Casualty & Surety Co. v. Strange, 3 Mich.App. 733, 143 N.W.2d 572 (1966), factually inapplicable. In Strange, supra, there was no Physical contact between the vehicle of the insured and the hit-and-run driver and the latter was identified. Thus, the policy definition of 'hit- and-run driver' was not satisfied and the question of insurance coverage was not arbitrable by the terms of the policy.

In Maryland Casualty Co. v. McGee, 32 Mich.App. 539, 189 N.W.2d 44 (1971), there was Physical contact and the 'hit-and-run driver' was Unidentified. The policy definition of 'hit-and-run driver' was satisfied in McGee, supra, and the question of coverage was arbitrable by the terms of the policy.

The case before us presents no question of 'hit-and-run driver.' It involves damages caused by a known uninsured motorist and by the terms of the policy involved, the meaning of the phrase 'pay all sums which the insured * * * shall be Legally entitled to recover as damages from the owner or operator of an uninsured automobile' was arbitrable.

Both parties, without reservation or objection, submitted this dispute to the arbitrator. Such submission...