Lehr v. Underwriters
| Decision Date | 11 March 1941 |
| Docket Number | No. 51.,51. |
| Citation | 296 N.W. 843,296 Mich. 693 |
| Parties | LEHR v. PROFESSIONAL UNDERWRITERS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Edward H. Lehr against the Professional Underwriters, on indemnity policy. From a judgment for defendant, plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; James E. O'Neill, judge.
Argued before the Entire Bench.
John H. Dohrman and Curtis D. Wernette, both of Detroit, for appellant.
Seth R. Bidwell, of Grand Rapids, for appellee.
Plaintiff, a licensed chiropractor, on January 11, 1936, took out a policy of indemnity in defendant company against loss from liability imposed by law on account of bodily injuries or death, suffered by any person or persons in consequence of any claim or suit resulting from errors or mistakes committed by him in his practice during the year ending January 11, 1937.
On March 8, 1938, two suits were begun against plaintiff for malpractice alleged to have occurred in the latter part of January, 1936, and to have continued until March 27, 1936. Defendant, upon being notified by plaintiff that the suits had been instituted, denied liability and refused to defend them. They were consolidated and resulted in verdicts against plaintiff for $450 in one case and 6 cents in the other.
The instant suit was brought by plaintiff to recover attorneys' and witnesses' fees paid by him or which he became obligated to pay in the amount of $750. The language of the policy limited its liability. It stated: ‘Therefore, said indemnitor does hereby agree with indemnitee named herein, subject to the limitations herein contained, to defend with its (indemnitors) attorneys, said indemnitee, in all civil suits brought against him by any party plaintiff, who alleges in the pleadings filed in said suit to have sustained damages in person under Articles I and II of this policy, but not otherwise, from a cause of action arising and accruing within the time included in this policy and presented or prosecuted within two months after the expiration hereof, and to promptly reimburse him for any and all final judgments paid by him, and not exceeding in amount the sum above limited.’ (Italics ours.)
The sole issue presented for determination is whether the italicized provision above constituted a valid defense to plaintiff's claim. The trial court found that the policy was a limited one and as no suit or claim was commenced or presented within the two months after the expiration of the policy, defendant was not liable. Plaintiff, upon appeal, contends that the provision is ambiguous, repugnant, invalid and impossible of performance, and that it is not legal, but is against good public policy.
It is generally true, as pointed out in appellant's brief, that a policy of insurance, written by the insurer, is given a construction favorable to the rights of the insured. But where no ambiguity exists, no construction, in the usual sense of the word, is called for. Mondou v. Lincoln Mutual Cas. Co., 283 Mich. 353, 278 N.W. 94. Appellant fails to allege wherein the ambiguity arises, and we...
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