Michigan Mut. Liability Co. v. Mesner

• Decision Date: 22 February 1966
• Docket Number: No. 1,No. 812,812,1
• Citation: Michigan Mut. Liability Co. v. Mesner, 139 N.W.2d 913, 2 Mich.App. 350 (Mich. App. 1966)
• Parties: MICHIGAN MUTUAL LIABILITY COMPANY, Plaintiff-Appellant, v. Patrick MESNER, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan

Page 913

139 N.W.2d 913

2 Mich.App. 350

MICHIGAN MUTUAL LIABILITY COMPANY, Plaintiff-Appellant, v. Patrick MESNER, Defendant-Appellee.

Cal. No. 812.

Court of Appeals of Michigan, Division No. 1.

Feb. 22, 1966.

Reginald S. Johnson, Detroit, for appellant.

Emerson H. Schink, Detroit, for appellee.

Before WATTS, P. J., and BURNS and GILLIS, JJ.

BURNS, Judge.

Plaintiff-appellant filed a motion for a declaratory judgment to determine its liability under an uninsured motorists section of an insurance policy.

Defendant-appellee carried a policy of automobile insurance with the appellant which contained a provision protecting the appellee from an uninsured motorist. He was injured in an accident with an uninsured motorist, has received $4,791 from a workmen's compensation carrier as a result of the same accident, and the matter is pending in an arbitration hearing under the policy.

The appellant contends the amount payable to appellee, if liability is found, would be the policy limit of $10,000, less $4,791. The appellee contends the amount payable, if liability is found, is the value of his injuries, less $4,791, and in no event to exceed $10,000.

The pertinent parts of the policy provide:

'PART IV--PROTECTION AGAINST UNINSURED MOTORISTS

'Coverage H--Uninsured Motorist (Damages for Bodily Injury)

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner of operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

'* * *.

'Limits of Liability

(a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to 'each accident' is the total limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.

(b) If claim is made under this Part and claim is also made against any person insured under Part 1 because of bodily injury sustained in an accident by a person who is an insured under this Part:

(1) any payment made under this Part to or for any such person shall be applied in reduction of any amount which he may be entitled to recover from any person insured under coverage A; and

(2) any payment made under coverage A to or for any such person shall be applied in reduction of any amount which he may be entitled to recover under this Part.

(c) Any loss payable under the terms of this Part to or for any person shall be reduced by the amount paid and the present value of all amounts payable to him under any workmen's compensation law, exclusive of non-occupational disability benefits.' (Emphasis supplied.)

The trial court held that the appellant was liable for the amount of the entire injury, less the $4,791 paid by the workmen's compensation carrier, but limited to $10,000.

The only authority cited to this Court is a case from the California court of appeals, Jarrett v. Allstate Insurance Company (1962), ...