Old Reliable Fire Ins. Co. v. Schaub, Docket No. 77-2861

• Decision Date: 21 August 1978
• Docket Number: Docket No. 77-2861
• Citation: 85 Mich.App. 294,271 N.W.2d 206
• Parties: OLD RELIABLE FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Martha Jane SCHAUB and Stephen William Schaub, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 206

271 N.W.2d 206

85 Mich.App. 294

OLD RELIABLE FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Martha Jane SCHAUB and Stephen William Schaub, Defendants-Appellees.

Docket No. 77-2861.

Court of Appeals of Michigan.

Aug. 21, 1978.

Released for Publication Nov. 13, 1978.

Barbier, Goulet, Petersmarck & McFarland by Ralph W. Barbier, Jr., St. Clair Shores, for plaintiff-appellant.

A. Ross MacEwen, Troy, for Martha Schaub.

Peter Pappas, Troy, for Stephen Schaub.

Before D. E. HOLBROOK, P. J., and KELLY and MARUTIAK, ^* JJ.

PER CURIAM.

On July 7, 1975, defendant Martha Jane Schaub was injured while riding as a passenger on a motorcycle that was owned and operated by her husband, codefendant Stephen William Schaub, and insured by plaintiff. On January 22, 1976, Martha Schaub filed suit against her husband for ordinary negligence.

Subsequent to the date of the accident but prior to the date that Martha Schaub filed her suit, the Supreme Court released its decision in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975). ¹ In that case, the Supreme Court held unconstitutional the Michigan Guest Passenger Statute. M.C.L. § 257.401; M.S.A. § 9.2101. That statute had limited tort recovery by passengers in a motor vehicle to cases where the driver was guilty of gross negligence or willful and wanton misconduct. On July 20, 1976, plaintiff instituted the present action for declaratory judgment, arguing that the Manistee Bank case was not to be given retrospective application, and therefore, it was not liable for the ordinary negligence of its insured, Stephen Schaub. In an opinion dated July 7, 1977, the lower court held that the Supreme Court's decision in Manistee Bank was to be applied retroactively and that plaintiff was required to defend Stephen Schaub in the action brought against him by his wife. From this opinion, plaintiff now appeals.

As is noted by plaintiff, the opinion of the Supreme Court in the Manistee Bank case does not state whether it is to be given retroactive effect. However, that it was the Supreme Court's intention to apply Manistee Bank retrospectively is made clear in its disposition of Dunham v. Lowinger, 395 Mich. 793, 235 N.W.2d 153 (1975). There, on the basis of Manistee Bank, the Supreme Court reversed a 1973 decision of this Court. See also Stanfill v. Powers, 68 Mich.App. 488, 243 N.W.2d 24 (1976) (applying Manistee Bank to a July 4, 1970, accident and a May, 1975, trial).

These opinions, applying Manistee Bank retrospectively, are in accord with the general rule that unconstitutional statutes are void Ab initio. Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 253 N.W.2d 114 (1977); Horrigan v. Klock, 27 Mich.App. 107, 183 N.W.2d 386 (1970). Thus, in conformity with this general rule pertaining to the application of unconstitutional statutes and noting that the Supreme Court seems to have intended that the Manistee Bank case be applied retrospectively, we affirm the lower court's denial of declaratory relief to plaintiff. Plaintiff is obliged to...