Universal Underwriters Ins. Co. v. Vallejo

• Decision Date: 12 October 1990
• Docket Number: No. 87133,No. 109076,87133,109076
• Citation: 436 Mich. 873,461 N.W.2d 364
• Parties: UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Subrogee of Martin Chevrolet Sales, Inc., and Individually, Plaintiffs-Appellees, v. Jesus Ernesto VALLEJO, Defendant-Appellant. COA
• Court: Michigan Supreme Court

Page 364

461 N.W.2d 364

436 Mich. 873

UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Subrogee of Martin Chevrolet Sales, Inc., and IndividuallyPlaintiffs-Appellees, v.Jesus Ernesto VALLEJO, Defendant-Appellant.

No. 87133.

COA No. 109076.

Supreme Court of Michigan.

Oct. 12, 1990.

ORDER

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the August 21, 1989, judgment of the Court of Appeals, 179 Mich.App. 637, 446 N.W.2d 510, and REMAND the case to the Saginaw Circuit Court for entry of judgment in favor of the defendant.Although the trial court gave the plaintiff insurer numerous opportunities to explain, with specific factual allegations, how its conclusory allegation of an express or implied contract of bailment differentiated this case from any other situation in which a permissive user of a car is involved in a collision and therefore cannot return the car to its owner in an undamaged condition, the plaintiff repeatedly failed to do so.Under these circumstances, we think the trial court correctly granted the defendant's motion for summary disposition.By operation of the pertinent insurance statutes, e.g., M.C.L. § 257.520(b)(2);M.S.A. § 9.2220(b)(2)andM.C.L. § 500.3009;M.S.A. § 24.13009, the defendant appears to have been insured by the plaintiff against the very loss at issue in this case, since a standard automobile policy typically insures such a permissive driver "against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of" a motor vehicle.

We do not retain jurisdiction.

LEVIN, J., would grant leave to appeal and states:

I would grant leave to appeal to consider the issue dealt with in the opinion of the Court of Appeals in the instant case.

The Court of Appeals concluded that the abolition of tort liability for injuries or damages arising from the ownership, maintenance or use of a motor vehicle, did not abolish contractual liability for losses arising from the use of a motor vehicle, and cited in support Nat'l Ben Franklin Ins. Co. v. Bakhaus Contractors, Inc., 124 Mich.App. 510, 335 N.W.2d 70(1983);Kinnunen v. Bohlinger, 128 Mich.App. 635, 341 N.W.2d 167(1983);Hengartner v. Chet Swanson Sales, Inc., 132 Mich.App. 751, 758, 348 N.W.2d 15(1984).

While those decisions might be distinguishable, and the other bases of the decision of the Court of Appeals are arguably incorrect, the issue is deserving of plenary treatment by this Court.

I adhere to the view that peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required.¹While no factual assessment may be required in the instant case, ² it is apparent, upon consideration of the authorities cited by, and the analysis in those decisions, and the instant decision of the Court of Appeals, that the law is not settled.

The statement in this Court's order that the defendant"appears" to have been insured by the plaintiff because, in part, a standard insurance policy "typically" insures a permissive driver indicates that the plaintiff's argument is deserving of plenary consideration and may not appropriately be dismissed peremptorily.No decision of this Court is cited by the majority in support of peremptory disposition.

I would, again, grant leave to appeal.

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