Aetna Casualty & Surety Co. v. CollinsAetna Casualty & Surety Co. v. Collins
Plaintiff insurance company appeals by leave granted from an order denying plaintiffs mоtion for summary judgment under GCR 1963, 117.2(2).
On August 16, 1979, Ellen Vogt was killed when the pick-up truck she was riding in as a passenger collided with an uninsured motor vehicle at the intersection of Leith and St. James Streets in Flint. The pick-up truck was owned and being driven by plaintiffs insured, Thomas R. Vick, and the uninsured motor vehicle was owned аnd operated by Lee Collins, the defendant. As a result of the accident, plaintiff paid $20,000 in рersonal protection insurance (PIP) benefits to the estate of Ellen Vogt.
On June 6, 1981, plaintiff filеd a complaint in Genesee County Circuit Court against Collins for reimbursement of the PIP benefits it paid. Collins was charged with manslaughter in the incident, and he eventually pled guilty to negligent homicide. Hе was sentenced to a term of probation on October 10, 1980, and one of the conditions of probation was that Collins make restitution to the estate of Ellen Vogt in the amount of $1,986, to cover funeral expenses.
Thereafter, plaintiff moved for summary judgment under GCR 1963, 117.2(2). The trial judge *663 dеnied the motion by order dated February 15, 1983, for the reason that he considered the reimbursement action barred by the restitution order in the criminal case.
On appeal, plaintiff states the issue in the matter as follows:
"Is the no-fault insurance carrier barred from receiving their rights under the No-Fault Act pursuant toMCLA 500.3177 and barred from suing the uninsured motorist for twenty thousand dollars ($20,000) after having рaid twenty thousand dollars ($20,000) in uninsured motorist benefits, when the uninsured motorist has been found guilty of negligent homiсide in an earlier criminal proceeding and ordered by the trial judge in the earlier criminаl proceeding to pay one thousand nine hundred and eighty-six dollars ($1,986) to the insurance cоmpany’s subrogor for funeral expenses?”
We conclude the answer to the question presented is "No”.
A restitution order as a condition of probation pursuant to
"Of course, restitution must not be used as a substitute for detеrmination in the proper forum of a defendant’s civil liability.” People v Pettit,88 Mich App 203 , 207, fn 2;276 NW2d 878 (1979), lv den406 Mich 987 (1979).
However, any civil damages recovered by plain *664 tiff pursuant to the restitution order should bе credited to him in any civil damage judgment. 22 Am Jur 2d, Damages, § 206, p 287.
Answering the question presented favorably to the plaintiff does not, however, require reversal of the trial court’s denial of plaintiff’s motion for summary judgment. Plaintiff’s motion was predicated on
"An insurer obligated to pay persоnal protection insurance benefits for accidental bodily injury to a person occupying an uninsured motor vehicle or to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits pаid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his estate. Failure of such a person to make payment within 30 dаys is a ground for suspension or revocation of his motor vehicle registration and opеrator’s license. An uninsured motor vehicle for the purpose of this section is a motor vеhicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident.”
Under this statute, only an insurer
"obligated
to pay personal protection insurance benefits
* * * to a person occupying an uninsured motor vehicle or to the sрouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle
may recover” the benefits expended. (Emphasis supplied.) Plaintiff has failed to plead that Ellen Vogt was either an occupant of defendant’s motor vehicle or a resident of defendant’s household. Instead, plaintiff pled that Ellen Vogt was its insured’s, Thomas R. Vick’s, pаssenger. Therefore, plaintiff is not entitled to reimbursement of the benefits paid to the estate of Ellen Vogt under
*665
The case of
Auto-Owners Ins Co v Biddis,
The estate of Ellen Vogt may have a common-law cаuse of action in tort. The no-fault act did not abolish the tort liability of uninsured motorists. The Court in
Citizens Ins Co of Amercia v Tuttle,
"Moreover, subsection (2) [MCL 500.3135(2) ; MSA 24.13135(2)] abоlishes tort liability arising from the ownership, maintenance or use only of vehicles for which the required no-fault insurance or other security has been obtained * *
"* * * The non-motorist tortfeasor is the equivalent of the uninsured motorist and should be treated similarly. Both are outside the basic no-fault system of allocating the costs of accidents and both remain subject to tort liability.”
Accordingly, we affirm the decision of the trial court and remand the case to the trial court for. further proceedings consistent with this opinion. We do not retain jurisdiction.