Detroit Automobile Inter-Insurance Exchange v. Widling
362 N.W.2d 227
Mich.
1985
Check Treatment

*1 DAIIE v INTER-INSURANCE EXCHANGE DETROIT AUTOMOBILE WIDLING 6). (Calendar Argued April Docket No. 69370. No. Decided 28, 1984. 17, 1985. January Rehearing December Released 421 Mich 1202. Exchange brought The Detroit Automobile Inter-Insurance Widling, action in the Oakland Circuit Court DAIIE, by named insured under an automobile seeking that it a declaration was not liable under the terms of that a in an automobile operated Widling passenger might and owned court, Widling as a result of an accident. The William Beer, J., granted, sponte, summary judgment sua for the plaintiff, holding that a "non-owned automobile” exclusion Kaufman, P.J., Appeals, was valid. The Court of J.N. Tahvonen, JJ., grounds and V. J. Brennan reversed on the genuine that there was no issue as to a material fact in plaintiff and that the was entitled to as a matter of (Docket law because such exclusions are unenforceable No. 55450). appeals. plaintiff opinion by Kavanagh, Supreme In a unanimous Justice Court held: Summary judgment should not have been ground that there was no issue as to material fact where the whether the vehicle driven the defen- dispute. Questions regarding dant was uninsured inwas resi- raised which are of n persons injured owners and drivers of motor vehicles and to automobile accidents should not be decided without further adequate briefing on both sides of the issue.

Vacated and remanded. (1982) App vacated. McGarry (by Condit, Schloff, & P.C. D. Michael Schloff), plaintiffs. for the Amicus Curiae:

Eggenberger, Eggenberger, McKinney Weber, & Mich Eggenberger D. (by Paul D. William P.C. Hofmeister), Mutual Automobile Company. Insurance appeal from a decision is an J. This

Kavanagh, *2 reversing summary Appeals of the Court plaintiff. judgment for Sylvia Todd lived involved Defendant household.

same in an owned was operating a car while automobile collision Todd, in her who Todd. was a personal injuries as a result of suffered accident, against she filed suit for which Widling. plaintiff Detroit This action commenced when (DAIIE) Exchange

Automobile filed a Inter-Insurance declaratory judgment complaint for a asserted the defendant. although under an was a named insured defendant plaintiff, plaintiff was automobile the terms of the not liable under damages Todd defendant account of the accident. summary judgment of dis- Defendant moved for 117.2(1) (failure under GCR to state a

missal claim granted) upon which relief basis that the "non-owned automobile” exclusion upon liability, relied to avoid Appeals void under the Court of decision in State Ruuska, Farm Mutual Automobile Co v Ins (1979). App 767; Mich opposed Plaintiff summary judgment, the motion for main- taining operated the vehicle owned Todd and defendant is excluded from excluding provi- terms of the and that sion is not void.

The trial court denied defendant’s motion for judgment sponte granted plain- and sua V WlDLING (no 1963, 117.3 under GCR tiff plain- fact in issue of material law), a matter to as tiff entitled exception "non-owned automobile” holding case. this valid reversed, finding that this The Court of Mutual in Automobile Court’s decision Ruuska, Mich Ins Co automobile” held such "non-owned were unenforceable. exceptions such leave consider We held void. absolutely clauses should be we first considered When Ruuska, were of the three of the no-fault automobile clauses were violative liability seq.; et act, 500.3101 MSA 24.13101 seq., et void and unen- absolutely and therefore J.). forceable. 412 One (Williams, concluded: *3 required by "An insurer is not the no-fault act to provide portable coverage other insured vehicle.8 the owner when drives an "8 provisions policies implicated Other of the act are where a person insured or covered a no-fault drives an uninsured regard.” vehicle. No is intimated in that J., concurring). 412 Mich 343 (Levin, That additionally concluded that were void and unenforceable on other clauses grounds. agreed Three that the no-fault require portable act did not coverage when the owner drives another insured but would have held that the clause was enforceable. 412 reversal). (Coleman, C.J., for case,

In the instant alleged DAIIE’s the Todd vehicle was uninsured. Widling’s that answer denied that the Todd vehicle was unin- 420 Mich summary judg- for filed a motion

sured. asserting clause was the ment Ruuska. void Widling’s judge motion and

The circuit The file to DAIIE. by DAIIE for a motion not contain judge Inexplicably, judgment. it was said "undisputed” vehicle was uninsured. that the Todd rehearing, arguing inter filed twice granted summary judg- judge had alia disputed, of facts that were ment on the basis including vehicle was insured. the Todd denied. These motions were granting summary judgment judge The erred disputed question fact. where there was por- reserved Ruuska —whether coverage required table drives another vehi- no-fault act when insured not be addressed cle that is uninsured —should it is determined that the Todd vehicle was unless uninsured.

If it determined that the Todd vehicle were be necessary insured, it to reconsider the holding in State Farm Mutual Automobile Ins Co v Sivey, that an ex coverage bodily injury clusion from residing any family an insured or member in the same household as the insured Motor Vehicle Code. decided,1 of the was violative

Shortly before Legislature amended of the no- provide fault act to that residual required is not "in this state other than that 3009(1).” required by section 1978 PA *4 3009(1) MSA 24.13131. Section not 500.3131; language include the of the Motor Vehicle Code 1Sivey 26, was decided on December 1978. 1978 PA 460 was approved 1978. October WlDLING V 500.3009(1); MSA Sivey. on in relied 24.13009(1). vitiated authority of

If the act and 3131 of the no-fault 1978 amendment liability cover- residual §3009(1) require does not being operated the vehicle is age when in clause and the authorized driver re- not valid, then the no-fault act is issue an insured coverage unless quire owner-insured. driven being vehicle no resi- there would be be that often result could to an insured insurance vehicle. there are limitations that whether suggests

This the insured is coverage when on residual and when an insured an uninsured vehicle driving the in- other than being by person driven vehicle importance of considerable questions sured are of the no-fault act. application Court. We Widling has not filed a brief questions should not decide drivers, owners, without ade- injured persons and sides of the quate briefing question, both inviting amicus briefs from be obtained plaintiffs’ defendants’ bars. We vacate the decision of the Court of pro- and remand to the circuit court for further ceedings opinion. consistent with this

Williams, C.J., Brickley, Levin, Ryan, Cavanagh, Boyle, JJ., concurred with Kav- ANAGH,