266 N.W.2d 479 | Mich. Ct. App. | 1978
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
v.
CURL
Michigan Court of Appeals.
Selby, Dickinson, Pike, Mourad & Brandt (by Mark E. Morley), for plaintiff.
Hurwitz & Karp, for defendant.
*141 Before: D.E. HOLBROOK, P.J., and N.J. KAUFMAN and J.E. McDONALD,[*] JJ.
PER CURIAM.
On March 22, 1975, Russell Curl was a passenger on a motorcycle owned and operated by Ronald Priebe, Jr. Priebe's motorcycle was struck from the rear by an automobile owned and operated by Glyndon McDaniel, an uninsured motorist. As a result of the accident, Russell Curl was killed.
On the date of the collision, Curl resided with his parents who were insured by the plaintiff under two separate policies of automobile insurance, both of which provided uninsured motorist coverage. Additionally, the plaintiff issued a policy of insurance providing uninsured motorist coverage to Craig Cummins, a relative of Curl residing in the home of Curl and his parents. All three policies of insurance were identical and each provided $20,000/$40,000 uninsured motorist coverage.
On August 17, 1976, plaintiff filed a suit seeking declaratory relief on the question of whether the uninsured motorist coverage of the three policies of insurance could be stacked so as to allow $60,000/$120,000 uninsured motorist coverage. Plaintiff argued in the negative. In response to this suit, defendant moved for summary judgment claiming that as a matter of law stacking of uninsured motorist benefits is proper. On January 25, 1977, the circuit court denied defendant's motion and ruled that stacking could not be allowed. Defendant appeals.
We first concern ourselves with the question of whether the Cummins' policy could be stacked, were we to allow stacking, as a general rule. We *142 hold it can not. Defendant makes no argument which convinces us that it is somehow "proper as a matter of law" to subject plaintiff-insurer to potentially unlimited liability as to Cummins' policy under these circumstances. Furthermore, the rationale supporting the disposition of the other policies is inapposite to Cummins.
On the other hand, the policies owned by decedent's parents may be stacked for the reasons stated in the dissenting opinion in Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich. App. 777; 262 NW2d 904 (1977). Therefore, we reverse the circuit court's determination as to those two policies and remand for proceedings consistent with this opinion.
Affirmed in part; reversed in part. No costs, neither side having prevailed in full.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
