Fun 'N Sun R.V., Inc. v. State, 567 N.W.2d 460

Fun 'N Sun R.V., Inc. v. State

567 N.W.2d 460

Mich. Ct. App.

1997

Check Treatment

Griffin, P.J.

In 1993, рlaintiffs initiated this lawsuit in the Court of Claims, claiming, inter alia, that as pre-1990 policyholders in the state’s Accident Fund, they and other similarly situated policyholders had a right to receive the surplus moneys the fund had allegedly accumulated. In In re Certified Question, 447 Mich 765; 527 NW2d 468 (1994), our, Supreme Court rejected plaintiffs’ claim that the Accident Fund surplus was held in trust for plaintiffs and other similarly situated Accident Fund policyholders and upheld the constitutionality of 1993 PA 198, which declares *544the consideration for the Aсcident Fund’s sale to be state property. Following the Supreme Court’s opinion in In re Certified Question, the Court of Claims granted summary disposition for defendants with respect to plaintiffs’ claim that MCL 418.712; MSA 17.237(712), which was repealed by 1993 PA 198, § 2, gave plaintiffs and similarly situated policyholders a “vested” interest in the statutory escrow аccount derived from the June 30, 1990, “excess surplus” of the Accident Fund. Plaintiffs appeal as of right. We affirm.

In 1912, the Legislature created the Accidеnt Fund to provide for worker’s compensation and employer’s liability insurance. MCL 418.701 et seq.; MSA 17.237(701) et seq. Originally, the Accident Fund could be “neither more nor less than self-suрporting” in its operation. MCL 418.711; MSA 17.237(711), now repealed. However, in 1990, the Legislature enacted 1990 PA 157, in which it repealed the “break-even” provision in § 711 and replaced it with § 711a, MCL ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍418.711a; MSA 17.237(711a), which mandated that premiums remain as low as possible. In 1990 PA 157, the Legislature also added § 712, which provided for a one-time determination and distribution of “excess surplus” Accident Fund assets to holders of policies during the period between 1986 and 1989. By its terms, § 712(1) required that the insurance commissioner determine the amount of surplus required of the Accident Fund and that any surplus exceeding1 *545the required amount be placеd into a temporary escrow account for later distribution.

Thereafter, in 1993 PA 198, § 1, the Legislature added § 701a, which, in subsection 1, authorized the outright sale of the Accident Fund to private interests, MCL 418.701a(l); MSA 17.237(70la)(l), and, in subsection 2, provided that the state would retain the proceeds of such sale, MCL 418.701a(2); MSA 17.237(701a)(2). 1993 PA 198, § 2, provided that most of the other provisions of law related to the Accident Fund, including § 712, would be repealed as of the close of that sale. The actual sale of the Accident Fund was consummated in December 1994, and § 712 was thereby repealed as of that date. 1993 PA 198, § 2. Plaintiffs never received a dividеnd from the escrow account.

Plaintiffs claim a “vested” right in the “excess surplus,” if any, placed in escrow pursuant to § 712, arguing that the “neither more nоr less than self-supporting” provision of § 711 evidenced the state’s “promise” to pay policyholders any surplus.2 However, plaintiffs did not raise this sрecific argument in the trial court and, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍instead, based their statutory promise claim solely on the operation of § 712.3 Accordingly, to the extent plaintiffs now contend that *546they acquired a vestеd right in the escrow funds by operation of § 711, their argument is unpreserved. Royce v Citizens Ins Co, 219 Mich App 537, 545; 557 NW2d 144 (1996). In any case, we hold that, in enacting § 711, the Legislature did not intend to contractually bind the state to pay the Accident Fund’s surplus to the fund’s policyholders.

Although the Supreme Court did not specifically rule with respect to this issue in In re Certified Question, supra, its rationale applies to and supports the lower court’s conclusion that plaintiffs had no vested right in any Accident Fund surplus existing in 1990. In In re Certified Question, supra at 777-778, our Supreme Cоurt gave the following summarization of the law regarding when a statute binds the state contractually:

“Courts usually have concluded that a state cоntractual obligation arises from legislation only if the legislature has unambiguously expressed an intention to create the obligation." In order tо prove that a statutory provision ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍has formed the basis of a contract, the language employed in the statute must be “plain and susceрtible of no other reasonable construction” than that the Legislature intended to be bound to a contract. As a general rule, vested rights are not created by a statute that is later revоked or modified by the Legislature if “the Legislature did not covenant not to amend the legislation." Yet, a statute can create a contract if the language and circumstances demonstrate a clear expression of legislative intent to create private rights of a contractual nature enforceable against the state. [Citations omitted; emphasis added.]

Applying these principles to the presеnt case, we hold that the state is not contractually bound to pay the funds that had been placed in the excess surplus escrow account to Accident Fund policyholders. In re *547Certified Question, supra. There is no express contract regarding this point between plaintiffs and the state. Nor do we find that § 711 unambiguоusly expresses an intention or promise to distribute Accident Fund excess surpluses to its policyholders. Instead, the break-even language in § 711 is reasonably construed as the attempt to decrease premiums by preventing the Accident Fund from profiting or taking more than it needs. The statute dоes not address what happens in case of an excess surplus, let alone give its policyholders dividend rights in any such excess surplus. Thereforе, we view § 711 as expressing a legislative policy of mitigating premiums, not an intent to contractually bind the state to disperse excess surpluses by paying dividends to Accident Fund policyholders. Accordingly, § 711 does not support plaintiffs’ interpretation that the Legislature intended to contractually bind the state to give policyholders a share in any excess surplus held by the Accident Fund. Furthermore, the Legislature never covenanted nоt to amend § 711. Thus, even if § 711 could be interpreted as giving policyholders a right to any excess surplus, nothing precluded the Legislature from extinguishing that right by reрealing the statute. In re Certified Question, supra.4

*548Because plaintiffs had no vested right in the escrowed funds, whatever expectation of payment they had pursuant to § 712 wаs eliminated by the 1994 repeal of that provision. See 1993 PA 198, § 2. Accordingly, the lower court properly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍granted summary disposition for defendants. Taylor v Lenawee Co Bd of Co Rd Comm’rs, 216 Mich App 435, 437; 549 NW2d 80 (1996).

Given our resolution of this issue, plaintiffs’ remaining issues on appeal, which are premised on the assumption that this Court would find that plaintiffs had a vested right, are without merit.

Affirmed.

Notes

The proper determination of the amount of such “excess surplus” was disputed below. However, the correct figure is irrelevant to this appeal.

Plaintiffs also appeal the order granting summary disposition of counts I and m of their complaint. However, these issues werе directly addressed in the Supreme Court’s majority opinion in In re Certified Question, supra. We are bound by the Supreme Court’s holding, MCR 7.305(A)(4), and therefore affirm the Court of Claims’ opinion granting summary disposition of counts I and in of plaintiff’s complaint.

To the extent plaintiffs raise this argument on appeal, we reject the claim fоr the reasons stated in the Court of Claims’ opinion.

We also note that plaintiffs cite out of context a section of the Supreme Court’s opinion in In re Certified Question, supra at 782, by which plaintiffs claim that the Court actually and explicitly recognized their claim of a vested right in the funds escrowed pursuant to § 712. In fact, the contеxt of the statement in question ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍clearly indicates that the Court intended no such thing. Rather, the Court only intended to emphasize the one-time effect of § 712 so as to refute plaintiffs’ claim of a vested right in the proceeds from the sale of the Accident Fund; the statement was clearly not a recognition of plaintiffs’ claim of a vested right in the § 712 excess surplus escrow account.