93 Mich. App. 252 | Mich. Ct. App. | 1979
This action arose out of an automobile accident occurring on December 24, 1974, in which plaintiff Tuesink’s decedent was killed and plaintiff Koopman was seriously injured. Two default judgments in the amount of $100,000 each were taken against defendant Patricia Logan, the owner of one of the automobiles involved in the accident. Plaintiffs sought to recover from Allstate Insurance Company, Logan’s insurer, for the amount of the two judgments. Allstate denied that it had provided insurance coverage for defendant Logan’s vehicle at the time of the accident. Plaintiffs appeal a judgment in favor of defendant Allstate Insurance Company resulting from a jury
On appeal, plaintiffs argue that the trial court erroneously cast the burden of nonpersuasion on the plaintiffs by instructing the jury on the effect of the statutory presumption contained in MCL 500.3020; MSA 24.13020. Plaintiffs argue that the instruction given by the trial court shifted the burden of proof in violation of MRE 301.
MCL 500.3020; MSA 24.13020 provides that the mailing of a notice of cancellation of an insurance policy shall be prima facie proof of notice. This language denotes a rebuttable presumption of receipt of the notice from proof of the mailing. Raptis v Safeguard Ins Co, 13 Mich App 193, 199; 163 NW2d 835 (1968). Generally, there has been no distinction drawn between jury instructions applicable to statutory presumptions, and those applicable to common-law presumptions. In re Wood Estate, 374 Mich 278, 293; 132 NW2d 35 (1965). Therefore, in the absence of any language in the statute indicating that this presumption is to be dealt with in a special way, this Court agrees with the plaintiff that MRE 301, which covers the operation of presumptions in civil cases, applies in this case.
This Court disagrees, however, with plaintiffs’ contention that the instruction given by the trial court did not comport with MRE 301. This Court approved the substance of the trial court’s instruction, in a case involving the evidentiary effect of this presumption, in Good v DAIIE, 67 Mich App 270, 276-277; 241 NW2d 71 (1976). Subsequently, in Kar v Hogan, 399 Mich 529, 538-542; 251 NW2d 77 (1976), the Court clearly indicated that an instruction of this type does not shift the burden of proof in the sense of the risk of nonpersuasion,
Plaintiffs’ next argument, that the trial court erred in refusing to instruct the jury that the insurance company was required to send the notice of cancellation for nonpayment of premium by certified mail, is without merit. The certified mail requirement contained in MCL 500.3224; MSA 24.13224 is specifically made nonapplicable in cases such as this one, in which the cancellation is based on nonpayment of premiums, by MCL 500.3212; MSA 24.13212. The applicable statute in this case is MCL 500.3020; MSA 24.13020, which provides only that the mailing of notice of cancellation, by the insurer to the insured, be with postage fully prepaid.
Plaintiffs finally argue that the presumption created in MCL 500.3020; MSA 24.13020 does not arise when the insured’s last known address may be known to the insurer to be no longer current. This Court rejects plaintiffs’ argument because the statute clearly indicates that the presumption arises when the insurer fulfills the requirement of mailing the notice of cancellation to the insured’s last known address. Evidence that the address was not current, as tending to show the lack of receipt of the notice, is properly admissible in rebuttal to the presumption.
The decision of this Court makes it unnecessary to address this issue raised in the cross-appeal filed by defendant Allstate Insurance Company.
Affirmed.