288 N.W.2d 369 | Mich. Ct. App. | 1979
LOTOSZINSKI
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Michigan Court of Appeals.
Stiles, Fowler, Dudley & Tuttle, for plaintiff.
Fraser, Trebilcock, Davis & Foster, for defendant.
Before: DANHOF, C.J., and N.J. KAUFMAN and D.C. RILEY, JJ.
D.C. RILEY, J.
Following an automobile accident, plaintiff sought recovery under the uninsured motorist provisions of policies which plaintiff and her mother held with defendant. Plaintiff requested arbitration on this matter pursuant to the terms of the policy. The arbitrators concluded that plaintiff was not entitled to recovery. On June 20, 1978, an Ingham County circuit judge entered an order denying plaintiff's motion to vacate the arbitration award. Plaintiff appeals as of right, claiming that the arbitrators exceeded their authority in reaching their decision.
In most instances, an arbitrator's factual or legal conclusions will not be disturbed by the courts. North American Steel Corp v Siderius, Inc, 75 Mich. App. 391, 399-400; 254 NW2d 899 (1977), Detroit Automobile Inter-Insurance Exchange v Ayvazian, 62 Mich. App. 94, 97; 233 NW2d 200 (1975). GCR 1963, 769.9(1), sets out limited exceptions to this rule including instances where the arbitrators have exceeded their authority.
We do not find any exception applicable to the instant case.[1] It was plaintiff who submitted the *167 issue to arbitration, thus negating any possible claim that the award exceeded the scope of the arbitration agreement. See Smith v Highland Park Board of Education, 83 Mich. App. 541, 546; 269 NW2d 216 (1978). Nor can it be said that the arbitrators acted with manifest disregard of the law, as the instant award is not in conflict with any existing Michigan law. See, Detroit Automobile Inter-Insurance Exchange v Ayvazian, supra, at 98. Therefore, the arbitration award will not be vacated.
Affirmed. Costs to defendant.
DANHOF, C.J., concurred.
N.J. KAUFMAN, J. (dissenting).
I find it necessary to lodge my dissent to the position taken by my colleagues. A factual review is in order to highlight the reasons for my decision.
The parties to this proceeding have stipulated to a concise statement of facts. These facts provide, in pertinent part, that the accident out of which this claim arose involved a collision between a motorcycle and an automobile. The plaintiff was a passenger on the motorcycle which was operated by one Ronald Cordon. The automobile was owned by a Richard Hunter and driven by a Norma June Hunter. At the time of the accident on June 3, 1971, the Hunters owned an insurance policy with Auto Owners Insurance Company which provided coverage of $10,000 per person, $20,000 per accident, for total disability connected with the operation of the automobile. This coverage met the statutorily required minimum limits at this time.
Subsequent to the accident, Auto Owners paid *168 Ronald Cordon $10,000 under the Hunters' insurance policy. Thereafter, plaintiff, who was seriously injured in the accident, and her mother, Margaret Lotoszinski, filed suit against the Hunters in Shiawassee County Circuit Court. Plaintiff was awarded $180,000 for her injuries, while her mother obtained her own judgment in excess of $10,000. Auto Owners paid the judgment of Margaret Lotoszinski, thereby exhausting all of the proceeds of the Hunters' insurance policy.
Finding the Hunters uncollectible, the plaintiff, who garnered nothing from the Hunters' insurance policy with Auto-Owners, proceeded against the instant defendant under the uninsured motorist provisions of policies that both the plaintiff and her mother held with defendant. Each of these policies provided for liability coverage in the amount of $10,000 per person, $20,000 per accident, for bodily injury occasioned by the negligence of an uninsured motorist. Further, each of these policies mandated arbitration of all claims made under the uninsured motorist provisions.
Accordingly, plaintiff proceeded to arbitration but was denied recovery under the policies. The majority opinion of the arbitrators emphasized the fact that the tortfeasors were insured up to the minimum requirements and, thus, were not uninsured. Accordingly, irrespective of whether plaintiff actually reaped any benefits from the tortfeasor's exhausted coverage, defendant's uninsured motorist coverage was not applicable.
It is at this point that I must differ from the majority position of my colleagues, which affirmed the arbitrator's decision. It would be unconscionable to deny plaintiff recovery on the facts of this case. In what seems a grossly inequitable distribution, the Hunters' insurance coverage was split up *169 between the operator of the motorcycle and the plaintiff's mother, who presented a purely derivative claim in the first place. Thus, plaintiff, the recipient of a $180,000 jury award to attest to the seriousness of her injuries, was not able to recover from the Hunters' insurer. Now, the majority position denies her recovery under her own policy's uninsured motorist provision because the Hunters were not uninsured motorists. Their policy benefits were exhausted before plaintiff could recoup any coverage for her injuries. To deny recovery at this stage would result in a situation where a plaintiff would be in a better position if injured by a tortfeasor with absolutely no insurance, rather than by one with exhausted benefits. Since uninsured motorist coverage is intended "for the protection of persons insured", the legislative intent would hardly be served by such an interpretation.
Though Michigan law is scarce in this area, this conclusion is supported by decisions from other jurisdictions. Language from the Ohio case of Hanlon v Buckeye Union Ins Co, 73 Ohio Op 2d 267, 271; 324 NE2d 598 (1975), is particularly illuminating:
"It is elementary that uninsured means uninsured insofar as a particular injured person is entitled to recovery thereon; i.e. it is not possible for him to recover any liability insurance monies.
"It would be ridiculous to hold that although a tortfeasor may be a party to a writing an automobile liability coverage policy but the company denies recovery thereon so far as a victim is concerned, that an uninsured policy holder could neither collect on the coverage for which he paid or collect on the liability coverage of the tortfeasor.
"The only logical and reasonable construction that may be given the policies and the statute is one construing *170 them to mean that if the offending driver does not have liability coverage available to the injured insured in limits for bodily injury set forth in R.C. § 4509.20, that the uninsured motorist coverage is applicable to such insured up to the limits stipulated in his policy." (Emphasis in original.)
See also Porter v Empire Fire & Marine Ins Co, 106 Ariz 274, 279; 475 P2d 258 (1970).
This conclusion also finds support in a series of Michigan decisions which have enunciated a state policy in favor of stacking insurance benefits. See Blakeslee v Farm Bureau Mutual Ins Co of Mich, 388 Mich. 464; 201 NW2d 786 (1972), Aetna Casualty & Surety Co v Belcher, 83 Mich. App. 175; 268 NW2d 335 (1978), Santillanes v Banks, 86 Mich. App. 615; 273 NW2d 83 (1977), and Allstate Ins Co v Anderson, 87 Mich. App. 539; 274 NW2d 66 (1978).
In view of the foregoing, I would suggest that the arbitrators' decision was arbitrary and constituted a clear error of law. Therefore, it was outside the scope of the arbitrators' powers to come to this conclusion and this Court may grant relief. See Detroit Automobile Inter-Insurance Exchange v Spafford, 76 Mich. App. 85, 87; 255 NW2d 780 (1977), and GCR 1963, 769.9.
Accordingly, this cause should be remanded to the circuit court. There, the court should determine what percentage, if any, of the Hunters' insurance coverage, which was paid on plaintiff's mother's derivative claim, went to the plaintiff. If none, plaintiff shall be awarded $20,000, to be made up of $10,000 from the uninsured motorist provision of her own policy and $10,000 from her mother's policy. If plaintiff was assigned a percentage of her mother's derivative recovery, the circuit court shall award plaintiff $20,000 less this percentage. *171 This award shall also come from plaintiff's uninsured motorist provision to the extent of $10,000, with the balance made up by plaintiff's mother's uninsured motorist coverage. Upon remand, this Court should no longer retain jurisdiction.
NOTES
[1] Since we do not believe that the arbitrators exceeded their authority in denying plaintiff recovery, we do not reach the merits of this case as does the dissent. Were we to examine this case de novo, we would likely adopt the majority view, as opposed to the minority view advocated by the dissent, which is that an insufficiently insured motorist may not recover from uninsured motorists' funds. See Saari v State Farm Mutual Automobile Ins Co, 72 Mich. App. 278; 249 NW2d 390 (1976), Gorton v Reliance Ins Co, 77 NJ 563; 391 A2d 1219 (1978), Brake v MFA Mutual Ins Co, 525 S.W.2d 109 (Mo App, 1975), Travelers Ins Co v Bouzer, 39 Cal App 3d 992; 114 Cal Rptr 651 (1974), Simonette v Great American Ins Co, 165 Conn 466; 338 A2d 453 (1973).
