333 N.W.2d 298 | Mich. Ct. App. | 1983
MOULTRIE
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
Michigan Court of Appeals.
Theodore S. Andris, P.C. (by Theodore S. Andris and Philip R. Reed), for plaintiffs.
Dickinson, Mourad, Brandt, Hanlon & Becker (by Richard Haskins), and Gromek, Bendure & Thomas (by James G. Gross and Judith A. Curtis), for defendant.
Before: D.C. RILEY, P.J., and D.F. WALSH and WAHLS, JJ.
D.C. RILEY, P.J.
This case involves an appeal from a judgment on an arbitration award and from a subsequent order modifying that judgment. The merits of the award itself are not challenged.
Plaintiffs were involved in an automobile accident on March 1, 1976, with an individual named White. On November 11, 1978, plaintiffs commenced a lawsuit against White, seeking damages for injuries caused by the accident. Sometime thereafter, plaintiffs discovered that White was uninsured. On August 10, 1979, plaintiffs filed a *406 demand for arbitration of a disputed claim under the uninsured motorist coverage provisions of their insurance policy with defendant. That demand was received by Detroit Automobile Inter-Insurance Exchange (DAIIE) on August 13, 1979. On February 6, 1981, the arbitrators rendered an award in favor of plaintiff Mary Moultrie in the amount of $11,500. Plaintiff John Moultrie was awarded no damages.
Sometime during the spring of 1981, plaintiffs filed a motion for an order confirming the arbitration award and a motion for entry of judgment. Plaintiffs brought those motions under the docket number assigned to their action against Mr. White, the individual involved in the accident, but named DAIIE as defendant. On October 9, 1981, the trial court granted plaintiffs' motions and entered an order confirming award of arbitrators and a judgment on award of arbitration which included an award of interest at five percent per annum from August 13, 1979, the date of defendant's receipt of plaintiffs' demand for arbitration, as well as costs.
The trial court subsequently granted plaintiffs' motion for rehearing and on October 9, 1981, it entered an order modifying its earlier judgment to "provide for interest at the rate established by MCL 600.6013; MSA 27A.6013 of 6% [percent] per annum from" the date of plaintiffs' filing of their complaint against White, the uninsured motorist.
Defendant appeals as of right alleging that the trial court erred as a matter of law in awarding interest, pursuant to MCL 600.6013; MSA 27A.6013, on the arbitration award from the date that plaintiffs filed their complaint against White, as it was not a party to that action. We agree.
In Osinski v Detroit Automobile Inter-Ins Exchange, *407 69 Mich. App. 426, 428; 245 NW2d 76 (1976), this Court reversed an award of interest on an arbitration award, pursuant to MCL 600.6013; MSA 27A.6013, from the date of filing the arbitration award, noting:
"By its express terms § 6013 applies only to a money judgment recovered in a `civil action' and permits interest to accrue from the date of filing the complaint. A civil action is commenced only `by filing a complaint with the Court'. GCR 1963, 101; MCL 600.1901; MSA 27A.1901. In the instant case the arbitration proceedings were instituted by a filing of a claim for arbitration with the insurance company not a complaint with the court. The pre-circuit court proceedings simply were not the equivalent of civil action, and therefore § 6013 does not authorize the payment or receipt of interest on an arbitration award entered prior to the filing of a complaint with the circuit court."
The Court went on to hold that, based on MCL 438.7; MSA 19.4 and MCL 438.31; MSA 19.15(1), the proper interest on the arbitration award was five percent from the date the award was made and not from the date of filing the demand for arbitration. Osinski, supra, pp 428-430. Accord Reinshuttle v Aetna Life & Casualty Ins Co, Inc, 72 Mich. App. 74; 248 NW2d 671 (1976); Babayan v Detroit Automobile Inter-Ins Exchange, 121 Mich App ___; ___ NW2d ___ (1982). We are in accord with those decisions and, therefore, we hold that plaintiffs were entitled to interest on the arbitration award at the rate of five percent per annum from February 6, 1981, the date of the arbitration award.
Moreover, we note that plaintiffs' reliance on an unpublished opinion of this Court is misplaced since unpublished opinions are of no precedential *408 value. See Borgess Hospital v Berrien County, 114 Mich. App. 385, 386, fn 1; 319 NW2d 354 (1982).
Inasmuch as defendant was not a party to plaintiffs' action against the uninsured motorist, White, it would be inappropriate to use the date of filing of that complaint as the date from which interest should commence.
Further, we reject plaintiffs' position that under the provisions of their insurance contract defendant was obligated to pay interest pursuant to MCL 600.6013; MSA 27A.6013. Assuming, without deciding, that this issue was properly before the trial court, we would hold that the court erred in its interpretation of the contract.
The contract in question obligated the defendant to pay "all sums the insured shall be legally entitled to recover as damages". Defendant correctly points out that the term "damages" does not include prejudgment interest. Dittus v Geyman, 68 Mich. App. 433, 438-439; 242 NW2d 800 (1976), lv den 397 Mich. 837 (1976). We conclude, therefore, that under the provisions of the insurance contract, defendant was not obligated to pay interest. Plaintiffs are only entitled to recover interest pursuant to MCL 438.7, 438.31; MSA 19.4, 19.15(1).
Defendant also contends that the trial court erred as a matter of law in awarding plaintiffs the costs of the arbitration proceedings. We disagree. An identical claim was rejected by this Court in its recent decision in Babayan, supra, wherein the Court held that MCL 600.2401 et seq.; MSA 27A.2401 et seq., authorizes circuit courts to award certain costs incurred in special proceedings. GCR 1963, 769.12 provides that costs in confirming an arbitration award will be taxed as in all civil actions, which, under GCR 1963, 526.1, means that costs will be allowed the prevailing party. Neither *409 MCL 600.2401 et seq.; MSA 27A.2401 et seq., nor GCR 1963, 769.12, expressly limit allowable costs to those incurred after the filing of the petition in circuit court, and subrule 769.12 expressly provides that the circuit courts may allow "for the fees and expenses of the arbitrators".
We conclude that the trial court did not err in awarding costs as part of its order confirming the arbitration award. This case is remanded for modification of the award of interest pursuant to MCL 438.31; MSA 19.15(1).
Reversed in part and affirmed in part.
No costs, neither party having prevailed in full.
WAHLS, J., concurred.
D.F. WALSH, J. (concurring in part, dissenting in part).
I concur in those portions of the majority opinion which reverse and modify the interest award made by the trial court in this case. In my judgment, however, the trial court's award of the cost of the arbitration proceedings should also be reversed.
In Dittus v Geyman, 68 Mich. App. 433, 438; 242 NW2d 800 (1976), we cited the well-established rule that costs are recoverable only when there is statutory authority providing for the awarding of costs. The fact that MCL 600.2401 et seq.; MSA 27A.2401 et seq., does not expressly limit allowable costs to those incurred after the filing of the petition in circuit court does not amount to a statutory authorization of an award of costs incurred prior to the filing of the petition. Nor, in my opinion, does the word "proceedings" in GCR 1963, 769.12, refer to anything other than the judicial proceedings involved in the confirmation of the award. See also 5 Honigman & Hawkins, *410 Michigan Court Rules Annotated (2d ed), p 457, wherein the authors state:
"The court may tax the costs of the judicial proceedings in relation to arbitration as in other civil actions. Rule 526." (Emphasis added.)
Although the rule provides and the Honigman & Hawkins comments explain that, if the award fails to provide for the fees and expenses of the arbitrators, the court can tax them as provided by law in cases of reference, it does not provide that the expenses of the parties in the arbitration proceeding may be taxed as costs.
I would reverse the trial court's award of the costs of the arbitration proceeding.
