162 N.W.2d 94 | Mich. Ct. App. | 1968
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
BROWNING.
Michigan Court of Appeals.
Davidson, Gotshall, Kelly, Halsey & Kohl (Terrance M. Lynch, of counsel), for plaintiff.
Sheldon L. Miller, for defendant Ulysesses White.
Frances R. Avadenka, for defendants Browning and Hunter.
*633 PER CURIAM:
On June 28, 1962, Ulysesses W. White, a pedestrian, brought an action for damages in the Wayne county circuit court claiming he was struck down on December 24, 1961, by a vehicle owned by Morris W. Browning, and purportedly driven by Joyce Hunter. Therein he claimed that at the time of the accident he was walking along the berm of Van Born road in Wayne county, Michigan. Defendants Hunter and Browning denied White's claim and alleged that the accident occurred when White staggered onto the highway into the side of the vehicle.
The vehicle was insured by Nationwide Mutual Insurance Company, plaintiff herein. It was not notified of the accident until approximately six months after the occurrence of the accident and because of this fact, requested and received a non-waiver agreement from (Hunter and) Browning.
After the pretrial but before the action of White against Hunter and Browning was set for trial, Hunter informed plaintiff herein that she had not been driving the vehicle at the time of the accident, thereby contradicting her previous statements and discovery testimony. Subsequently Browning also indicated that in fact he had been the driver of the vehicle at the time of the accident.
Plaintiff herein filed an action for declaratory judgment relieving it of liability claiming prejudice amounting to a breach of the terms of its insurance contract because it had not received prompt notification of the accident and the facts regarding who was the driver of the vehicle misrepresented by Hunter and Browning.
In the declaratory judgment action, the trial judge found that there had been a breach of the insurance policy as claimed by plaintiff, but at that time failed to find prejudice resulting to plaintiff and therefore *634 concluded that plaintiff was required to fulfill its contractual obligations to Browning according to the terms of the insurance policy. Plaintiff has appealed the trial court's determination.
In view of the fact that the matter of determining whether the actions of Hunter and Browning were prejudicial to plaintiff herein may only be conclusively shown after the trial of the main case we find that the declaratory judgment was prematurely entered. We therefore set the declaratory judgment aside and remand the matter to the trial court for determination after the main case is heard.
No costs.
T.G. KAVANAGH, P.J., and HOLBROOK and BEER, JJ., concurred.
