Opinion
Docket No. 73760.
Decided June 19, 1984. Leave to appeal applied for.
Baxter Hammond (by Michael D. Wade and Elizabeth F. Rupprecht), for plaintiff.
Twohey, Maggini, Muldoon, Mudie Sullivan (by David Schoolenberg), for defendants Patricia Parmelee and Russell Parmelee, Jr.
Ward, Schenk Boncher (by Dan E. Bylenga, Jr.), for Russell Parmelee, III.
Plaintiff appeals as of right from a declaratory judgment in defendants' favor determining plaintiff's liability under a no-fault automobile insurance policy issued to defendants by plaintiff.
This case arises out of an automobile accident which occurred on October 14, 1979. On that date Russell Parmelee, III, was operating a vehicle owned by his father, Russell Parmelee, Jr., with his mother, Patricia Parmelee, riding as a passenger. The car went out of control and struck a tree, causing Mrs. Parmelee to be injured. Patricia and Russell Parmelee, Jr., filed an action asserting a claim for personal injuries suffered by Mrs. Parmelee as a result of the accident. During the course of the action the question arose concerning insurance coverage available in the form of liability protection for Russell Parmelee, III, and for compensation for the injuries suffered by Mrs. Parmelee.
At the time of the incident Russell Parmelee, Jr., and Patricia Parmelee were named insureds on a policy of automobile liability insurance with plaintiff. The residual bodily injury liability limits of this policy were $100,000/$300,000. The insurance policy contained an exclusionary clause which stated that liability protection does not apply to "bodily injury to any named insured * * *". The effective dates of the policy were May 25, 1979, to November 25, 1979.
Plaintiff filed a declaratory judgment action seeking a determination of its rights and liabilities under the insurance policy. Plaintiff sought to have two problems resolved through the action. The first was whether the exclusionary clause was valid and enforceable. If the exclusionary clause was found to be invalid, plaintiff sought to determine the limits of its liability under the policy. Citing State Farm Mutual Automobile Ins Co v Shelly, 394 Mich. 448; 231 N.W.2d 641 (1975), plaintiff argued that, should the exclusionary clause be invalidated, the limits of the policy should be the minimum statutory limit imposed by MCL 500.3009; MSA 24.13009. Thus, it was plaintiff's position that its liability under the policy should be $20,000/$40,000 as opposed to $100,000/$300,000, the contractual limit contained in the policy.
At the hearing held in the matter on August 15, 1983, the trial court held that the exclusionary clause which stated that there would be no coverage of injuries to named insureds was invalid. The court further held that the contractual policy limits would govern and, therefore, the limits of plaintiff's residual bodily injury liability would be $100,000/$300,000.
Plaintiff appeals as of right from the trial court's ruling determining the limits of plaintiff's liability under the policy. On appeal, plaintiff does not contest the propriety of the court's ruling that the exclusionary clause is invalid.
In State Farm Mutual Automobile Ins Co v Sivey, 404 Mich. 51; 272 N.W.2d 555 (1978), the Supreme Court declared void as against public policy an exclusionary clause identical to the one involved in the instant case. Sivey was decided December 26, 1978. The policy at issue herein ran from May 25, 1979, to November 25, 1979. Plaintiff, therefore, should have been aware that the policy at issue contained a clause that, if not totally void, was certainly ambiguous in the instant situation where defendants had paid for a policy containing extra residual bodily injury coverage of $100,000/$300,000 but the law, MCL 500.3009(1); MSA 25.13009(1), required limits of $20,000/$40,000. Where an ambiguity exists, the policy must be liberally construed in favor of the insured and against the insurer who drafted it. Dittus v Geyman, 68 Mich. App. 433; 242 N.W.2d 800 (1976); Weaver v Michigan Mutual Liability Co, 32 Mich. App. 605; 189 N.W.2d 116 (1971); Citizens Ins Co of America v Detloff, 89 Mich. App. 429; 280 N.W.2d 555 (1979); Citizens Ins Co of America v Tunney, 91 Mich. App. 223; 283 N.W.2d 700 (1979). We, therefore, affirm the judgment of the trial court that the contractual policy limits of $100,000/$300,000 apply in the instant case.
Affirmed.