Summary
In Lee, the insured plaintiff, who was injured in an automobile accident, had a $50,000 UIM policy with the defendant, his insurer.
Summary of this case from Hanback v. Member Select Ins. Co.Opinion
Docket No. 175571.
Submitted May 21, 1996, at Lansing.
Decided September 10, 1996, at 9:15 A.M.
Jan Paul Benedict, for Blake Lee.
Fraser Trebilcock Davis Foster, P.C. (by C. Mark Hoover and Charyn K. Hain), for Auto-Owners Insurance Company.
Willingham Coté, P.C. (by Ray Foresman and Anthony S. Kogut), for Abood, Abood Rheaume, P.C., and David P. Pasichnyk.
Before: MICHAEL J. KELLY, P.J., and MARILYN KELLY and TAYLOR, JJ.
ON SECOND REMAND
This case is before us a third time, on second remand. We initially reversed the trial court's denial of defendant Auto-Owners' motion for summary disposition and affirmed the trial court's dismissal of Auto-Owners' claim of release. Lee v Auto-Owners Ins Co, 201 Mich. App. 39; 505 N.W.2d 866 (1993), vacated 445 Mich. 906 (1994).
On the first remand, we determined that MCL 500.2254; MSA 24.12254 does not affect the insurance contract between plaintiff Lee and Auto-Owners and that plaintiff was not entitled to arbitration under the policy. Lee v Auto-Owners Ins Co (On Remand), 208 Mich. App. 207; 527 N.W.2d 54 (1994). The Supreme Court, in lieu of granting leave to appeal, vacated our earlier judgment and remanded the case to this Court as on rehearing granted. 451 Mich. 874 (1996). Our Supreme Court directed us to "consider and decide whether a condition of prejudice should be incorporated into the exclusionary clauses contained in the policy of insurance." We conclude that it should not and reverse the trial court's denial of summary disposition in favor of defendant Auto-Owners.
Plaintiff was a passenger in an automobile involved in an accident. He had underinsured/uninsured motorist coverage with defendant Auto-Owners for up to $50,000. Plaintiff's Auto-Owners policy provided that the uninsured motorist coverage "shall not apply . . . to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, . . . shall, without written consent of the Company, make any settlement with any person or organization who may be legally liable therefor." Plaintiff sued the driver and subsequently settled for $20,000, the limits of the driver's policy. Plaintiff entered into this settlement and discharged the driver from all future liability without the knowledge or approval of Auto-Owners.
Following the settlement, plaintiff sought personal injury protection (PIP) and underinsured motorist benefits from Auto-Owners. Auto-Owners paid plaintiff PIP benefits, but denied his claim for underinsured motorist coverage. Auto-Owners asserted that plaintiff's claim for underinsured motorist benefits was barred by his unauthorized settlement with the driver. Plaintiff moved for partial summary disposition to strike Auto-Owners' affirmative defenses. The trial court agreed with plaintiff's position that Auto-Owners would have to show prejudice in order to assert that plaintiff's breach of policy conditions barred him from recovering underinsured motorist benefits.
Michigan courts have consistently upheld policy exclusions barring recovery of benefits where the insured party releases a tortfeasor from liability without the insurer's consent, recognizing that such a release of liability destroys the insurance company's right to subrogation. Flanary v Reserve Ins Co, 364 Mich. 73, 75; 110 N.W.2d 670 (1961); Stolaruk v Central Nat'l Ins Co of Omaha, 206 Mich. App. 444, 448-450; 522 N.W.2d 670 (1994); Adams v Prudential Property Casualty Ins Co, 177 Mich. App. 543, 544-545; 442 N.W.2d 641 (1989); Poynter v Aetna Casualty Surety Co, 13 Mich. App. 125, 128-129; 163 N.W.2d 716 (1968). A plaintiff's settlement with a negligent motorist or other responsible party destroys the insurance company's subrogation rights under the policy and bars the plaintiff's action for uninsured motorist benefits unless the insurer somehow waives the breach of the policy conditions. Adams at 544-545.
The language of Auto-Owners' policy exclusion is unambiguous and does not contravene Michigan law or public policy. Michigan law recognizes that an insured's release of a potentially liable tortfeasor is prejudicial to the insurer because such a release destroys any possibility that the insurer could recoup through its right to subrogation some of the amounts paid. Flanary at 75; Adams at 544-545; Poynter, at 128-129. There is no need to require Auto-Owners to actually prove prejudice resulting from the loss of its right to subrogation. Clear and specific exclusions contained in policy language must be given effect. Allstate Ins Co v Keillor (After Remand), 450 Mich. 412, 417; 537 N.W.2d 589 (1995). The exclusion in Auto-Owners' policy must be enforced as written, without incorporating a condition of prejudice.
We remand to the trial court for entry of an order of dismissal with regard to defendant Auto-Owners Insurance Company.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
TAYLOR, J., concurred.
I respectfully dissent. The breach of a consent to settlement provision, like the breach of any other provision of a contract, must be material in order to adversely affect the parties' rights. Walker Co v Harrison, 347 Mich. 630, 634, 636; 81 N.W.2d 352 (1957).
In this case, plaintiff's failure to comply with the consent to settle clause was not material and did not defeat his right to recover underinsured benefits for which he had paid a premium unless defendant Auto-Owners can show that it was prejudiced.
I would hold that a condition of prejudice should be incorporated into the exclusionary clause in the policy of insurance under consideration. Therefore, I would affirm the trial court's denial of summary disposition for defendant Auto-Owners.