Opinion
Docket No. 77-4997.
Decided May 23, 1978. Leave to appeal applied for.
Willingham, Cote, Hanslovsky, Griffith Foresman, P.C., for plaintiff.
Mainolfi, McGraw Borchard, for defendant Home Mutual Insurance Company.
Before: J.H. GILLIS, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.
Defendant appeals from a summary judgment granted to plaintiff in a declaratory judgment action. On October 9, 1974, Mrs. Taylor was killed while a passenger in her own car which was being driven by Rick Kirgis when the car left the road and struck a tree. At the time of the accident, Mrs. Taylor had in effect an insurance policy issued to her by plaintiff. Because Rick Kirgis resided with his father at the time of the accident, he was covered under his father's policy issued by Home Mutual Insurance Company.
Decedent's husband was appointed special administrator of her estate, and he commenced suit in Bay County Circuit Court on May 12, 1975, seeking relief against, inter alia, Rick Kirgis. Because Mrs. Taylor's insurance policy extended coverage to permissive users of her vehicle, Mr. Kirgis demanded that plaintiff defend him in that action.
Plaintiff then filed a complaint for a declaratory judgment claiming that it had no duty to defend or insure Mr. Kirgis because of an exclusion in the policy issued to Mrs. Taylor which provided:
"Exclusions — Section 1
"This insurance does not apply under:
* * *
"(h) Coverage A [residual liability insurance], to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured."
The policy defined insured as follows:
"Insured — The unqualified word `insured' includes * * * (4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION."
Defendants answered the complaint, and plaintiff then filed a motion for summary judgment under GCR 1963, 117.2(3), claiming that there were no material issues of fact, but only questions of law. Briefs were filed, and following oral argument and supplemental briefs, the court entered an opinion granting the motion for summary judgment.
We adopt Judge (now Justice) LEVIN'S dissenting opinion in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich. App. 513, 524; 194 N.W.2d 193 (1971), as well as the well-written opinion in Allstate Insurance Co v Defrain, 81 Mich. App. 503; 265 N.W.2d 392 (1978), and, on the basis of those two cases, we reverse and hold that plaintiff is under a duty to defend.
Costs to appellant.