(dissenting). This writer is unable to agree with the opinion filed by the majority in this case, and therefore feels constrained to respectfully dissent. It is obvious that the so-called "trust agreement” is essential to defendant’s prevailing in this case and also is essential to the majority’s resolution on this appeal. It is the opinion of this writer that the subject "trust agreement” is invalid as against public policy; it is therefore not possible to concur *632in an opinion which gives effect to such an agreement.
There can be little doubt that the insurance business is affected with a public interest. Attorney General, ex rel Commissioner of Insurance v Michigan Surety Co, 364 Mich 299; 110 NW2d 677 (1961), Dearborn Nat'l Insurance Co v Commissioner of Insurance, 329 Mich 107; 44 NW2d 892 (1950). The public policy of this state could have been considered in the court below, and should have compelled that court to reach a different result. In fairness to the trial judge it is noted that this issue was not raised before him. This Court has the authority to raise such an issue sua sponte. People, ex rel Attorney General v Koscot Interplanetary, Inc, 37 Mich App 447, 478; 195 NW2d 43, 58 (1972).
In Koscot, supra, 478-480; 195 NW2d 43, 58-59, this Court quoted as authority the following statement from Sipes v McGhee, 316 Mich 614, 623-624; 25 NW2d 638, 642 (1947):
" 'What is the meaning of "public policy”? A correct definition, at once concise and comprehensive, of the words "public policy”, has not yet been formulated by our courts. Indeed, the term is as difficult to define with accuracy as the word "fraud” or the term "public welfare”. In substance, it may be said to be the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.
" 'Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people, — in their clear *633consciousness and conviction of what is naturally and inherently just and right between man and man. It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic. When a course of conduct is cruel or shocking to the average man’s conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be Constitution, statute or decree of court. It has frequently been said that such public policy is a composite of constitutional provisions, statutes and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the cornerstone — the foundation — of all constitutions, statutes, and judicial decisions; and its latitude and longitude, its height and its depth, greater than any or all of them.’ ”
It would seem that the subject agreement which would purport to put an insured in a position of a fiduciary for the insurer, and at the same time allow the insurer to control the time, forum, and amount prayed for in a cause of action based upon an injury to the insured is patently against the principles of public policy. It certainly does not seem inherently just and right. Having regard to the circumstances and the relation between the parties, it would seem that the insurance company has a duty to render fairer treatment to its insured.
Since the majority opinion, although possibly *634adopted reluctantly, has the effect of enforcing an agreement that is against public policy, and that is unjust and unfair in its application as is evidenced by the facts of this case, this writer respectfully dissents. The trust agreement should be declared invalid, thus precluding any reliance upon it by defendant, and the case be remanded for proceedings consistent with this opinion.
This writer so votes.