Detroit Automobile Inter-Insurance Exchange v. Tapp

T. M. Burns, J.

(dissenting). I would not grant *601rehearing in this cause because I believe our previous opinion, published at 131 Mich App 308 (1983), correctly analyzes this dispute. In that opinion this panel found that defendant fit within the family and guest protection provision of the insurance policy in question. This panel held:

"Uninsured motorist provisions must be coextensive with the liability provisions. Pappas v Central National Ins Group of Omaha, 400 Mich 475; 255 NW2d 629 (1977). The primary purpose of this requirement is 'to reduce claims against the motor vehicle accident claims fund’. 400 Mich 480. We believe that the purpose would also be served by including guest provision coverage as well, an interpretation which the arbitrator apparently adopted.” 131 Mich App 311-312.

I do not agree with the majority which now holds that the Supreme Court’s decision in Pappas, supra, is strictly limited to its factual situation and policy considerations behind that decision should be ignored. In Pappas, the Supreme Court held that the uninsured motorist provision must be at least coextensive with the policy’s liability provision. In Pappas, the Court noted a very important policy reason for extending liability under the uninsured motorist provision. I believe that the majority now errs in interpreting Pappas as holding that an uninsured motorist provision cannot be extended beyond a liability provision.

In our previous opinion we correctly noted that the policy involved in the instant case would allow for an interpretation that the family and guest protection provision was coextensive with the uninsured motorist provision. While plaintiff set forth exclusions in the policy, it failed to exclude coverage under the accident and guest protection provisions for accidents involving uninsured mo*602torists. Considering that family and guest protection coverage is optional, I feel that it would be more fair to hold that it is generally coextensive with an uninsured motorist provision unless the insurer specifically states otherwise in the policy. The majority’s current interpretation of the policy severely restricts this provision’s coverage without giving any warning to the insured.

For these reasons, I believe we correctly affirmed the circuit court’s order in our decision published at 131 Mich App 308. Accordingly, I would not grant rehearing and reverse our decision.