Order Michigan Supreme Court
Lansing, Michigan
March 12, 2010 Marilyn Kelly,
Chief Justice
137353 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
MARY I. BERKEYPILE, Diane M. Hathaway,
Plaintiff-Counter- Justices
Defendant-Appellee,
v SC: 137353
COA: 274177
Jackson CC: 2006-001026-NI
WESTFIELD INSURANCE COMPANY,
Defendant-Counter-
Plaintiff-Appellant,
and
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendant.
_________________________________________/
On December 8, 2009, this Court heard oral argument on the application for leave
to appeal the August 12, 2008 judgment of the Court of Appeals. On order of the Court,
the application is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE
the Jackson Circuit Court’s order granting summary disposition to defendant Westfield
Insurance Company. The Court of Appeals erred by not considering paragraph E(1)(a) of
the policy’s uninsured motorist coverage, which provides that “[i]f there is other
applicable insurance available under one or more policies or provisions of coverage . . .
[t]he maximum recovery under all coverage forms or policies combined may equal but
not exceed the highest applicable limit for any one vehicle under any coverage form or
policy providing coverage on either a primary or excess basis.” This provision limits the
insured’s maximum recovery to the highest policy limit of any single policy available. In
the instant case, the highest policy limit of any single policy available was $300,000, the
limit of both the Parshall and the Westfield policies. Because plaintiff recovered a total
of $332,500 in settlements with the underinsured drivers, an amount higher than the
highest policy limit of any single policy available, plaintiff is not entitled to additional
recovery under the Westfield policy’s uninsured motorist coverage. Furthermore, the
Court of Appeals erred by ruling that paragraph A(2) of the policy does not apply to this
2
case. Paragraph A(2) of the policy applies whenever there is an “accident” with an
“underinsured motor vehicle,” as that term is defined in paragraph F(3)(b) of the policy,
even if, as in this case, there are multiple uninsured and underinsured vehicles involved
and the insured asserts claims against the drivers of the uninsured and underinsured
vehicles in separate actions. Because the accident in this case involved underinsured
motor vehicles included in the definition of uninsured vehicles under paragraph F(3)(b)
of the policy, paragraph A(2) applies here.
KELLY, C.J., and HATHAWAY, J., would deny leave to appeal.
WEAVER, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 12, 2010 _________________________________________
0309 Clerk