Husted v. Auto-Owners Insurance

Kelly, J.

(dissenting). I disagree with the majority that the no-fault act’s residual liability coverage provision does not require residual liability coverage under *518the circumstances of this case. I would reverse the judgment of the Court of Appeals and hold that Auto-Owners must provide coverage here. Public policy underlying the act favors a minimum level of coverage, and enforcement of the exclusion on the facts of this case would be unconscionable.

The majority’s reliance on Citizens Ins Co of America v Federated Mut Ins Co,1 and State Farm Mut Automobile Ins Co v Ruuska,2 is misplaced. Those cases involved insured vehicles. This case does not. In the past, we have examined the validity of exclusions from nonowned coverage under the no-fault act. However, we have never addressed whether a nonowned, business-use exclusion may deny portable residual liability coverage where an employee drives his employer’s uninsured vehicle in good faith, believing it insured.

In Ruuska, supra, we examined whether the no-fault act precluded enforcement of a nonowned vehicle provision excluding coverage for an automobile owned by any relative residing in the same household. In two separate opinions, we held that the exclusion was unenforceable.3 Three justices, in the lead opinion authored by Justice Williams, held that the no-fault act precluded an insurer from denying liability on the basis that (1) the nonowned vehicle was owned by a relative residing in the same household as the insured or (2) the vehicle was furnished or available for the frequent or regular use of the insured.

*519We find such an exclusion repugnant to the clear directive of the no-fault act requiring that a policy purchased pursuant to that act provide residual liability coverage for the use of a motor vehicle. [Id. at 336.]

In a separate opinion, Justice Levin would have held that the no-fault act does not require residual liability coverage on all nonowned vehicles a person may drive. He noted, however, that the act might require coverage when the insured drives an uninsured nonowned vehicle. He explained:

The no-fault act does not require residual liability insurance covering all vehicles a person may drive. Residual liability insurance is required for residual tort liability arising out of the ownership, maintenance or use of the vehicle in respect to which a policy is required to be maintained and in effect. An insurer is not required by the no-fault act to provide portable coverage when the owner drives another insured vehicle.8
[Id. at 342-343.]

Likewise, in Citizens Ins Co, supra, the question left open in Ruuska was not addressed. Citizens involved a priority question between two insurers. In that case, the insured was driving another insured vehicle. This Court held that the insurer of the vehicle involved in the accident is obligated to provide liability coverage before the parties may turn to the driver’s personal no-fault insurer. Citizens is not controlling in the present case, which does not involve a priority issue.

The majority takes the language in Citizens out of context and misapplies it to the instant case. The *520owner or registrant of the vehicle has the primary duty to provide residual liability insurance. It does not follow that the Legislature did not intend to require another entity to take up this duty when the owner or registrant fails to provide coverage. I would hold that the Legislature did so intend.

I find merit in plaintiffs argument that, when read together, §§ 3009, 3131, and 3135 mandate that an automobile policy provide residual liability coverage. It must be at a minimum level of $20,000 for the insured’s use of any motor vehicle in the state of Michigan, i.e., portable coverage. While this Court has allowed exclusions for nonowned vehicles, exclusions that result in no residual liability coverage at all, as where the involved vehicle was uninsured, should be deemed invalid.4

The act’s plain language, while not expressly precluding Auto-Owners’ exclusion, reveals a policy favoring a minimum level of coverage. As explained, § 3131 requires the minimum $20,000 coverage as established in § 3009 for automobile liability retained by § 3135. Key to our analysis, then, should be whether § 31355 reveals legislative intent to afford the minimum statutory coverage for an insured’s use of *521any motor vehicle in the state.6 I would hold that it does.

The majority asserts that the Legislature’s use of the word “a” in § 3135 precludes the use of the more unrestrictive “any” in its place. However, the plain and commonly understood meaning of the phrase “a motor vehicle” is “any motor vehicle.” The word “a” is an indefinite article that denotes “a single but unspecified . . . thing.”7 Its commonly understood meaning comports with the term “any.”8 The Legislature’s choice of the word “a” before “motor vehicle” instead of the word “the” must be given effect. “The” is a definite article that denotes “particular, specified . . . things.”9

If the Legislature had intended that the $20,000 minimum residual liability coverage be required only on the insured’s owned vehicle, it could have easily chosen language to effectuate that intent. Instead, the language chosen reveals a legislative policy decision favoring coverage. Consequently, where, as here, no other coverage is available, the act militates in favor of coverage.

*522This interpretation is supported by at least one high court opinion from a sister state having statutory language regarding minimum mandatory liability coverage similar to our own. Montana’s mandatory liability coverage statute states in pertinent part that every owner

shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle .... [Allstate Ins Co v Hankinson, 244 Mont 1, 3; 795 P2d 480 (1990).]

The Hankinson court interpreted this provision as requiring mandatory liability coverage for use of any motor vehicle. Consequently, it held that an exclusion in the policy that would have negated the minimum coverage requirement for a nonowned vehicle driven without the owner’s permission was void. As the court explained:

In this case, the effect of the non-owned auto provision’s qualifying language “with the owner’s permission” is to provide less than the minimum mandatory coverage required by [Montana Code Annotated] § 61-6-301.
Our prior decisions interpreting insurance policies . . . establishes [sic] that when policy language excludes coverage otherwise statutorily mandated then that policy language is void as contrary to public policy. [Id. at 4.]

We have held, similarly, that an exclusion in a policy that conflicts with the mandatory coverage requirements of the Michigan no-fault act is void as contrary to public policy. Citizens Ins, supra at 232. Consequently, as in Hankinson, Auto-Owners’ exclusion, that conflicts with the act’s policy favoring mini*523mum coverage on any vehicle operated in Michigan, is void as contrary to public policy.

This conclusion comports with our earlier decisions holding that the no-fault act insures persons, not just vehicles. Clevenger v Allstate Ins Co, 443 Mich 646; 505 NW2d 553 (1993); Lee v DAIIE, 412 Mich 505; 315 NW2d 413 (1982). The purpose of the act is to ensure minimum mandatory coverage to persons. Hence, it requires portable residual liability coverage where, as here, no other coverage existed and the insured was driving the vehicle in the good-faith belief that it was insured.

I would hold that there is a distinct difference between the decision in this case and previous decisions upholding unambiguous exclusions when the vehicle was otherwise insured. See Powers v DAIIE, 427 Mich 602, 615-616; 398 NW2d 411 (1986). This Court has allowed such exclusions where the effect is to determine the priority of coverage. However, the public policy underlying the act, as revealed by its plain language, militates against enforcement of the exclusion where there is no other coverage. In this regard, I find persuasive the words of Justice Levin, in Ruuska, supra at 351:

The [nonowned vehicle] exclusion from coverage is apparently designed to guard against a person having coverage on one vehicle and no coverage, or less coverage, on another vehicle owned by him or regularly used by him. The exclusion seeks to protect the insurer against a policyholder failing to buy coverage on another vehicle he owns. To be effective, the provision must exclude an uninsured vehicle registered in the name of another that the insured regularly uses — a leased automobile. The exclusion is to this extent clearly reasonable and conscionable. [Emphasis in original.]
*524The exclusion is written so broadly, however, that it encompasses situations beyond the evil it is designed to guard against. In seeking to protect itself against overreaching by the insured, the insurer has overwritten the exclusion and failed to protect the insured who acts in good faith. The exclusion is aimed at a particular evil; it goes beyond reason and good conscience to exclude liability beyond the need for the exclusion.
When a court limits such an exclusion, it is subject to the charge that it is rewriting the policy. Implicit in the charge is the assumption that the insurer can draft the policy as it sees fit. Its power to do so is, however, restricted by the doctrine[] of unconscionability ....

Justice Levin’s comments in Ruuska apply equally in this case.

Further supporting a finding of unconscionability here is the fact that an employee driving his employer’s vehicle often has no way of being certain that the vehicle is insured. Apparently, the truck that Mr. Dobbs drove was uninsured because his employer had failed to pay the premiums, allowing the policy to lapse. The circuit court, on remand from this Court, determined that Mr. Dobbs did not know, and could not have known, that the truck was uninsured. To allow such an employee’s personal insurer to deny coverage for the statutory minimum amount on the basis of a business-use exclusion leads to an unconscionable result.

This Court’s holding potentially exposes to unlimited liability all employees in this state whose occupations require that they drive vehicles owned by their employers. These employees will frequently have relied in good faith on their employers to obey the law and insure their vehicles. Consequently, I would hold, on the facts of this case, that the doctrine of *525unconscionability requires a decision that Auto-Owners’ business-use exclusion is void.

In conclusion, defendant Auto-Owners’ business-use exclusion should be found void where, as here, the insured was driving his employer’s uninsured vehicle in good faith. Public policy, as gleaned from the language of the Michigan no-fault act, requires a minimum of $20,000 in residual liability coverage under such circumstances. An unambiguous business-use exclusion may be enforced if the involved vehicle is otherwise insured. However, when an employee drives his employer’s uninsured vehicle believing it insured, the act and the doctrine of unconscionability render the exclusion void as against public policy.

For these reasons, I respectfully dissent.

Brickley and Cavanagh, JJ., concurred with Kelly, J.

448 Mich 225; 531 NW2d 138 (1995).

412 Mich 321; 314 NW2d 184 (1982).

Justices Fitzgerald and Moody concurred with Justice Williams. Justice Levin concurred in the result.

Other provisions and policies of the act are implicated where a person insured or covered by a no-fault policy drives an uninsured vehicle. No opinion is intimated in that regard._

The majority also maintains that the essential insurance act, MCL 500.2118(2)®; MSA 24.12118(2)®, supports defendant’s position. Contrary to this assertion, § 3009 of the no-fault act specifically retains the requirement of residual liability coverage under the circumstances of this case. Normally, an insurer may write a business-use exclusion into a policy. However, an harmonious reading of § 3009 and § 2118(2)® leads to the conclusion that an insurer may not do so if the exclusion negates the residual liability coverage.

Section 3135 states that tort liability is retained for the “ownership, maintenance, or use of a motor vehicle . . . .” MCL 500.3135(1); MSA 24.13135(1) (emphasis added).

Section 3009 also uses the phrase “use of a motor vehicle” when explaining the minimum $20,000 coverage requirement.

The American Heritage Dictionary (3d ed), p 1.

Id. In another context, we noted that the commonly understood meaning of “a” and “any” are one and the same. In Powers v DAIIE, 427 Mich 602; 398 NW2d 411 (1986), we considered several cases in which the insurers refused to provide residual liability coverage. The reason given was that the vehicles involved were neither “owned” nor “nonowned” automobiles as defined in the policies. Comparing the language in two policies, one providing coverage for “a non-owned automobile,” and the other for “any nonowned automobile,” we stated “[w]e do not find the difference between the use of ‘a’ and ‘any’ to be significant.” Id. at 633, n 9.

The American Heritage Dictionary, n 7 supra at 1859.