Tahash v. Flint Dodge Co.

Beasley, J.

(dissenting). I respectfully dissent.

The active negligence which caused the damages giving rise to this litigation was that of Travelers’ insured, Gloria D. Martorelli. The liability imposed upon Continental’s insured, Flint Dodge, was derivative and passive, arising out of their ownership of the vehicle driven by Martorelli, with Flint Dodge’s consent, in the collision.

As between Travelers’ insured (Gloria Martorelli) and Continental’s insured (Flint Dodge), Martorelli was liable to Flint Dodge. Any doubt on that score was resolved by Tahash v Flint Dodge Co, 399 Mich 421; 249 NW2d 110 (1976). Travelers insured Martorelli for public liability and property damage arising out of her negligent driving. As insurer for Flint Dodge, Continental paid the joint judgment and costs awarded Tahash. Continental is entitled to recover that amount from Martorelli. See 399 Mich 421 (1976). Continental may garnishee Travelers to recover that amount.

The remaining issues appear to be an irrelevant smokescreen, unnecessary to a decision in this action. Whether or not the so-called escape clause in Continental’s policy is invalid and unconstitutional is irrelevant. Continental recovers because it stands in the shoes of its insured, Flint Dodge, *478not because of any escape clause in its insurance policy.

Neither is the excess clause in Travelers’ policy relevant. Travelers is liable because its insured, Gloria Martorelli, was primarily and directly responsible for the damages, and Travelers insured her for such losses. The excess clause is inapplicable.

The fact that Continental chose to satisfy the deserved Tahash judgment should be applauded rather than now used as a device by the insurer of the guilty party to avoid liability.

I would affirm.