Auto-Owners Insurance v. Michigan Mutual Insurance

Corrigan, J.

(concurring in part and dissenting in part). I concur in part n of the majority opinion without reservation regarding Docket No. 184788. First, the insurance contract had not come into effect when the accident occurred. Second, defendant Michigan Mutual Insurance Company was not bound by defendant Central Insurance Center’s actions because Central did not act as an agent for Michigan Mutual and had no authority to bind Michigan Mutual.

*218I respectfully dissent, however, from the majority’s implicit conclusion in part I regarding Docket No. 184812. I disagree that plaintiff Auto-Owners Insurance Company has a cause of action as subrogee against the insured’s agent, Central, under the no-fault insurance act, MCL 500.3101 et seq.) MSA 24.13101 et seq.

Plaintiff Auto-Owners asserts that MCL 500.3175(2); MSA 24.13175(2) permits it to maintain a cause of action for reimbursement against Central because Central failed to bind properly no-fault insurance coverage from Michigan Mutual. MCL 500.3175(2); MSA 24.13175(2) provides in part:

The insurer to whom claims have been assigned shall preserve and enforce rights to indemnity or reimbursement against third parties and account to the assigned claims facility therefor and shall assign such rights to the assigned claims facility upon reimbursement by the assigned claims facility.

I cannot conclude that the above statutory language creates a separate cause of action for insurers against an insured’s agent.

Whether plaintiff has a cause of action under the statute presents a question of statutory interpretation. Grand Traverse Co v Michigan, 450 Mich 457, 463-464; 538 NW2d 1 (1995). Statutory interpretation is a question of law, which we review de novo. Attorney General ex rel Dep’t of Natural Resources v Michigan Property & Casualty Guaranty Ass’n, 218 Mich App 342, 344; 553 NW2d 700 (1996).

When courts construe statutory meaning, their primary goal is to ascertain and give effect to legislative intent. Farrington v Total Petroleum, Inc, 442 Mich *219201, 212; 501 NW2d 76 (1993); State Treasurer v Schuster, 215 Mich App 347, 351; 547 NW2d 332 (1996). This Court first examines the specific statutory language to determine the legislative intent. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to intend the meaning that the statute plainly expresses. In re Austin Estate, 218 Mich App 72, 75; 553 NW2d 632 (1996). Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Id. at 76.

MCL 500.3175(2); MSA 24.13175(2) allows insurers to enforce rights to indemnity or reimbursement against third parties. As the insurer, plaintiff contends that it may enforce rights to indemnity or reimbursement against Central, the third party. Plaintiff, however, had no direct relationship with Central. Thus, any enforceable rights asserted by plaintiff must arise from the relationship between plaintiffs insured and Central. As the majority opinion points out, plaintiff acquired all the rights and claims of its insureds, the injured third-party claimants. See Citizens Ins Co of America v Buck, 216 Mich App 217, 225; 548 NW2d 680 (1996). In essence, plaintiff stands in the shoes of the insureds, the claimants, and plaintiffs rights are limited to those that the claimants could assert. Allstate Ins Co v Snarski, 174 Mich App 148, 155; 435 NW2d 408 (1988).

Further, the statute itself limits plaintiffs rights. “ ‘Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.’ ” Monroe Beverage Co, Inc v Stroh Brewery Co, *220454 Mich 41, 45; 559 NW2d 297 (1997) (citation omitted). Under the statute, an insurer may assert only two rights: (1) indemnity and (2) reimbursement. The injured claimants already were made whole by plaintiffs payment of no-fault insurance benefits. The injured claimants are not entitled to additional monies; hence, they have no rights to indemnity or reimbursement against Central. Because the insured claimants do not have such rights, plaintiff does not have such rights to assert on their behalf. Under these facts, neither plaintiff nor the injured claimants have rights to indemnity or reimbursement from Central. Accordingly, the statute does not confer standing upon plaintiff.

My dissent is limited to the interpretation of the no-fault insurance act. Although I decline to expand the no-fault insurance act to accommodate an insurer’s action in indemnity or reimbursement under these facts, I make no comment on the viability of an action in negligence or under a third-party beneficiary theory.

Plaintiff further argues that MCL 500.3175(2); MSA 24.13175(2) creates an independent right of action under these circumstances. The common law recognizes no cause of action in indemnity or reimbursement on these facts.1 If the common law provides no right to relief, and the right to such relief instead is provided by statute, then a plaintiff has no private cause of action for enforcement of the right unless: (1) the statute expressly creates a private cause of action or (2) a cause of action can be inferred *221because the statute provides no adequate means of enforcement of its provisions. Bell v League Life Ins Co, 149 Mich App 481, 482-483; 387 NW2d 154 (1986). Accordingly, unless the statute expressly created the private cause of action or the cause of action may be inferred because the statute does not provide adequate means to enforce its provisions, courts must dismiss a private cause of action under a statute creating a new right. Forster v Delton School Dist, 176 Mich App 582, 585; 440 NW2d 421 (1989).

The statute does not create expressly a private cause of action. As reflected in the statutory language, MCL 500.3175(2); MSA 24.13175(2) protects existing causes of action — it does not create a new cause of action. The statute refers to rights that already exist — indemnity or reimbursement. The statute does not expand the available rights. See Bell, supra. As a result, the second question arises: whether a private cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. Because the statute is not designed to provide a comprehensive scheme of enforcement of the rights and duties it creates, no private cause of action may be inferred. See id. Plaintiff therefore has no private cause of action under the statute.

I would rule that plaintiff Auto-Owners Insurance Company has no cause of action as subrogee against the insured’s agent, Central, under MCL 500.3175(2); MSA 24.13175(2).

I do not address the other possible common-law causes of action available to plaintiff.