Smith v. Auto-Owners Insurance

Per Curiam.

Defendant appeals as of right from the circuit court’s order granting summary judgment in favor of plaintiff.

In May, 1981, plaintiff Linda M. Smith left her marital home in Detroit and went to San Antonio, Texas. Plaintiffs minor children from a previous marriage, who had been domiciled in the Detroit home with plaintiff and her husband, went with plaintiff to Texas. On July 6, 1981, William Walker filed a complaint for divorce in the Wayne County Circuit Court against his estranged wife, plaintiff herein. On July 9, 1981, plaintiffs minor child, Theresa Smith, was injured when she was struck by an automobile in San Antonio, Texas. At the time of the accident, William Walker was the *587owner of a pickup truck which was insured under a policy of no-fault insurance by defendant Auto-Owners Insurance Company.

On January 26, 1982, plaintiff commenced this action individually and as next friend of Theresa Smith, seeking personal injury protection (PIP) benefits under William Walker’s insurance policy. Plaintiff filed a motion for summary judgment. For purposes of the motion, the parties stipulated that on July 9, 1981, plaintiff was not domiciled in the same household as William Walker, and that Theresa Smith was not the daughter of William Walker. The trial court granted plaintiff’s motion and ordered defendant to pay plaintiff all PIP benefits due, plus interest. Defendant appeals.

Section 3114(1) of the no-fault act, MCL 500.3114(1); MSA 24.13114(1), provides in relevant part:

"Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.”

The issue is whether this statute applies to the child of a named insured’s spouse where the child was domiciled with the named insured and his spouse during the period when the parties were living together, but where, at the time the injury occurred, the child was domiciled in a separate household with his natural parent, i.e., the insured’s estranged spouse.

In Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34; 269 NW2d 297 (1978), the issue was whether the statute applied to the daughter of the named insured where, at the time of the *588accident, the daughter was domiciled in a separate household with the estranged spouse of the named insured. The Court first noted that the no-fault statute is remedial and therefore must be construed liberally in favor of persons intended to be benefited by it. The Bierbusse Court held:

"When a couple is separated pending divorce and one spouse is the named insured on a no-fault policy, the other spouse and the children of the named insured are covered by the no-fault policy, even though they are domiciled in separate households, until the divorce is finalized.” Bierbusse, supra, pp 37-38.

In reaching this conclusion, the Court observed that:

"It is also quite clear that when the policy was issued the defendant calculated its premium on the basis of the named insured, his wife and their children. To allow defendant to escape liability by concluding that the daughter was not within the zone of risk contemplated by the defendant is absurd and would create a windfall in favor of defendant.” Bierbusse, supra, p 37.

In the opinion of this Court, the rule adopted in Bierbusse is equally applicable to the children of the named insured’s spouse who were domiciled in the same household with the named insured and his spouse at the time the parties were living together. As in Bierbusse, defendant herein calculated its premium on the basis of the named insured and his nuclear family, i.e., the spouse and the spouse’s children living with them.

Our conclusion also follows from the language of § 3114(1). That section states that coverage applies to "the person named in the policy, the person’s spouse, and a relative of either domiciled in the *589same household”. (Emphasis supplied.) Since the statute was apparently intended to place the named insured and his spouse on equal footing, the rule announced in Bierbftsse cannot be distinguished merely because the injured party was a child of the spouse only, rather than a child of both the spouse and the named insured.

Contrary to defendant’s contention, extension of the Bierbusse rule to step-children of the named insured does not abrogate the prerequisite of domicile nor does it impair the insurer’s ability to reasonably calculate the scope of its risk. Rather, our holding is limited to the children of the named insured’s spouse who were domiciled in the marital home at the time the parties were living together, but were domiciled in a separate household with the named insured’s spouse pending a divorce.

Affirmed.