Smith v. Auto-Owners Insurance

Danhof, C.J.

(dissenting). Plaintiff sought benefits pursuant to MCL 500.3114(1); MSA 24.13114(1), which provides:

"(1) 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.”

In Citizens Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975), a panel of this Court held that a spouse need not be domiciled in the household of the named insured at the time of the accident to recover no-fault benefits. In so ruling, the Court stated the following:

*590"What the Legislature meant by the language employed and the structure of the sentence must be determined with some degree of reason. There is reason for limiting insurance benefits to any relative of the insured or his spouse to those relatives domiciled in the insured’s household. It creates a definite limit to the exposure of the insurer, an essential factor in determining the insurance premium.” 65 Mich App 733.

In Bierbusse v Farmers Ins Group of Companies, 84 Mich App 34; 269 NW2d 297 (1978), another panel of this Court permitted recovery by children of the insured who were domiciled in a separate household with the estranged spouse of the insured:

"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.” 84 Mich App 37-38.

Recognizing that it was departing from the rule announced in Citizens Mutual Ins Co, supra, the Bierbusse Court expressly limited its holding to the facts of that case..

Assuming that Bierbusse, supra, was correctly decided,1 I cannot agree that that holding should be extended to permit the recovery of benefits by persons who are neither related to, nor domiciled with, the named insured. To extend benefits to such persons creates possible exposure by the insurer which cannot reasonably be contemplated at *591the time the policy is issued and the premium determined. Therefore, I am of the opinion that a no-fault carrier is not liable for payment of benefits to persons who are related to the estranged spouse of the insured, but not to the insured, unless those persons are domiciled in the same household as the insured. Since it is conceded that plaintiffs daughter was not domiciled in the household of the insured, I would reverse the trial court’s decision.

It appears that a split exists among the courts of other jurisdictions which have decided the issue discussed in Bierbusse, supra. See Anno: Who Is "Member” or "Resident” of Same "Family” or "Household," Within No-Fault or Uninsured Motorist Provisions of Motor Vehicle Insurance Policy, 96 ALR3d 804, § 3, pp 810-815.