American Fidelity Fire Insurance v. Williams

N. J. Kaufman, J..

(dissenting). MCLA 500.3101(1); MSA 24.13101(1) requires that owners of motor vehicles required to be registered in Michigan obtain personal protection insurance. Defendant’s husband purchased that insurance from plaintiff. Additionally, he purchased uninsured motorist coverage, which is not statutorily required.1 Prior to entering into the contract, Mr. Williams saw only the face of the policy which indicated that he was contracting for full personal protection coverage and uninsured motorist coverage in the amount of $20,000/$40,000. The issue in *131this case revolves around language contained in the uninsured motorist provision allowing the insurer to set off any amounts paid under the personal protection provision from amounts owing under the uninsured motorist coverage.

It is not disputed that personal protection coverage, to the limit of the policy, covers "benefits consisting of (a) allowable expenses,[2] (b) work loss,[3] and (c) survivors’ loss[4] as a result of bodily injury * * * ”. Nor can it be disputed that, under the uninsured motorist provision, the insurer "will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury’ * * * ”.

It is significant that the definition of the term "bodily injury” in the personal protection section is identical to the definition of "bodily injury” in the uninsured motorist section. It is an elementary maxim of contract law that a contract definition is binding on the parties to the contract. See e.g. The Western Fire Insurance Co v J R Snyder, Inc, 76 Mich App 242; 256 NW2d 451 (1977). Thus, an entirely permissible inference from the language of the two provisions is that the benefit coverage provided under each is co-extensive with the other. Of course, such a construction would render the uninsured motorist coverage totally worthless under the majority’s definition.5 Any amount obtaina*132ble under the uninsured motorist provision would be offset by its inclusion in the personal protection benefits.

My colleagues, who also formed the majority in Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977), (to which I dissented) have noted that an insurance contract "is enforceable unless considerations of equity and justice * * * dictate otherwise”.

In this case, I would not enforce the set-off provision, as interpreted by the majority, because I feel to do so is both inequitable and unjust.

Even if it is argued that the uninsured motorist coverage is more extensive than the personal protection coverage, it cannot be gainsaid that, at the very least, the scope of potential benefits under the uninsured motorist provision is ambiguous. Generally, if an insurance policy requires interpretation, the policy is construed strictly against the insurer and more liberally toward the insured. Arrigo’s Fleet Service, Inc v Aetna Life & Casualty Co, 54 Mich App 482, 487, n 5; 221 NW2d 206 (1974), lv den 392 Mich 812 (1974). Thus, in this case, regardless of the precise definition of the uninsured motorist coverage, I would hold that the insurance policy visits an unconscionable result as a matter of law upon defendant.6 This Court’s choice of remedies in this situation is outlined in MCLA 440.2302(1); MSA 19.2302(1). I would "enforce the remainder of the contract without the unconscionable clause”; i.e., I would not enforce the set-off provision and therefore I would affirm the trial court.

The statutory provision which mandated such coverage, MCLA 500.3010; MSA 24.13010 was repealed by 1972 PA 345.

Required by MCLA 500.3107(a); MSA 24.13107(a).

Required by MCLA 500.3107(b); MSA 24.13107(b).

Required by MCLA 500.3108; MSA 24.13108.

"The provision, consistent with the 'residual’ designation on the premium schedule, limits a recovery under uninsured motorist coverage to the policy limit less any recovery under the statutorily required personal protection coverage. ” (Emphasis supplied.)

This result would not occur under insurance contracts which provide that personal protection benefits can only be claimed where bodily injury resulted from an accident involving an insured driver, or under contracts which expressly state how the uninsured motorist coverage is more expansive than the personal protection coverage.