Schigur v. West Bend Mutual Insurance

N. J. Kaufman, J.

(dissenting). The majority opinion allows defendant-insurer to set-off benefits paid to an insured injured by an uninsured motorist for economic damage from an award for noneconomic damage. I acknowledge that a clause contained in the uninsured motorist provision of the insurance contract authorizes such a set-off. I further acknowledge that the contract is enforceable unless considerations of equity and justice or of public policy dictate otherwise. Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977). However, I believe that considerations of equity and justice mandate that the insurance policy be enforced without the set-off provision. Accordingly, I dissent.

I believe that the resolution of this case is aided by an examination of Murray v Ferris, 74 Mich App 91; 253 NW2d 365 (1977). In that case, this *646Court held that considerations of due process and equal protection prevented a statute from requiring an injured party to reimburse his insurer for benefits paid for economic losses from a recovery for noneconomic losses. In response, the majority argues that "[provisions of an insurance policy that are not statutorily required do not implicate constitutional guarantees of due process and equal protection”. Without passing on the majority’s argument, I nevertheless maintain that Murray’s rationale comports with the standard set forth by this same majority in Kozak v DAIIE, supra.

The threshold of my argument is grounded in the simple, and undisputed, maxims regarding the rationale for recovery of damages under no-fault insurance:

"The function of recovery in tort is to make the victim whole. Because of court congestion and delays in settlements and trials, many tort victims suffer undue hardships. In adopting the no-fault personal injury protection provision, the Legislature sought to afford the insured with the security of a prompt and certain recovery of a fixed amount over a fixed time for his out-of-pocket expenses, i.e., medical expenses, lost wages and lost services.” 74 Mich App at 95.

The present statutory scheme does not permit all victims to be made whole. The particular provision of the no-fault act under consideration is MCLA 500.3135; MSA 24.13135:

"Sec. 3135. (1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.
(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or *647use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.
(b) Damages for noneconomic loss as provided and limited in subsection (1).
(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured.” (Footnotes omitted; emphasis added.)

Under the majority’s rationale, an insured can recover all economic loss (to the statutory limits) from the insurer. The insured can also sue the tortfeasor for noneconomic losses. However, the majority concludes that the insurer can then offset the benefits it paid for economic loss against any judgment for noneconomic losses. It is easy to show the harsh results suffered by insureds under the majority’s analysis.

To determine the extent of the tortfeasor’s potential liability under MCLA 500.3135(2)(c); MSA 24.13135(2)(c), it is first necessary to recover economic loss benefits from the insurer. After such recovery, the insured can sue the tortfeasor under MCLA 500.3135(2); MSA 24.13135(2) for (a) any damages accruing solely from intentional conduct on the part of the tortfeasor; (b) any damages for *648noneconomic loss payable under MCLA 500.3135(1); MSA 24.13135(1); and (c), any damages 'for economic loss, in excess of the statutory limits. Payment of those damages, in addition to the payment of economic damages to the policy limits makes the insured whole. Yet the majority opinion forces the insured to disgorge part of that whole, with no recourse to the insured to collect the amount set off from the tortfeasor — the insured being limited by MCLA 500.3135(2)(c); MSA 24.13135(2)(c).1 That violation of the law of damages leads me to conclude that the setoff provision is both inequitable and unjust. Its implementation leads to an unconscionable result.

Thus, as in American Fidelity Fire Insurance Co v Williams, 80 Mich App 125; 263 NW2d 311 (1977) (Kaufman, J., dissenting): "I would 'enforce the remainder of the contract without the unconscionable clause’; [MCLA 440.2302(1); MSA *64919.2302(1)] [2] i.e., I would not enforce the set-off provision and therefore I would affirm the trial court.”

The majority concedes that "[wjhether or not the person causing the accident is insured, the threshold for liability for noneconomic loss must be met”. (Footnote omitted.) Then the majority contends that "[w]hile an insured motorist is only liable for negligently caused economic loss that is in excess of personal protection benefits payable, MCLA 500.3135(2)(c); MSA 24.13135(2)(c), an uninsured motorist is given no immunity from tort liability for economic loss”. (Footnote omitted.)

I retain a bemused puzzlement at the juxtaposition of those two assertions. I understand the majority’s initial concession as MCLA 500.3135(2); MSA 24.13135(2), mentions nothing of an insured-uninsured distinction. Therefore, subsection (2)(b) which allows for "fdjamages for noneconomic loss as provided and limited in subsection (1)”, is binding on an insured’s ability to collect from either insured or uninsured tortfeasors.

As subsection (2)(c) was born of the same stock as subsection (2)(b), I fail to see how that subsection’s limitations are somehow lifted as to an uninsured tortfeasor. Certainly, nothing on the statute’s face would suggest such a distinction. Furthermore, an examination of MCLA 500.3107-500.3110; MSA 24.13107-24.13110, reveals no sub-categorization as suggested by the majority.

While the majority’s construction might solve some of the problems attendant to its opinion, I do not believe that this Court, without something more than wishful thinking, can attribute such an interpretation to the statutory provisions cited above.

The majority opinion in footnote 3 argues "[A]n automobile owner is not required to agree to a policy provision offsetting personal protection benefits against an award under uninsured motorist coverage”. That statement, which implies that an automobile owner may bargain away a contract clause such as the one mentioned above ignores the reality of the market place. This Court has found insurance contracts to be "inherently involved in the doctrine of contracts of adhesion”. Arrigo’s Fleet Service, Inc v Aetna Life & Casualty Co, 54 Mich App 482, 487; 221 NW2d 206 (1974), lv den 392 Mich 812 (1974), citing Zurich Insurance Co v Rombough, 384 Mich 228, 232-233; 180 NW2d 775 (1970).

A more pertinent problem is the fact that plaintiff purchased uninsured motorist coverage for $2 extra where, in reality, its value was far less than the ostensible policy limitation.