(dissenting). I respectfully dissent.
A brief review of the facts is necessary to this discussion. Plaintiff’s decedent was fatally injured in an automobile collision on February 19, 1975. The decedent was insured under a no-fault auto*501mobile insurance policy issued by the defendant. The policy provided in relevant part:
"(5) the amount payable by the company under the terms of this insurance shall be reduced by
"(a) the amount paid, payable, or required to be provided under the laws of any state or federal government.”
The reduction in payments allowed by paragraph (5)(a) of the insurance policy is provided for in MCLA 500.3109(1); MSA 24.13109(1), which states:
"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”
The plaintiffs qualified for the maximum survivor’s loss of $1,000 per 30-day period. They also qualified for social security benefits of approximately $560 per month. Pursuant to paragraph (5)(a) of the insurance policy, the defendant reduced the insurance benefits $560 and paid the plaintiff approximately $440 per month.
Plaintiffs brought this action to recover the difference. Count I of plaintiff’s complaint alleged breach of contract. Count II requested a declaratory judgment that MCLA 500.3109(1); MSA 28.13109(1), was unconstitutional as a violation of equal protection and due process of law and void as incorporated in the insurance policy.
Defendant moved for summary judgment on both counts grounded on GCR 1963, 117.2(1) and (3). Defendant failed to file a supporting affidavit. Consequently, the trial court only considered *502whether the complaint failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1).
The court held that count I failed to allege facts constituting breach of contract because the insurance contract provided for a reduction in benefits in the amount "required to be provided under the laws of any state or federal government”. The court further ruled that count II failed to state a claim because the contract was between private parties. Therefore, a constitutional attack could not be sustained, where there existed no state action.
A motion for summary judgment brought under GCR 1963, 117.2(1) merely tests the legal sufficiency of the claim as determined from the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974), 1 Honigman & Hawkins (2d ed), Committee Notes to GCR 1963, 117, pp 353, 355. For the purposes of that motion, both at the trial and appellate levels, every well pled allegation in the complaint is assumed to be true. Bielski v Wolverine Insurance Co, 379 Mich 280, 283; 150 NW2d 788 (1967). The test is whether the plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).
I am of the opinion the trial judge correctly ruled that count I failed to allege breach of contract. The facts pled do not allege breach of contract because the insurance contract provided for a reduction in no-fault benefits to the extent of government benefits received.
The heart of this lawsuit is count II. The proscriptions of the Fourteenth Amendment, US *503Const, Am XIV, apply to actions of the state and not merely private conduct. Shelley v Kraemer, 334 US 1; 68 S Ct 836; 92 L Ed 1161 (1948). The Fourteenth Amendment applies to all state legislation which impairs due process or denies equal protection. Civil Rights Cases, 109 US 3, 11; 3 S Ct 18; 27 L Ed 835 (1883).
It is undisputed that the basis for paragraph (5)(a) of the insurance policy is the legislative enactment of MCLA 500.3109(1); MSA 24.13109(1). This is a state action. See Peterson v City of Greenville, 373 US 244; 83 S Ct 1119; 10 L Ed 2d 323 (1963). I believe the trial judge erred in determining there was no state action, and consequently failing to consider the constitutional questions raised.
Appellate courts should not decide constitutional questions not passed upon by the trial court. Cortez v International Union, United Automobile, Aircraft & Agricultural Workers of America (UAW-CIO), 339 Mich 446, 453; 64 NW2d 636 (1954), Wilson v Boyer, 269 Mich 197, 199; 256 NW 854 (1934). In my opinion, the proper procedure is to remand to the trial judge for consideration of the constitutional questions raised in the action for declaratory judgment.1 However, because my brothers found it necessary to consider the constitutional question of equal protection, I feel compelled to respond.
A classification must be reasonable, not arbitrary, so that all persons similarly situated are treated alike. Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), FS Royster Guano Co *504v Virginia, 253 US 412, 415; 40 S Ct 560; 64 L Ed 989 (1920). The Equal Protection Clause does not deny the state the power to treat different classes of persons in different ways. Railway Express Agency, Inc, v New York, 336 US 106; 69 S Ct 463; 93 L Ed 533 (1949). Barbier v Connolly, 113 US 27; 5 S Ct 357; 28 L Ed 923 (1885). The grossest discrimination can sometimes lie in treating things that are different as though they are exactly alike. Jenness v Fortson, 403 US 431, 442; 91 S Ct 1970; 29 L Ed 2d 554 (1971).
The majority has correctly determined that a discrimination exists under MCLA 500.3109(1); MSA 24.13109(1), which requires public benefits to be set-off against no-fault insurance proceeds, while mandating no such reduction for private insurance benefits. The majority reasons that if the purpose of the provision is to reduce costs by eliminating duplicative recovery, such a classification is unreasonable and arbitrary, as it only operates on those who receive public benefits.
In my opinion the majority has combined two different classes and treated them as if they were alike. The same error occurred in Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971). In Richardson the appellee attacked the Social Security Act, § 224, 79 Stat 406 (1968); 42 USC 424a, which permitted the reduction of his social security benefits in the amount of workmen’s compensation benefits received by him. Appellee claimed the statute violated the Due Process Clause of the Fifth Amendment, US Const, Am V,2 because it discriminated between those disabled employees who received workmen’s compensation *505and those who received compensation from private insurance.
The United States Supreme Court rejected any suggestion that the classes were alike. The government benefits were all part of a statutory scheme to insure a minimum threshold of recovery and to provide for needs not previously met by private insurance. The Court determined the classification could be justified by the conclusion of Congress that Federal duplication of benefits could gradually weaken or atrophy the state workmen’s compensation systems. Furthermore, the Court refused to consider whether the purposes of Congress might have been better served had the offset provisions been extended to private insurance, on the grounds that it would exceed their constitutional authority.
"In the area of economics and social wélfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis’, it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality’ ”. Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25 L Ed 2d 491 (1970).
Social security as well as other governmental programs, such as workmen’s compensation benefits, are part of an overall statutory scheme established as a matter of public policy to provide minimum compensation for all persons otherwise qualifying for benefits under the programs. See Lasky v State Farm Insurance Co, 296 So 2d 9, 21 (Fla 1974), reh den, 43 Fordham L R 379, 396 (1974). These programs were intended to fill a void not adequately covered by private insurance. See *506Richardson v Belcher, supra, 404 US 83, 84. As such, a rational basis exists for distinguishing the classes.
The Legislature could rationally conclude that a reduction of no-fault proceeds to the extent one receives public benefits would eliminate duplicate recovery and reduce costs. Whether the Legislature should have gone further, by providing an offset for private insurance, is not for us to consider under our limited function as a reviewing court under the constitution. Richardson v Belcher, supra, 202 US 84. The Equal Protection Clause does not preclude the state from taking one ■step at a time, addressing itself to the phase of the problem that seems most acute, while neglecting other phases of the problem. Geduldig v Aiello, 417 US 484, 495; 94 S Ct 2485; 41 L Ed 2d 256 (1974), Williamson v Lee Optical Co, 348 US 483, 489; 75 S Ct 461; 99 L Ed 563 (1955).
Assuming arguendo the majority is correct that the classes are indistinguishable, their analysis still does not justify the conclusion that there is a deprivation of equal protection of the law. San Antonio Independent School District v Rodriguez, 411 US 1, 20; 93 S Ct 1278; 36 L Ed 2d 16 (1973), reh den 411 US 959; 93 S Ct 1919; 36 L Ed 2d 418 (1973), analyzed prior precedent to determine the common characteristics of classes discriminated against by their inability to pay. The Court stated:
"The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that beneñt. ” (Emphasis supplied.)
That is not the case here. Under the statutory *507scheme everyone participating in no-fault is entitled to certain minimum benefits. The fact that some individuals are unable to purchase private insurance is of no moment. As long as everyone has an opportunity to enjoy a minimum statutory benefit, there is no absolute deprivation. Any discrimination that might exist is insufficient to justify invoking the Equal Protection Clause.
I would reverse the trial judge’s summary judgment as to count II and remand for independent consideration of the constitutionality of MCLA 500.3109(1); MSA 24.13109(1).
A remand seems particularly appropriate in light of the majority’s statement in n 2, that no proof was presented that MCLA 500.3109; MSA 24.13109, results in cost reduction. No proofs were presented because the dispute was resolved summarily without consideration of the constitutional question.
The Federal Government’s duty under the Due Process Clause of the Fifth Amendment includes guaranteeing all citizens equal protection of the laws. Bolling v Sharpe, 347 US 497; 74 S Ct 693; 98 L Ed 884 (1954).