Auto Club Ins. Ass'n v. DeLaGarza

Levin, J.

(dissenting). The primary function of uninsured motorist coverage1 is to provide protection to an injured insured person, not to provide protection to family members who may suffer loss (e.g., of consortium) as a result of another person’s injury.

Where an injured insured person dies, his personal representative may seek to recover for wrongful death under the uninsured motorist coverage. The question whether a spouse of the deceased person may also seek an uninsured motorist recovery will not, as a practical matter, arise because, however many insureds or policies providing uninsured motorist coverage there may be,2 *219recovery for loss caused by an uninsured motorist is generally limited to an aggregate of $20,000 for injury to one person.

The question here presented, whether the spouse of an injured person may recover under the uninsured motorist coverage, may arise where the injured person’s loss is less than $20,000 or, as here, the injured person is not an insured covered under the provision of a policy providing for loss caused by uninsured motorists. Because automobile insurance does not generally protect against loss other than direct loss suffered by an insured person, I would be inclined to hold, in accord with Bradley v Mid-Century Ins Co, 409 Mich 1, 41; 294 NW2d 141 (1980), that a spouse may not recover from her insurer for loss of consortium3 were it not for the language of the limits of liability provision in the instant case which appears to recognize that a claim for "derivative damages” may be asserted under the uninsured motorist coverage. This provision states that the limit of liability is $20,000 for bodily injury sustained by one "insured person,” *220and "[t]his limit also includes all claims for derivative damages allowed under the law.”4

The limits of liability provision thus appears to permit recovery, under the uninsured motorist coverage, by a spouse for loss of consortium, but only where the injured person is, as stated in the limits of liability provision, an "insured person” under the policy. DeLaGarza’s spouse was not, we all agree, an insured person under the policy.5

I am unable to join in the Court’s disposition on the basis that there may be another reading of the uninsured motorist provision, and there is thus an ambiguity. Recovery by an insured from his insurer for loss pf consortium arising as a result of physical injury to another person is beyond the ambit of automobile insurance and any reasonable expectation of a reasonable person who has purchased uninsured motorist coverage.

I would reverse the decision of the Court of Appeals.

Plaintiff Auto Club argues that this is the sole function of uninsured motorist coverage.

See Bradley v Mid-Century Ins Co, 409 Mich 1, 23, 48; 294 NW2d 141 (1980).

*219Although Bradley construed a statute and this Court rested its holding on its reading of legislative intent, the uninsured motorist provision of the automobile insurance policy preceded the enactment of the legislation adverted to in Bradley. The nature of uninsured motorist coverage has not changed, either before the enactment or since repeal of that legislation, since it was first introduced by the insurance industry in 1956. See 2 No-fault and Uninsured Motorist Automobile Insurance, § 22-30[l]; anno: Eights and liabilities under "uninsured motorist” coverage, 79 ALR2d 1252-1253; Bradley, supra, p 23.

In Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981), this Court held that a child can recover for loss of consortium in respect to injury to his parent. Under today’s decision, if DeLaGarza’s deceased husband had a child living anywhere in Michigan, who had an automobile insured with uninsured motorist coverage phrased as is the policy provision in this case, that child could recover or possibly, depending on the limits of liability provisions or how they are read, find himself in a race of diligence with his mother or stepmother plaintiff Mary DeLaGarza.

The Auto Club has not responded to DeLaGarza’s argument that this language means that a wife can recover under the uninsured motorist coverage for her "derivative” loss arising out of the injury to and the death of her husband.

Nor has the Auto Club asserted in this declaratory judgment action that by reason of her husband’s death DeLaGarza’s claim may be asserted only as a claim for wrongful death by her husband’s personal representative. See Burns v Van Laan, 367 Mich 485; 116 NW2d 873 (1962).

It is customary for the owner of an automobile to purchase his own automobile insurance. A spouse living in a house owned by and insured under a homeowner’s policy purchased by the other spouse from whom she is separated might not, however, customarily purchase public liability and tangible property insurance. "Household,” like most words when read in the entire context, verbal and otherwise, may be protean.