Michigan Court of Appeals; Docket #273429; Unpublished
Judges Meter, Kelly, and Fort Hood; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Not applicable
TOPICAL INDEXING:
Underinsured Motorist Coverage: Underinsured Motorist Coverage in General
Underinsured Motorist Coverage: Underinsured Motorist Benefits in Motorcycle Accidents
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided without oral argument, the Court of Appeals affirmed summary disposition for defendant State Farm for underinsured benefits finding the plaintiff failed to comply with the policy’s contractual provisions.
On June 5, 2003, the plaintiff in this case was injured in a motor vehicle accident with an uninsured motorist who was driving the vehicle without the owner’s permission. Plaintiff sought uninsured motorist benefits under his insurance policy with State Farm and filed this action on June 5, 2006. State Farm moved for summary disposition, arguing that plaintiff failed to comply with the conditions set forth in the insurance policy. Meanwhile, plaintiff filed an action against the uninsured motorist and the owner of the motor vehicle and attempted to consolidate the action with the action against State Farm. The trial court denied the plaintiff’s motion to consolidate because the statute of limitations had run. The trial court then granted State Farm summary disposition.
The Court of Appeals affirmed, noting that because uninsured motorist coverage is not required by the no-fault statute, the contractual language of the insurance policy controls. The court explained that the plain language of the State Farm policy required the owner or driver of the uninsured motor vehicle to be added to the lawsuit against State Farm and further provided that no right of action existed unless the insured had complied with all the policy provisions. Because the plaintiff had failed to comply with the contract’s policy provisions, the court determined that summary disposition for State Farm was proper. Moreover, the court rejected the plaintiff’s argument that State Farm would suffer no prejudice by his failure to include the uninsured motorist or the driver. In so finding, the court noted that joinder of the uninsured owner or operator is now improper because the three year statute of limitations controlling such actions has run. Therefore, plaintiff cannot satisfy his contractual duties and summary disposition for defendant was therefore proper. In this regard, the court stated:
“Because uninsured motorist coverage is not required by the no-fault act, the rights afforded under such coverage are contractual in nature. . . . [T]he insurance policy unambiguously requires that the owner or driver of the uninsured motor vehicle be added to any lawsuit against defendant for uninsured motorist benefits. The policy further provides that there is no right of action against defendant ‘until all the terms of this policy have been met. . . .’ This provision unambiguously requires compliance with every term in the policy in order to sue defendant for benefits. Plaintiff brought suit against defendant but did not include either the owner or operator of the vehicle as a defendant. Therefore, plaintiff failed to comply with the unambiguous terms of the policy. . . . Because the insurance policy at issue clearly requires that either the owner or the driver of the uninsured vehicle be included in a lawsuit against defendant, we hold that the trial court properly granted summary disposition in favor of defendant. Relying on MCR 2.504(B)(3), plaintiff further argues that the trial court should have dismissed his claim against defendant without prejudice rather than with prejudice to allow him to pursue other remedies. We disagree. . . . Under the involuntary dismissal rule, MCR 2.504(B)(3), ‘unless the court otherwise specifies in its order for dismissal, a dismissal under this subrule or a dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for failure to join a party under MCR 2.205, operates as an adjudication on the merits.’. . . [W]e conclude that the joinder of the uninsured owner or operator at this time in the proceedings is improper. The three-year statute of limitations applicable to actions for injury to a person bars plaintiff from filing suit against the vehicle’s owner and driver. . . . Therefore, plaintiff can no longer satisfy the contract provision requiring joinder of the uninsured party as a defendant in this action. . . . Because compliance with the contract provision is no longer possible, we hold that the trial court did not abuse its discretion by dismissing plaintiff’s lawsuit with prejudice.”
(emphasis in original)
