Michigan Court of Appeals; Docket No.307467; Unpublished
Judges Shapiro, Servitto, and Ronayne Krause; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Recoupment Between Equal Priority Insurers [§3115(2)]
Exception to General Priority for Non-Occupants [§3115(1)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals held that where two vehicles owned by the same person were insured by two separate insurance companies, and where only one of the vehicles was involved in a motor vehicle accident causing injury to a pedestrian, the provisions of §3115(1)(a) established that the two insurers of the two vehicles were of equal priority, requiring that there be partial recoupment from the non-paying insurer in favor of the insurer who paid the claim as required by §3115(2).
In this case, Bernard Foster owned two Cadillac vehicles. One was insured by Dairyland, the other by Affirmative Insurance Company. In 2008, the driver of the Cadillac insured by Dairyland struck and seriously injured a pedestrian. The pedestrian was uninsured and, therefore, under §3115 of the No-Fault Act was considered to be a non-occupant entitled to obtain coverage for PIP benefits pursuant to §3115(1)(a), which establishes priority for such coverage as to a non-occupant, requiring that such a person claim PIP benefits from, “(1)(a) Insurers of owners or registrants of motor vehicles involved in the accident.” (emphasis added)
In rejecting the argument of Affirmative Insurance, the insurer of the vehicle not involved in the accident, that it did not have any obligation to contribute to payment of the PIP benefits, the Court of Appeals relied upon the plain reading of the statute. The court stated:
“The simple fact is that both parties are, in fact, insurers of the owner of the 1997 Cadillac involved in the accident. The plain language of the statute explicitly contemplates the possibility of multiple insurers, and implicitly places them at the same level of priority purely because they both (or all) insure the same person, not the same vehicle.” (emphasis added)
Previous cases addressing this issue have explicitly held that pursuant to the plain language of the statute, it does not mandate that the vehicle involved in the accident must have been insured by the insurer of the owner before an injured person can seek benefits. The court noted that the Michigan Supreme Court in Detroit Inter-Insurance Exchange v Home Insurance Company, 428 Mich 43 (1987), had reached the same conclusion when analyzing similarly worded language in §3114(4)(a) and noted that the result is consistent with, among other things, a policy of insuring persons rather than vehicles.
The court also rejected Affirmative’s argument that holding it liable for an accident involving a vehicle that it did not insure, amounts to holding it liable for a risk that it did not assume. The court stated that by selling no-fault insurance in Michigan, each insurer agrees to the “risk” of having to pay all of the benefits provided for in the no-fault statute. The court stated that it is irrelevant whether defendant insured the vehicle involved in the accident.
Finally, the court rejected Affirmative’s contractual argument that it did not owe benefits based upon an exclusion in its policy from coverage for third-parties entitled to PIP benefits from another policy. The court rejected the argument that the defendant could contractually sidestep its statutory mandated priority which would violate public policy reasons behind creating a priority statute in the first place.
