Michigan Court of Appeals; Docket Nos. 152342 and 152648; Published
Judges Reilly, Sawyer, and Clulo; Unanimous; Opinion by Judge Clulo
Official Michigan Reporter Citation: 203 Mich App 5; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Private Contract (Meaning and Intent)
Underinsured Motorist Coverage: Underinsured Motorist Coverage in General
Underinsured Motorist Coverage: Exclusions from Underinsured Motorist Benefits
CASE SUMMARY:
In this unanimous published Opinion by Judge Clulo, the Court of Appeals interpreted an exclusion contained in an insurance policy issued by Auto-Owners which excludes underinsured motorist coverage in circumstances where the bodily injury to an insured is sustained while in, upon, entering or alighting from any motor vehicle not owned by the insured, if the owner has insurance similar to that afforded by this coverage and such coverage is available to the insured.
The Court of Appeals upheld the exclusion contained in this policy, thereby preventing one of the injured parties from seeking recovery under that policy's underinsured motorist coverage because the owner of the vehicle in which she was injured had simitar coverage which the Court of Appeals felt was available to her.
In this case, plaintiff Phyllis Leefers, deceased, was operating her motor vehicle in which Jauron Leefers and Keysha Cash were passengers. The vehicle was struck by another automobile resulting in fatal injuries to Phyllis Leefers and serious injuries to Jauron Leefers and Keysha Cash. There was no dispute that the sole cause of the accident was the negligence of the driver of the other vehicle.
The driver of the other vehicle had $50,000 per person/$ 100,000 per occurrence liability insurance. These limits were paid to the three claimants and distributed on a pro rata basis in accordance with the nature of their injuries. It was undisputed in this matter that the $50,000/$ 100,000 limits were inadequate to cover all of the damages to all of the claimants. Phyllis Leefers insurance policy issued by Auto-Owners contained underinsurance coverage in the amount of $300,000 per person/per occurrence. Similarly, Keysha Cash resided in a household where her grandfather had a policy issued by Auto-Owners containing underinsured motorist coverage in identical amounts, i.e., $300,000 per person/per occurrence.
Auto-Owners filed an interpleader action and offered to submit $250,000 to the court (representing the $300,000 per occurrence liability on the Leefers' policy, minus the $50,000 per person limitation paid under the policy of the other driver). Auto-Owners denied any liability under the policy purchased by Keysha Cash's grandfather on the grounds that an exclusion clause in that policy stated:
"This coverage shall not apply:
a. to bodily injury to an insured sustained while in, upon, entering or alighting from, any motor vehicle not owned by the insured if the owner has insurance similar to that afforded by this coverage and such coverage is available to the insured."
Based upon this exclusion, the trial court concluded that Keysha Cash was precluded from seeking underinsured motorist benefits under her grandfather's policy.
On appeal, Cash contended that the underinsured motorist coverage under Leefers' policy was not "available to her" because the aggregate amount of the injuries exceeded the adjusted $250,000 limitation on underinsured motorist coverage under Leefers' policy. Auto-Owners, in response, claimed that all of the claimants had equal rights to the underinsured motorist coverage under the Leefers' policy, and since the benefits are equally available to all the exclusion in Cash's grandfather's policy precluded recovery of benefits under that policy.
In upholding the trial court decision, the Court of Appeals held that the term "available" although ambiguous, has been construed by other courts to mean that which is "actually" or "reasonably" available to the insured. The court held that there was nothing in this case to prevent Cash from recovering her pro rated portion of the $250,000 limits in underinsurance benefits under the Leefers' policy. Therefore, since that coverage was available to her, the exclusion was valid and no coverage was available under her grandfather's policy.
