Michigan Court of Appeals; Docket No. 1163; Published
Judges Kaufman, Allen, and Riley; Unanimous
Official Michigan Reporter Citation: 107 Mich App 575; Link to Opinion 
STATUTORY INDEXING:
Nature and Scope of PPI Benefits (Property Damage and Loss of Use) [§3121(1)]
Proper Defendant [§3121]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous Opinion, the Court of Appeals held that a complaint filed after the Court of Appeals decision in Shavers v Attorney General (Item No. 3) but before the Supreme Court's Opinion in Shavers, supra (Item No. 75), alleging tort liability for property damage, was controlled by the Court of Appeals decision and, therefore, the complaint was not barred for alleging tort liability for property damage. The court stated: "The Court of Appeals decision is binding until reversed by the Supreme Court." After the Supreme Court reversed the Court of Appeals in Shavers, the tort allegations should have been excised and a determination made as to whether the remaining allegations in the complaint set forth a claim under the Act for property protection insurance benefits (§3121).
In reaching its holding, the court made an interesting observation with regard to the proper procedure in filing a lawsuit for property protection insurance benefits. Section 3121 of the Act provides that an "insurer is liable to pay benefits for accidental damage to tangible property." However, §3030 of the insurance code prohibits naming an insurer as a defendant. In concluding that §3030 and §3121 can be read consistently with one another, the court noted, "Merely because an insurer is ultimately liable does not require naming the insurer, as opposed to the insured, as a defendant.”
[Author's Comment: In light of the court's comment regarding the naming of an insurance company in suits for property protection insurance benefits, it would probably be advisable for the practitioner to name both the individual insured, as well as the insurance company, in actions seeking property protection insurance benefits under §3121].
