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Estate of Joseph P. Esmer v Home-Owners Ins Co; (COA-UNP, 2/23/2012; RB# 3244)


Michigan Court of Appeals; Docket No. 301675; Unpublished
Judges Hoekstra, Cavanagh, and Borrello; Unanimous; Per Curiam
Official Michigan Reporter Citation:  Not Applicable;Link to OpinionCourthouse Graphic

Not Applicable 

Uninsured Motorist Coverage: Set-offs Applicable to Underinsured Motorist Cases

In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals affirmed the trial court’s determination that there was no underinsured motorist coverage available under the terms of the policy because the amount of the liability coverage available to the underinsured driver was the same amount as the underinsured motorist coverage.  The Court held that, pursuant to the Supreme Court decision in Wilke v Auto-Owner’s Ins Co, 469 Mich 41 (2003), language in the policy limiting underinsured motorist coverage to an amount that shall not exceed the amount by which the underinsured motorist coverage limits stated in the declaration exceed the total of all bodily injury liability policies “available to the owner or operator of the underinsured automobile” was binding and enforceable language.

In this case, plaintiff’s decedent received fatal injuries in a motor vehicle accident in 2009.  The accident was caused by another vehicle operator who had liability insurance coverage in the amount of $500,000.  Because there were multiple other claimants with injuries arising from the accident, the $500,000 insurance limits available to the negligent vehicle operator were divided amongst those claimants with the plaintiff’s decedent’s estate receiving $230,000 out of the $500,000 available limits.

The estate filed a claim against Home-Owners Insurance pursuant to its underinsured motorist coverage, which provided limits of coverage in the amount of $500,000.  That policy also contained a provision limiting Home-Owners’ underinsured motorist coverage to the amount “by which the underinsured-motorist coverage exceeded the underinsured motorist’s coverage limits for bodily injury.”  The policy provision limiting liability provided that the insured is entitled to underinsured motorist benefits “in excess of the total limits of all bodily injury liability bonds and policies available to the owner or operator of the underinsured automobile.”   Home-Owner’s Insurance contended that the language of its policy limited coverage in such a way that there was no excess from which plaintiff could receive underinsured motorist benefits because the responsible driver had $500,000 of liability insurance coverage, an amount equal to the underinsured motorist limits.  Home-Owners relied upon the Supreme Court decision in Wilke, supra, which addressed the same issue and upheld such policy language.

On appeal in this matter, the Court of Appeals rejected plaintiff’s argument that the “plain language of the policy” did not provide for any set-off of the underinsurance coverage available because the declaration page clearly stated that the policy provided underinsured motorist coverage in the amount of $500,000 without stating that this amount would be reduced by the amount of liability coverage available to the underinsured driver.  Plaintiff also argued that the term “available” is ambiguous because it is unclear if the term is referring to the amount actually available to the plaintiff or the amount potentially available to the plaintiff.  Plaintiff argued that because the estate only received $230,000 of the $500,000 of available coverage, the policy should be interpreted to mean that an additional $270,000 of underinsured motorist coverage was available for plaintiff’s claim.  The Court held that this argument had been addressed in Wilke, supra, and rejected and that Wilke was binding in this matter.

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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