Michigan Court of Appeals; Docket No. 31545; Published
Judges Maher, N. J. Kaufinan, and Borchard; 2-1 (with J. Kaufman Dissenting)
Official Michigan Reporter Citation: 80 Mich App 640; Link to Opinion
In a 2-1 decision, with Judge Kaufman dissenting, the same panel of the Court of Appeals essentially affirmed its holding in American Fidelity v Williams (item number 54) and upheld an uninsured motorist provision in plaintiff’s no-fault policy which permitted a reduction of the insurer's liability under uninsured motorist coverage-by whatever payment the insurer made to the injured party under PIP coverage. The Court rejected the plaintiff’s argument that Murray v Ferris (item number 29), which invalidated the PIP carrier's statutory lien for reimbursement under §3116, applies to an insurer's contractual offset as set forth in the uninsured motorist contract before the Court In distinguishing Murray, the Court noted that the uninsured motorist clause in question was not statutorily mandated and thus there was no constitutional infirmity. Furthermore, the Court felt that Murray was questionable in light of the Supreme Court's decision in Pelkey v Elsea, regarding workers' compensation subrogation rights.
This decision has another very important aspect. The Court of Appeals finally stated that any reading of §3135 of the no-fault statute which suggests that uninsured motorists can utilize the "serious impairment - noneconomic loss" threshold is patently wrong. Uninsured motorists are given no immunity for economic loss, or for injuries falling below the serious impairment threshold. In so ruling, the Court of Appeals held in footnote three that "An insured is therefore able to recover, under his uninsured motorist coverage, both economic and noneconomic losses. The Court went on to say that without such an offset provision as is involved in this case," . . . nothing would seem to be able to prevent an insured from recovering his economic losses under both personal protection coverage and uninsured motorist coverage."
[Author's Comment: The latter aspect of this decision regarding uninsured motorist coverage effectively rejects the holding in item number 51.]