Boss v. Wolverine Insurance

333 N.W.2d 212, 123 Mich. App. 175, 1983 Mich. App. LEXIS 2682

• Court: Michigan Court of Appeals
• Decided: February 9, 1983
• Docket: Docket No. 56877
• Status: Published

Opinion

Per Curiam.

This is an action for personal protection benefits under a no-fault automobile insurance policy. The circuit court granted accelerated judgment for defendant pursuant to GCR 1963, 116.1(5) on the ground that the one-year limitation period contained in MCL 500.3145(1); MSA 24.13145(1) had expired before plaintiff gave notice to the insurer or brought suit. Plaintiff appeals by right.

Plaintiff first argues that MCL 500.3145(1); MSA 24.13145(1) is a notice provision rather than a statute of limitations and that his action therefore should not be dismissed absent a showing of prejudice to defendant through lack of notice. We reject this argument for the reasons stated in Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978), lv den 406 Mich 868 (1979).

Plaintiff also argues that he gave notice to his employer, defendant’s insured, within the one-year period. Plaintiff points out that the statute allows notice to be given "to the insurer or any of its authorized agents” and argues that, because his employer was defendant’s insured, an implied agency relationship was created. Plaintiff has cited no authority for this novel proposition and we can find none. Even if we assume that the statutory term "authorized agents” encompasses agencies created by implication, no such agency was created here. In Weller v Speet, 275 Mich 655, 659; 267 NW 758 (1936), the Court explained:

"An implied agency must be an agency in fact; found to be so by reasonable deductions, drawn from disclosed facts or circumstances. While it cannot exist contrary to the express will of an alleged principal it may spring from acts and circumstances within his control and permitted over a course of time by acquiescence or in recognition thereof.”

Nothing that plaintiff has pled, argued, or submitted by way of affidavit or other evidence suggests that the foregoing test was met here. This was not a case, for example, in which plaintiff’s employer held itself out, with defendant’s knowledge and without objection by defendant, as defendant’s agent. Plaintiff relies exclusively on defendant’s contract to insure plaintiffs employer. We cannot say that such a contract implicitly authorizes the insured to act as the insurer’s agent.

Plaintiff also argues that, while the original accident occurred on January 4, 1979, and while notice was not given to defendant until defendant received a letter dated January 28, 1980, he did not become disabled until June 12, 1979, and the statutory period did not begin to run until that date. This argument is without merit in view of the express language of MCL 500.3145(1); MSA 24.13145(1), which provides in part:

"An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury.” (Emphasis added.)

Plaintiff suggests that he suffered further, unspecified accidents which aggravated his original injury to the point of disability. Because these subsequent accidents were not the accident out of which plaintiffs claim for benefits arose, they were not the accident to which MCL 500.3145(1); MSA 24.13145(1) refers.

Affirmed.