Dillon v. Secretary of State

233 N.W.2d 96, 61 Mich. App. 588, 1975 Mich. App. LEXIS 1572

• Court: Michigan Court of Appeals
• Decided: June 9, 1975
• Docket: Docket 17759
• Status: Published

Opinions

J. H. Gillis, P. J.

Plaintiff, a minor, was injured when the motorcycle on which he was a passenger was struck by an unidentified motor vehicle, forcing the motorcycle into a parked automobile. Plaintiff brought this action by his next friend, his father, against Mr. Unknown and the Michigan Secretary of State, pursuant to the Motor Vehicle Accident Claims Act, MCLA 257.1112; MSA 9.2812. His parents also brought an action against the same defendants in their own names.

Judgment was entered in favor of David Gary Dillon, by his next friend William Robert Dillon, in the sum of $20,082 and in favor of William Robert Dillon in the sum of $8,031.98. Subsequently the State of Michigan issued a warrant payable to the plaintiffs in the sum of $12,334.77, which represented a payment of $10,000 on the judgment, plus interest and costs.

The plaintiffs then sought by motion to enforce payment by the Motor Vehicle Accident Claims Fund of the $8,031.98 judgment entered in favor of William Robert Dillon. The Secretary of State was so ordered by the trial court and now appeals.

MCLA 257.1112; MSA 9.2812 provides a cause of action for any person injured by a motor vehicle where the identity of the vehicle, driver or owner cannot be ascertained.¹ Prior to its amendment in 1971,² MCLA 257.1123; MSA 9.2823 limited the recovery to $10,000 on account of injury to or the death of one person.³

The purpose of the Motor Vehicle Accident Claims Act is "to protect injured persons from loss resulting from inability to recover damages caused by uninsured motor vehicles”. Steele v Wilson, 29 Mich App 388, 394-395; 185 NW2d 417, 420 (1971). Since the act is remedial in nature, it is to be liberally construed. Lisee v Secretary of State, 32 Mich App 548, 556; 189 NW2d 50, 54 (1971), Steele v Wilson supra.

However, where the language of the statute is plain, we are left no room for judicial construction. Busha v Department of State Highways, 51 Mich App 397, 399; 215 NW2d 567, 568 (1974), Hughes v Detroit, 336 Mich 457, 459; 58 NW2d 144, 145 (1953). That is the situation in the case at bar.

The "injury to or death of one person” which can give rise to payment under the fund obviously means physical injury. The statute cannot reasonably be read to mean that a parent’s loss of services of a minor child is an injury which will give rise to separate payment out of the fund.

Furthermore, the same view has been taken by courts in several other jurisdictions which have been called upon to construe similar statutes.

In Mizell v Miller, 29 Misc 2d 1007; 214 NYS2d 827 (1961), plaintiff filed suit for $523 in medical expenses, incurred on account of injuries to his wife who had originally obtained a judgment in the sum of $10,112. The New York statutory language is similar to that in the case at bar.⁴ The court noted that the medical bills flowed from the injury to plaintiffs wife. It was held that the husband could not recover the medical expenses because the $10,112 and the $523 both represent liability on account of injury to one person.

The case of Rall v Schmidt, 104 NW2d 305 (ND, 1960), also deals with a statute similar to Michigan’s.⁵ In that case a father was not allowed to recover costs for medical care and services rendered in treating his daughter for injuries sustained in an automobile accident, when the daughter had already recovered $5,000 from the Unsatisfied Judgment Fund. The North Dakota Supreme Court held that payment from the fund was improper in view of the dollar limitation.

"Thus the clear intent of the statute is to limit the amount of recovery from the fund to $5,000 for each person injured in one accident. The word 'injured’ has reference to the words 'bodily injury.’ The clause 'subject to such limit of $5,000.00 for each person so injured * * * in one accident’ clarifies a 'judgment resulting from bodily injury.’ ” 104 NW2d at 308.

Similarly, in Jones v Williams, 53 NJ Super 16; 146 A2d 508 (1958), a father was denied recovery from the Unsatisfied Claim and Judgment Fund for medical expenses paid out on behalf of his infant son who was injured in an automobile accident. The court held that where only one person, an infant, was injured in a single automobile accident, the Unsatisfied Claim and Judgment Fund Act⁶ contemplated allowance out of such fund of a maximum of $5,000.

Michigan’s adoption of the Motor Vehicle Accident Claims Act to a "large part” reflects Ontario’s Highway Act.⁷ Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513, 523; 194 NW2d 193,197 (1971).

A similar fact situation to the case at bar was presented to the Ontario Court in Brady v Ferrill, (1954) 2 DLR 253, OWN 95. In addition to his wife’s bodily injury claim, the husband claimed further damage for loss of consortium. The husband’s claim exceeded the statutory limit but alleged, as does the appellee, that there were injuries to two persons. In denying the claim, the court held:

"The loss of consortium was damage to the husband but it was not on account of any physical injury to him but on account of physical injury to the wife * * * .” Brady v Ferrill, supra, at 256. See also Thomas v Frank, 1 WWR 947 (Alberta, 1950).

Since this particular issue is a matter of first impression in this state, we may correctly consider the interpretation of other courts. See Blakeslee v Farm Bureau, 388 Mich 464, 470-473; 201 NW2d 786, 789-790 (1972), Feldman v Stein Building & Lumber Co, 6 Mich App 180, 183; 148 NW2d 544, 545 (1967). Having done so, we reverse and vacate that portion of the judgment by which William Robert Dillon, the father of David Gary Dillon, was awarded damages against the Motor Vehicle Accident Claims Fund for the loss of services of his son. No costs, a public question being involved.

Peterson, J., concurred.

1 "Where the death of or personal injury to any person is occasioned in this state by a motor vehicle but the identity of the motor vehicle and of the driver and owner thereof cannot be established, any person who would have a cause of action against the owner or driver in respect to the death or personal injury may bring an action against the secretary, either alone or as a codefendant with others alleged to be responsible for the death or personal injury.”

2 MCLA 257.1123; MSA 9.2823, was amended by 1971 PA 119 to raise the limit for the death or injury of one person to $20,000. This amendment became eifective on October 1, 1971 and is not applicable to the case at bar.

3 "(1) In respect to applications under this act for payment of damages arising out of motor vehicle accidents occurring in this state on or after January 1, 1966, the secretary shall not pay out of the fund, (a) more than $10,000.00, exclusive of costs, on account of injury to or the death of one person, and, subject to such limit for any one person so injured or killed, not more than $20,000.00, exclusive of costs, on account of injury to or the death of 2 or more persons in any one accident; and (b) more than $5,000.00, exclusive of costs, for loss of or damage to property resulting from any one accident.”

4 Section 610 of the Insurance Law provides for payment by the Motor Vehicle Accident Indemnification Corporation of any judgment, "which does not exceed:

"(a) The maximum amount or limit of ten thousand dollars, exclusive of interest and costs, on account of injury to * * * one person, in any one accident, and

"(b) The maximum amount or limit, subject to such limit for any one person so injured * * * of twenty thousand dollars, exclusive of interest and costs, on account of injury to * * * more than one person, in any one accident”.

5 Section 39-1707 of the 1957 supplement to the North Dakota Revised Code of 1943 provides:

"39-1707. Limitation On Amount Payable From Fund. No order shall be made by the court directing the payment of more than $5,000.00, exclusive of costs, in the case of a judgment resulting from bodily injury to, or the death of, one person in one accident, nor, subject to such limit of $5,000.00 for each person so injured or killed in one accident, shall an order be made directing the payment of judgments for more than $10,000.00, exclusive of costs, in cases arising out of one accident * * * ”.

6 NJSA 39:6-69 (1952) provides that a claimant may apply to the court for an order directing payment to be made out of the Unsatisfied Claim and Judgment Fund "of the amount unpaid upon such judgment, which exceeds the sum of two hundred dollars ($200.00) and does not exceed—

"(a) The maximum amount or limit of five thousand dollars ($5,000.00), exclusive of interest and costs, on account of injury to, or death of, one person, in any one accident, and

"(b) The maximum amount or limit, subject to such limit for any one person so injured or killed, of ten thousand dollars ($10,000.00), exclusive of interest and costs, on account of injury to, or death of, more than one person, in any one accident * * * ”.

7 Section 98(1) of the Highway Traffic Act, RSO 1950, ch 167, provides: " * * * where a person recovers in any court in Ontario a judgment for damages on account of injury to or the death of any person * * * occasioned in Ontario by a motor vehicle * * * judgment creditor may apply * * * for an order directing payment of the amount of the judgment or the unsatisfied portion thereof out of the Fund.

"(5) The minister shall not pay out of the fund under an order,

“(a) more than $5,000.00, exclusive of costs, on account of injury to or the death of one person * * * ”.