Dittus v. Geyman

242 N.W.2d 800, 68 Mich. App. 433, 1976 Mich. App. LEXIS 1012
CourtMichigan Court of Appeals
DecidedApril 6, 1976
DocketDocket 23372
StatusPublished
Cited by24 cases

This text of 242 N.W.2d 800 (Dittus v. Geyman) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dittus v. Geyman, 242 N.W.2d 800, 68 Mich. App. 433, 1976 Mich. App. LEXIS 1012 (Mich. Ct. App. 1976).

Opinions

Bashara, P. J.

The appellant, Michigan Mutual Liability Company, appeals from a judgment holding the appellant responsible for both prejudgment and post judgment interest on a verdict that was within the limits of a liability policy issued by the appellant.

This action arose when an automobile driven by the appellee, Marian Dittus, was rear-ended by a car driven by Robert Geyman. Marian Dittus sued for personal injuries, while her husband Richard, who is also an appellee, sought recovery for medical expenses and the loss of the services of his wife. At the time of the collision, Geyman was insured by the appellant on an automobile policy providing a $250,000 maximum liability for bodily injury to one person. Marian Dittus and Richard Dittus obtained verdicts of $200,000 and $35,000 respectively.

After the verdict, costs were taxed in favor of the appellees in the amount of $1,426. The court also awarded the appellees interest of $45,118 at the rate of 6% on the verdict from the date of the complaint to the date the judgment was paid. The appellant paid the appellees $251,426. This amount includes the $235,000 verdict, $15,000 in prejudgment interest and $1,426 in costs.

The payment to the appellees was subject to an agreement and satisfaction of judgment which provided that Geyman was relieved from any further personal liability. It was further agreed that the appellees could test in a subsequent action the liability of the appellant for prejudgment interest in excess of the $15,000 paid by the appellant. The [436]*436agreement was in accordance with the appellant’s stipulation that it was liable for prejudgment interest, but only up to an amount that would not exceed the policy limits.

The applicable insurance provisions are as follows:

"Bodily Injury Liability
"To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
"A. bodily injury * * * sustained by any person;
* * *
"Supplementary Payments:
To pay, in addition to the applicable limits of liability:
"(a) * * * all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon;”

Appellees contend that prejudgment interest on the entire judgment is appropriate under either of two theories. First, it was argued at oral hearing that prejudgment interest is covered by the provisions in the insurance contract pertaining either to "damages” or "costs”. The Supreme Court in Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969), construed the prejudgment interest statute, MCLA 600.6013; MSA 27A.6013, as procedural. Damages are substantive, therefore prejudgment interest must be recoverable as costs under the supplementary payments provision. Second, appellees propose that as Michigan allows an [437]*437injured party to recover interest on the entire judgment from the date of the complaint, public policy mandates that insurance companies pay prejudgment interest on the entire verdict because they control the litigation.

It is appellant’s position that the bodily injury liability provision requiring the insurer to pay "all sums which the insured shall become legally obligated to pay as damages” means that the insurer is liable for any judgment including prejudgment interest, but only up to an amount that does not exceed the policy limits.

The first issue for our consideration is whether prejudgment interest is recoverable as interest or costs under the supplementary payments provision, or as damages under the bodily injury liability clause.

The law is well settled in Michigan that policies containing ambiguities are construed against the insurer and most favorably to the insured. Weaver v Michigan Mutual Liability Co, 32 Mich App 605, 609; 189 NW2d 116 (1971). Moreover, insurance policies must be construed in accordance with the ordinary and popular sense of the language in order to avoid strained interpretations. Cora v Patterson, 55 Mich App 298, 300; 222 NW2d 221 (1974).

The portion of the supplementary payments clause relating to interest provides that the insurance company shall pay "all interest on the entire amount of any judgment * * * which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability * * * ”. This language in plain and unambiguous terms provides that the insurer will pay post judgment interest on the [438]*438entire amount of the judgment. Prejudgment interest is not recoverable under this provision of the policy.

We next consider whether prejudgment interest is recoverable as a cost under the supplementary payments provision. Costs were not awardable at common law. Booth v McQueen, 1 Doug 41 (Mich, 1843). Costs are only recoverable when there is statutory authority awarding them. Hester v Commissioners of Parks and Boulevards of the City of Detroit, 84 Mich 450; 47 NW 1097 (1891). In general the specification of items which are taxable as costs and the prescription of amounts are enumerated in RJA Chapters 24 and 25. See MCLA 600.2401, and included Practice Commentary in Vol 33, MSA 27A.2401. Prejudgment interest is not included therein, but rather provided for in RJA Chapter 60. MCLA 600.6013; MSA 27A.6013. We conclude that prejudgment interest is not recoverable under the supplementary payments provision covering costs.

It remains for us to determine whether prejudgment interest is covered by the bodily injury provision requiring the insurer to pay "all sums which the insured shall become legally obligated to pay as damages * * * ”. We note that appellant has stipulated that it is liable for prejudgment interest as damages, but only to the extent that the amount of interest falls within the policy limits. The distinction between interest on a judgment and interest as an element of damages had been often noted. The former is computed and added to the general verdict. Motyka v Detroit, Grand Haven & Milwaukee Ry Co, 260 Mich 396, 398; 244 NW 897 (1932), Swift v Dodson, 6 Mich App 480; 149 NW2d 476 (1967). The latter is awarded by the jury as an element of damages. Vannoy v City of [439]*439Warren, 26 Mich App 283, 288; 182 NW2d 65 (1970). Prejudgment interest from the date of the complaint is purely statutory, MCLA 600.6013;' MSA 27A.6013, and is computed and added to the general verdict. Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1971). Prejudgment interest is not an element of damages covered by the bodily injury liability provisions. Our determination that prejudgment interest is not covered by the ."damages” provision in the insurance policy, however, in no way affects the appellant’s stipulation to which it is bound.

We now turn our attention to whether public policy requires the appellant to pay all prejudgment interest on any verdict that is within the maximum policy limits of the insurance policy.

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Dittus v. Geyman
242 N.W.2d 800 (Michigan Court of Appeals, 1976)

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Bluebook (online)
242 N.W.2d 800, 68 Mich. App. 433, 1976 Mich. App. LEXIS 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dittus-v-geyman-michctapp-1976.