Keller v. Losinski

285 N.W.2d 334, 92 Mich. App. 468, 1979 Mich. App. LEXIS 2361

• Court: Michigan Court of Appeals
• Decided: September 19, 1979
• Docket: Docket 78-2176
• Status: Published

Opinions

R. B. Burns, P.J.

This case involves a collision between a motorcycle and an automobile. The dispute in this case is between two insurance companies each of which maintains that the other must pay no-fault benefits to the injured motorcyclist.

On March 22, 1975, plaintiff, while riding a motorcycle owned by Jack Kozloski, collided with an automobile owned and operated by defendant Losinski. Defendant Michigan Mutual Insurance Company provided no-fault automobile insurance on the Losinski car. Defendant League General Insurance Company provided no-fault automobile insurance on the family car owned by Jack and Mary Kozloski. The motorcycle had standard cycle coverage but did not have no-fault coverage. Plaintiff, a first cousin of Mary Kozloski, was allegedly living with the Kozloskis at the time of the accident and had Jack Kozloski’s permission to use the motorcycle.

Shortly after the accident, Kozloski made an oral claim against League General but the agent in League General’s office immediately informed Kozloski that his no-fault policy did not cover accidents on his motorcycle. Upon learning of League General’s claim of noncoverage, plaintiff made claim against Michigan Mutual.

Plaintiff filed suit against defendants Losinski and Michigan Mutual. League General was added as a "party defendant” upon the stipulation of the parties, and Michigan Mutual cross-claimed against League General.

Upon being joined, League General moved for summary judgment, claiming a failure to state a cause of action, GCR 1963, 117.2(1), and for accelerated judgment, GCR 1963, 116.1, claiming lack of jurisdiction, lack of capacity to sue on the part of Michigan Mutual and that any claim against it was barred by the no-fault statute of limitations. Shortly thereafter, plaintiff moved for summary judgment alleging that Michigan Mutual was liable to pay for the injuries suffered by plaintiff. Michigan Mutual filed a motion for summary judgment claiming that it had paid all the no-fault benefits due plaintiff.

After a hearing on the motions, the trial court denied Michigan Mutual’s motion, granted plaintiff’s motion and held that, although League General’s statute of limitations argument did not apply, Michigan Mutual had failed to state a cause of action. Michigan Mutual sought a rehearing which was denied.

The substance of Michigan Mutual’s appeal is its desire to shift liability to League General and thereby to be reimbursed for its payments to plaintiff. The question which Michigan Mutual thus presents is whether a motorcyclist may recover benefits under a no-fault policy covering a motor vehicle with which the motorcyclist has collided, if he is covered by a no-fault policy on the automobile of the motorcycle’s owner. We do not, however, reach this issue because, on League General’s cross-appeal, we find that the trial court erred in denying League General’s motion for accelerated judgment.

League General received no written notice of plaintiff’s injury within a year of the accident and though the accident occurred on March 22, 1975, no attempt was made to bring League General into this action until April 20, 1977. Claims based on an obligation of League General to pay personal protection insurance benefits for plaintiff’s injury are therefore barred by the time limitations established by the no-fault statute. MCL 500.3145(1); MSA 24.13145(1).

Arguments presented by Michigan Mutual to avoid the consequences of this statute of limitations have been rejected by the Court in Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978). Nor does this Court believe that the requirements of the doctrine of equitable estoppel are met in the present action. League General did not intentionally misinform plaintiff and then seek to deny the information it had given to plaintiff. Rather, League General accurately stated to plaintiff the position which it continues to advance. There is nothing for the Court to estop League General from denying.

Finally, Michigan Mutual cannot avoid the statute of limitations by classifying its action as one for indemnification rather than one for recovery on personal injuries. In its indemnification action, Michigan Mutual is subrogated to plaintiffs rights and cannot recover where plaintiff would be barred from bringing his own action.

Accordingly, we hold that League General’s motion for accelerated judgment should have been granted and Michigan Mutual’s action dismissed.

Remanded for action in accordance with this opinion. Costs to League General.

Mackenzie, J., concurred.