Rowland v. Detroit Automobile Inter-Insurance Exchange

34 Mich. App. 267

• Court: Michigan Court of Appeals
• Decided: June 21, 1971
• Docket: Docket No. 8440
• Status: Published

Opinion

Lesinski, C. J.

Plaintiff Karen Rowland’s application for leave to appeal in this case was granted by the Michigan Supreme Court and the cause was remanded to this Court for consideration on the merits.¹ Plaintiff claims error in the partial summary judgment entered below in favor of defendant Detroit Automobile Inter-Insurance Exchange in an action to recover on a policy of automobile liability insurance.

On January 16, 1966, plaintiff, a passenger in an automobile owned and operated by Karl John, was injured as a result of an accident caused by an uninsured motorist. Both plaintiff and John were insured under separate insurance policies issued by defendant which provided the same uninsured motorist coverage of $10,000 per person and $20,000 per accident.

Plaintiff claims she should be able to recover $10,000 under Mr. John’s uninsured motorist coverage and an additional $10,000 under her own policy. Defendant denies liability for any amount over the $10,000 policy limits of either policy. Defendant relies on clauses found in both policies which provide :

“Other Insurance — With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of the coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

At the outset it should be noted that we are not called upon to interpret the effect of the “other insurance” clause of the policies. That question has been authoritatively settled contrary to plaintiff’s position in Horr v. Detroit AIIE (1967), 379 Mich 562. The only issue presented is whether the restrictions of the “other insurance” clause are void as against public policy in light of the enactment of MCLA § 500.3010 (Stat Ann 1971 Cum Supp § 24-.13010), imposing required provisions in automobile insurance policies. See Blakeslee v. Farm Bureau Ins. Co. of Michigan (1971), 32 Mich App 115.

Plaintiff’s insurance policy was issued September 25,1965. Since the statute which plaintiff claims invalidates “other insurance” clauses did not become effective until January 1, 1966, we need not reach the issue presented. This case is controlled by Wells v. DAIIE (1970), 29 Mich App 235, where it was held that MCLA § 500.3010, supra, could not apply to policies issued prior to the effective date of the statute. Any other result would be inconsistent with Const 1963, art 1, § 10:

“No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.”

We find no statutory or decisional law which requires a result contrary to the holding in Horr v. Detroit AIIE, supra.

Affirmed. Costs to defendant.

All concurred.

1 See Rowland v. DAIIE (1970), 384 Mich 752. Plaintiff’s claim of appeal was treated as an application for leave to appeal, which was denied by this Court on May 1,1970.