Gurwin v. Alcodray , 77 Mich. App. 97 ( 1977 )

77 Mich. App. 97 (1977) 257 N.W.2d 665

GURWIN
v.
ALCODRAY

Docket No. 30504.

Michigan Court of Appeals.

Decided July 19, 1977.

Gursten, Wigod & Koltonow, P.C., for plaintiffs.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Carl K. Carlsen, Assistants Attorney General, for defendant Secretary of State.

Harvey, Kruse & Westen, P.C. (by Richard A. Harvey and Paul B. Hynes), for defendant Farmers Insurance Group.

Alvin & Schwartz, for defendant Michael Alcodray.

Before: R.M. MAHER, P.J., and N.J. KAUFMAN and F.J. BORCHARD,^[*] JJ.

PER CURIAM.

Plaintiff, as next friend of several minors, brought this action for a declaratory judgment. The court was asked to determine the liability of defendant Farmers Insurance Group under an insurance policy issued to defendant Alcodray, the minors' father, and also the liability of defendant Secretary of State as director of the Motor Vehicle Accident Claims Fund, MCLA 257.1101 et seq.; MSA 9.2801 et seq.^[1] The court below voided an exclusionary clause in the policy issued by defendant Farmers Insurance Group. Defendant insurer appeals.

Defendant insurer issued to Michael Alcodray an insurance policy providing protection against liability arising out of his ownership, maintenance or use of his automobile. The policy, however, excluded coverage "to liability of any insured for bodily injury to (a) any member of the same household of the insured except the servant * * *". If valid, this exclusion would not protect Michael Alcodray for his possible liability for the injuries his children received while his passengers.

An owner's policy of liability insurance, if certified as proof of financial responsibility, must comply with statutory requirements. MCLA 257.520; MSA 9.2220. Exclusions that cause a certified policy to deviate from statutory requirements are barred. Lilje v Allstate Insurance Co, 393 Mich. 259; 224 NW2d 279 (1974), Citizens Mutual Insurance Co v Central National Insurance Co of Omaha, 65 Mich. App. 349; 237 NW2d 322 (1975). Since MCLA 257.520(b)(2); MSA 9.2220(b)(2) requires that a liability policy insure the named insured "against loss from the liability imposed by law", and parental immunity no longer exists in Michigan, Plumley v Klein, 388 Mich. 1; 199 NW2d 169 (1972), the exclusion under consideration can have no effect.

Another panel of this Court has recently reached the opposite conclusion in State Farm Fire and Casualty Co v Peckham, 74 Mich. App. 551, 553-554; 254 NW2d 575 (1977):

"On the basis of the reasoning in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich. App. 513; 194 NW2d 193 (1971), and MCLA 500.3009(2); MSA 24.13009(2), we reject the argument that the household exclusion is contrary to the spirit and intent of the financial responsibility act [MCLA 257.501 et seq.; MSA 9.2201 et seq.]."

This analysis is unacceptable. Weisberg, over a strong dissent by then Judge LEVIN, upheld an exclusion that precluded liability coverage "to bodily injury to any named insured". The majority reasoned that the exclusion was not contrary to the public policy expressed by the Motor Vehicle Accident Claims Act, MCLA 257.1101 et seq.; MSA 9.2801 et seq., because that act is "concerned with the protection of the rights and claims of third parties when the vehicle owner becomes liable to those third parties". 36 Mich. App. at 518. The reasoning in Weisberg supports the holding that the household exclusion, which deprives third parties of protection, is invalid.

Equally unsupportive of the exclusion is MCLA 500.3009(2); MSA 24.13009(2). That subsection allows the exclusion of liability coverage "when a vehicle is operated by a named person". The household exclusion seeks to avoid liability when certain persons are injured, not when a named person is operating the insured vehicle.

The court below was correct in invalidating the exclusion.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Pending was an earlier action plaintiff had brought, as next friend of the minors, against the minors' father for injuries the minors received on April 6, 1972, while passengers in his automobile.