Cavalier Ins. Corp. v. Monroe Boat Club , 122 Mich. App. 268 ( 1982 )

122 Mich. App. 268 (1982) 332 N.W.2d 464

CAVALIER INSURANCE CORPORATION
v.
MONROE BOAT CLUB

Docket No. 61134.

Michigan Court of Appeals.

Decided December 21, 1982.

Moss & Richard (by J. Steven Sarvis), for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Michael T. Lynch and Christine D. Oldani), for defendant.

Before: M.F. CAVANAGH, P.J., and D.C. RILEY and C.J. HOEHN,^[*] JJ.

PER CURIAM.

Plaintiff's insured, while intoxicated, struck and injured a bicyclist as a result of which plaintiff paid benefits pursuant to the insurance policy which it had issued. Almost seven years after the accident, plaintiff brought suit under the dramshop act, MCL 436.22; MSA 18.993. The trial court granted summary judgment for the defendant, holding that the plaintiff failed to state a claim against the defendant and that the statute of limitations had run on any claim that the plaintiff might have had. Plaintiff appeals by right.

We have reviewed the briefs and record in this case and find no error. An intoxicated driver's insurer is not entitled to sue in its own name under the portion of the dramshop act which provides a cause of action for "other persons" injured in person or property. McDaniel v Crapo, 326 Mich 555, 558; 40 NW2d 724 (1950). In McDaniel the insurer was allowed to sue under the dramshop act only because its insured had a cause of action under the act. Here the insured is the intoxicated person himself, and an intoxicated person has no right of action under the act. Scholten v Rhoades, 67 Mich App 736, 742; 242 NW2d 509 (1976). Since we conclude that the insurer of an intoxicated driver has no cause of action under MCL 436.22; MSA 18.993, we need not address the statute of limitations issue.

Affirmed. Defendant may tax costs.

NOTES

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