Green v. Blicharski , 32 Mich. App. 15 ( 1971 )

32 Mich. App. 15 (1971) 188 N.W.2d 113

GREEN
v.
BLICHARSKI

Docket No. 9573.

Michigan Court of Appeals.

Decided March 26, 1971.

Sanford N. Lakin, for plaintiffs.

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

Before: LEVIN, P.J., and BRONSON and O'HARA,^[*] JJ.

O'HARA, J.

The parties to this appeal have filed a stipulated statement of facts, pursuant to GCR 1963, 809 and 812.10.

Plaintiff, Virgil Green, was riding a motorcycle when struck by a vehicle owned and operated by defendant, Blicharski. Defendant was an uninsured motorist, but plaintiff's insurance provided for uninsured motorist coverage.

Plaintiffs filed a claim for injuries sustained by them under the uninsured motorists provision of their policy with Allstate Insurance Company. The Allstate policy provided that the maximum amount payable by Allstate would be $10,000, but that the exact amount should be agreed upon by the insured and the company. In the absence of such agreement, arbitration in accordance with the rules of the American Arbitration Association would be binding. Plaintiffs and Allstate were unable to agree. Following a contested hearing, the arbitrator awarded plaintiffs $7,250 in full satisfaction of Allstate's obligation under its policy.

Having filed a timely notice of intent to claim, under the Motor Vehicle Accident Claims Act,^[1] plaintiffs then filed suit against defendant Blicharski to recover the damages sustained by them in the accident. On trial, plaintiffs were awarded judgment against defendant of $16,000, plus interest and cost. They thereafter filed a motion pursuant to MCLA § 257.1107 (Stat Ann 1968 Rev § 9.2807) to compel payment from the fund for the sum of $10,447, being the difference between the amount of the circuit court judgment and the arbitration award already obtained by plaintiffs.

The Attorney General's office, representing the Secretary of State on behalf of the fund, contended that the actual sum owing was $6,000 plus costs, alleging that the correct formula was to subtract plaintiff's policy limit ($10,000) under their uninsured motorist coverage from the amount of the judgment.

Per contra, plaintiffs contend that the fund is obligated to them for the difference between the arbitrator's award ($7,250) and the circuit court judgment ($16,000) or $8,750, plus interest and costs, a total of $10,477. The fund appeals from the amount of the judgment of the trial court in favor of plaintiffs.

The question then is not whether the fund is liable, but in what amount. We examine the pertinent section of the statute, MCLA § 257.1122 (Stat Ann 1968 Rev § 9.2822):

"(2) No payment shall be made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, or any amount paid or payable by an insurer by reason of the existence of a policy of insurance * * *.

"(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, * * *."

It is immediately apparent that we are called upon to determine the difference between the meaning of the terms "paid" and "payable" as used in the statute, as those terms affect the case at bar.

There is none. The amount "payable" is the amount "paid". This, of course, is by reason of the arbitration clause in the policy. After the arbitration award was made according to the terms of the policy, there was nothing more "payable". The reason is because the policy says so. The only way to sustain the fund's position would be to hold the arbitration clause void as against public policy or by reason of some specific statutory prohibition against it. There is neither.

The arbitration clause of the Allstate policy has been upheld by this Court as a valid method for adjudicating claims under the policy. Bradt v. Allstate Insurance Company (1970), 21 Mich App 529. The award by the arbitrator is final. It must be confirmed by the court absent a showing of one of the defects spelled out by GCR 1963, 769.9. It may be modified or corrected only on a showing of one of the grounds specified in GCR 1963, 769.10. Under Court Rule 769, the finality of the arbitrator's award is not vitiated by the fact that in a separate proceeding greater damages are found by a court. In this case, the award of the arbitrator to plaintiffs was final. The amount payable, therefore, under the Allstate policy is the amount determined by the binding arbitration.

Following the valid, binding and final award of the arbitrator, plaintiffs had no further recourse against the insurance company. Plaintiffs have not limited their recovery against the insurance company in order to claim against the Motor Vehicle Accident Claims Fund. They have, with full diligence and vigor, recovered from Allstate all that is payable to them under the policy. The $10,000 policy limit does not represent the amount payable under the insurance policy. It is merely a maximum fixed by contract, which the arbitration award could not exceed. In the instant case, the amount "paid" and the amount "payable" under the policy are one and the same.

The requirement of compulsory arbitration under the policy is a limitation, no different in kind than that limiting recovery for personal injury, thus excluding property damage.

As we have said on many prior occasions, where public policy or a specific statute is not offended, parties may contract as they choose. We cannot rewrite their contracts.

The result sought by the fund through the Attorney General doubtless could be had by legislative amendment. We eschew amendment by interpretation.

The order of the trial judge is affirmed. No costs.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] MCLA § 257.1101 et seq. (Stat Ann 1968 Rev § 9.2801 et seq.).