author: M. F. Cavanagh, J.

text:
    NAWROCKI v HAWKEYE SECURITY INSURANCE COMPANY
    Docket No. 77-949.
    Submitted November 1, 1977, at Grand Rapids.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Joseph G. Nawrocki was disabled in an automobile accident and began receiving medical expense and wage loss benefits from Hawkeye Security Insurance Company under his no-fault automobile coverage. Later, a physician advised both parties that Nawrocki could resume full and normal activity but during Nawrocki’s disability his employer had hired another employee to fill his job and Nawrocki could find no other work. He sought a continuation of work loss benefits from Hawkeye but was refused. Nawrocki commenced an action in district court, Woodrow A. Yared, J., seeking benefits. Summary judgment for defendant. Plaintiff appealed to Kent Circuit Court, R. Stuart Hofiius, J. Summary judgment affirmed. Plaintiff appeals by leave granted. The sole issue on appeal is whether an insured is entitled to no-fault benefits for work lost because of a disabling injury where the disability has terminated and he can find no further employment. Held:

    Plaintiff is entitled to no-fault benefits from Hawkeye for work lost because of his automobile injury where disability had terminated, his employer had hired another to take his place and he was unable to find other employment because the no-fault statute requires only that work be lost as a direct consequence of an injury.
    Reversed.
    1. Appeal and Error—Judgment—Summary Judgment—Pleadings —Complaints—Court Rules.
    Appeals from orders granting summary judgments to defendants require the Court of Appeals to accept every well-pled allegation in a complaint as true (GCR 1963, 117.2[1]).
    References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error §§ 104, 853.
    73 Am Jur 2d, Summary Judgment § 35.

       22 Am Jur 2d, Damages §§ 86, 89.

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 22, 29.

      2. Damages—Capacity to Earn—Lost Wages—Separate Damages —Recovery of Damages.
    Loss of capacity to earn is a category separate from actual loss of earnings; in a tort action either or both of these types of damages may be recovered.
    3. Insurance—No-Fault Insurance—Termination of Disability— Lost Wages—Continuation of Benefits—Consequence of Injury—Statutes.
    A plaintiff is entitled to no-fault benefits from his insurance carrier for work lost because of a disabling injury in an automobile accident where the disability had terminated and plaintiffs employer had hired another to take his place and the defendant could find no other work because the no-fault statute requires no more than that the work be lost as a direct consequence of the injury (MCL 500.3107, 500.3107a; MSA 24.13107, 24.13107[1]).

      Dilley & Dilley, for plaintiff.

      Linsey, Strain & Worsfold, P. C., for defendant.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   M. F. Cavanagh, J.

Plaintiff insured appeals by leave from a circuit court judgment affirming a district court order granting summary judgment for defendant insurer. GCR 1963, 117.2(1). For purposes of this appeal we must accept every wellpled allegation in the complaint as true. Bielski v Wolverine Insurance Co, 379 Mich 280, 283; 150 NW2d 788, 789 (1967). Those allegations present the following case.

Plaintiff was disabled by an automobile accident in September, 1974, and began receiving medical expense and wage loss benefits from defendant. In June, 1976, plaintiffs physician advised plaintiff and defendant that plaintiff could resume full and normal activity. However, during plaintiffs disability his employer had hired another to fill his job, and plaintiff could find no other work.

Plaintiff sought a continuation of work loss benefits from defendant, but they were refused. Suit in district court resulted in summary judgment for defendant. An appeal to circuit court came to the same end. We granted leave.

The sole issue before us is whether an insured is entitled to no-fault benefits for work lost because of a disabling injury, where the disability has terminated.

The controlling statute is § 3107 of the no-fault act. It reads, in pertinent part, as follows:

"Sec. 3107. Personal protection insurance benefits are payable for the following:
"(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured * * * . Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss.” MCL 500.3107; MSA 24.13107.

It is defendant’s position that we should construe this statute as limiting the right to recover benefits to the period of the insured’s disability.

In support of this position defendant cites Michigan cases holding that the proper measure of damages in suits for personal injury is loss of earning capacity. See Prince v Lott, 369 Mich 606, 610; 120 NW2d 780, 782 (1963), Harris v Wiener, 362 Mich 656, 659; 107 NW2d 789, 791 (1961), Lorenz v Sowle, 360 Mich 550; 104 NW2d 347 (1960). Defendant concedes that it has found no Michigan case holding that damages for loss of earning capacity are exclusive of damages for lost work. However, defendant cites a Wisconsin case as so holding. See Dietz v Goodman, 256 Wis 370; 41 NW2d 208 (1950).

In Dietz the Wisconsin Supreme Court reversed a judgment for plaintiff on a jury verdict in a personal injury action. The court agreed with the defendant that a number of prejudicial and immaterial facts had been improperly presented to the jury as evidence of plaintiff’s damages. Among them was plaintiff’s difficulty in finding a job to replace that lost during his disability. The court stated that this was not a measure of plaintiff’s damages.

There is some difficulty with applying the Dietz decision to the issue at bar. Defendant urges us to construe the no-fault act to be in conformity with the common-law rule, citing Dietz as indicating what that rule is. However, the only authority cited by Dietz was the Restatement Torts, § 924, comment, clause (b), and neither the Restatement itself, nor the cited comment, clearly support the rule that physical impairment of earning capacity is the exclusive measure of damages. On the contrary, the comment to § 924(b) seems to contemplate an inquiry into whether there are employment opportunities available to the plaintiff. If not, then the comment indicates that the plaintiff is entitled to damages for earnings lost because of the harm. A continuing physical disability is not made an express condition of recovery.

The persuasive authority of Dietz is further undermined by other foreign authority recognizing that lost wages are an item of damages distinct from lost earning capacity, and that, in a proper case, the plaintiff may recover for both. Baxter v Baker, 253 Or 376; 451 P2d 456 (1969), reh den, 253 Or 376; 454 P2d 855 (1969).

There is other reason to question defendant’s reading of the common-law rule in Michigan regarding recovery of damages for lost wages.

The case law in this state is quite clear that loss of earning capacity is a category of harm separate from loss of wages, and that sustaining the second is not a prerequisite for recovery of damages for the first. Indeed, our courts have declared that the plaintiff may recover damages for loss of earning capacity even though actual earnings increased. Lorenz v Sowle, 360 Mich 550, 554; 104 NW2d 347, 348-349 (1960), Gonzalez v Hoffman, 9 Mich App 522, 527; 157 NW2d 475, 478 (1968), lv granted, but dismissed on defendant’s motion, 381 Mich 805 (1969).

The relationship between the two kinds of damages in the typical tort suit was succinctly explained in Justice T. E. Brennan’s opinion in Rohm v Stroud, 386 Mich 693, 696; 194 NW2d 307, 309 (1972):

"In tort cases generally, an injured party is entitled to recover for loss of earning capacity. In such cases, it is customary to prove actual lost wages.
"Actual lost wages are not the true or total measure of damages, but actual earnings are conclusive upon the question of the minimum earning capacity.”

Moreover, as was explained in Lorenz, supra, the rule permitting recovery of damages for loss of earning capacity functions to expand rather than reduce a plaintiff’s recovery. See also Harris v Wiener, 362 Mich 656, 659; 107 NW2d 789 (1961). If this benevolent effect was intended, as we presume it was, then defendant’s proposed extrapolation of the rule would run counter to its purpose.

To summarize, the Michigan law regarding damages for loss of earnings exhibits a policy favoring plaintiffs’ recovery of the maximum quantifiable loss, a recognition that loss of capacity to earn is a category separate from actual loss of earnings, and a rule that sustaining both kinds of damage is not a prerequisite to recovery of one. We see no basis here for concluding that the common-law rule in Michigan is that plaintiffs may not recover damages for wages lost after termination of a disability but as its consequence.

However, whatever the common-law rule regarding tort damages in Michigan, the problem we face here is construction of a statute providing for first-party insurance benefits. Even if the rule regarding damages is as contended by defendant, it appears to us, for the following reasons, that the Legislature chose not to incorporate that rule in the no-fault act.

First, we note that the cases which discuss earning capacity damages stress repeatedly that plaintiffs right is to recover not what he would have earned but what he could have earned. Prince v Lott, supra, 369 Mich at 610; 120 NW2d at 782, Lorenz v Sowle, supra, 360 Mich at 555; 104 NW2d at 349-350, Coger v Mackinaw Products Co, 48 Mich App 113, 125; 210 NW2d 124, 130 (1973). This contrasts sharply with the language of the statute before us: "benefits are payable for * * * loss of income from work an injured person would have performed * * * .” Giving this language the plain meaning which we must, it seems evident to us that the statute is not an enactment of the common-law rule.

This inference is strengthened by the statute’s provision for deduction, from the maximum payable benefit, of income earned by the insured during the benefit period. This is clearly inconsistent with the tort damages rule, discussed above, that damages for loss of earning capacity are not reduced by the amount of actual earnings.

Yet another indication that earning capacity is not the measure is provided by the legislative history of § 3107a of the no-fault act. That section provides as follows:

"Sec. 3107a. Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.” MCL 500.3107a; MSA 24.13107(1).

In the legislative analysis of the bill which became this section, the problem to which the bill was addressed was described in the following language:

"Under the no-fault insurance system enacted in 1972, all owners or registrants of motor vehicles registered in this state are required to maintain no-fault insurance providing for the payment of personal protection benefits. Under section 500.3107(b) of the Michigan Compiled Laws, these benefits are payable for work loss ..consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he/she had not been injured. However, there is no concise definition of 'loss of income’ in the law.
"This has given rise to certain problems in connection with persons who are seasonally employed or temporarily unemployed as a result of lay-offs, and who are disabled as a result of an auto accident. In the case of a worker who is unemployed at the time of an accident or during the period of disability, the law might be construed as providing for no work loss benefits since the worker would have had no income at that time, had he/ she not been injured. In addition, disabled- workers are not entitled to unemployment compensation since benefits are not payable to a person who is unable to work. An unemployed worker who is disabled in an auto accident may thus find him/herself without benefits of either sort.”

If earning capacity were the compensable loss under § 3107(b), then the problem described in the legislative analysis would not have existed and § 3107a would have been wholly unnecessary. That the Legislature found this statute necessary is a strong indication that § 3107(b) is not merely a deceptively worded enactment of the earning capacity damages rule. That the Legislature found no concise definition of "work loss” must mean either that they overlooked the numerous cases on earning capacity, or that "work loss” means something else, presumably what § 3107(b) says it means: "loss of income from work an injured person would have performed * * * if he had not been injured * * * .”

The Michigan no-fault act was based upon the uniform motor vehicle accident reparations act, 13 ULA 349, et seq. "Work loss” is defined in § 1(a)(5)(h) of that act, and the commissioners’ comment on this definition leaves no doubt that work loss as used in that act does not mean loss of earning capacity:

" 'Work loss,’ as are the other components of loss, is restricted to accrued loss, and thus covers only actual loss of earnings as contrasted to loss of earning capacity.” 13 ULA 362.

The foregoing leaves us convinced that work loss, as used in § 3107(b), is not to be equated with loss of earning capacity. However, we are still without a clear indication of whether income lost because of a disabling injury but subsequent to the disability’s termination is within the statutory definition.

Plaintiff points out that the Legislature had the workers’ compensation act before it, and, had it chosen to do so, could easily have adopted that act’s limitation of benefits to the period of disability. See MCL 418.351; MSA 17.237 (351), MCL 418.361; MSA 17.237(361). The Legislature chose not to so limit its act, and instead created a statute which requires no more than that the work be lost as a direct consequence of the injury. The allegations of plaintiff’s complaint satisfied this requirement.

Reversed. No costs.

       "We may assume that the plaintiff did suffer some impairment of his earning capacity. The amount of that impairment must be the basis for his damages for loss of earnings. Proof was put in at the trial of the fact that he had lost his job because another man had been hired to take his place. Plaintiff also put a man from the employment service on the witness stand and asked him a number of hypothetical questions regarding plaintiffs opportunity to secure a new job at his age. The witness was not allowed to answer because the court ruled that evidence of what he styled 'economic conditions’ was not admissible. However, the inference that plaintiff would have an extremely hard time finding new employment was conveyed to the jury. The fact that plaintiff had lost his job and might not get another is not a measure of his damage. The amount of damage to which the plaintiff was entitled was the difference, due to the injury, between his earning capacity before the injury and his earning capacity after the injury.” 256 Wis at 374; 41 NW2d at 210.

       "§ 924. Harm to the Person
      "A person whose interests of personality have been tortiously invaded is entitled to recover damages for past or prospective
      "(b) loss of earning capacity or earnings;

        "Comment on Clause (b):
      "c. Loss of earning capacity to the time of trial. A person physically harmed by the tort of another is entitled to receive as damages the amount of earnings which he has been prevented from acquiring up to the time of the trial. This amount is the difference between what he probably could have earned but for the harm and any less sum which he actually earned in any employment or, if he failed to avail himself of opportunities, the amount which he probably could have earned in work for which he was fitted, up to the time of trial. This difference represents the harm to his earning capacity.” Restatement Torts, § 924, p 631, and comment on § 924(b), pp 632-633.

       "For convenience, the courts of this state have followed the practice of instructing that impaired earning capacity is compensable as 'general damages.’ Lost wages can be covered in an instruction on 'special damages’ computed for the period from the date of injury to the date of the trial, but only if the plaintiff proves that he was employed at a fixed wage at the time of injury. * * * Whether or not a plaintiff was employed at the time of his injury, the jury is told that impaired earning capacity from the date of the trial on into the future is to be included within those losses compensable as 'general damages.’ ” 253 Or at 378; 451 P2d at 457. (Citations omitted.)

        Chrysler Corp v Washington, 52 Mich App 229, 234; 217 NW2d 66, 68 (1974), lv den, 399 Mich 859 (1977).

       Analysis, H. B. 4221, 21 November 1975.

       "'Work loss’ means loss of income from work the injured person would have performed if he had not been injured, and expenses reasonably incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income from substitute work actually performed by him or by income he would have earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake.” UMVARA, § 1(a)(5)(ii).


source: Caselaw Access Project

author: Bashara, J. D. C. Riley, J.

license: Public Domain

text:
    CHARPENTIER v YOUNG
    Docket No. 77-1099.
    Submitted February 22, 1978, at Detroit.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Irene and Ludger Charpentier were injured in a collision with an automobile driven by Francis R. Young and owned by Margaret Lovernick, and which was involved in a chase with the police at the time of the accident. The Charpentiers brought an action for damages against Young, Lovernick, and the Police Department of the City of Ferndale. The plaintiffs later filed a motion to amend their complaint to add Benny Chincarini, Margaret Chincarini, Clarence M. Jones, and Charles Lamoureaux under the dramshop act. All of these added defendants are owners of establishments where defendant Young had been drinking prior to the accident. The plaintiffs’ motion was granted; however, the amended complaint was not filed with the court for service upon the added defendants until some four months later. In the intervening time the two-year period for the commencement of actions under the dramshop act had run. The Oakland Circuit Court, Robert B. Webster, J., granted accelerated judgment of dismissal in favor of the dramshop proprietors, based upon the statute of limitations. Plaintiffs appeal. Held:

    The accelerated judgment was proper. Whether a party seeking to add parties has complied with the court rules so as to entitle him to suspend the running of an applicable limitations period is a matter for determination in the first instance by the trial court, and in this case the delay by the plaintiffs in filing the amended complaint with the court for service was of the plaintiffs’ own making.
    Affirmed.
    D. C. Riley, J., would prefer a more definite rule for cases similar to this other than the majority’s general discretion standard. Judge Riley concurred in the result, however, on the facts of this particular case.

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions §§ 236, 272, 471.

       47 Am Jur 2d, Judgment §§ 1080-1213.

       51 Am Jur 2d, Limitation of Actions § 471.

      Opinion of the Court
    1. Action—Limitation of Actions—Added Parties—Compliance with Court Rules—Judge’s Discretion.
    The question of whether a party seeking to add new parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable limitation period in favor of an added party is for determination in the first instance by the trial court (GCR 1963, 118, 207).
    2. Judgment—Accelerated Judgment—Complaint—Amended Complaint—Filing of Complaint—Commencement of Action— Court Rules.
    Accelerated judgment was properly granted in favor of defendants who were added parties by way of an amended complaint where the plaintiff did not file the amended complaint with the court for service until after the applicable limitation period had run; the timely filing of a motion to amend together with a copy of the proposed amended complaint was not sufficient to commence the action as to the added defendants within the meaning of the court rules where the plaintiff delayed some four months from the grant of his motion to amend until he filed the amended complaint with the court for service (GCR 1963, 101, 118, 207).
    Concurrence in Result by D. C. Riley, J.
    3. Action—Commencement of Action—Limitation of Actions— Amended Complaint—Standards.

      The question of whether an amended complaint is barred by a statute of limitations where the plaintiff obtains permission to amend before the statutory period runs but does not file the amended complaint until after the statutory period runs should be decided according to a rule more definite than a standard of general discretion.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiffs.

      Taub & Still, P. C., for defendants Benny and Margaret Chincarini.

      Seth H. Barsky, for defendant Clarence M. Jones.

      Katsoulos & Gillis (by David L. Richards), for defendant Charles Lamoureaux.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   Bashara, J.

Plaintiffs appeal from a trial court order granting defendants’-appellees’ motion for an accelerated judgment. That motion was based upon the alleged failure of plaintiffs to commence their dramshop action against these defendants within the two-year statute of limitations.

Injury was sustained by plaintiffs from a collision with an automobile driven by defendant Young, occurring on August 2, 1974. During a July 2, 1975, pretrial deposition, plaintiffs learned that Young had been drinking at the establishments of the defendants involved in this appeal.

On March 10, 1976, plaintiffs filed a motion to amend their complaint to add those defendants under the dramshop act. After several adjournments, the motion was heard without opposition and granted on March 31, 1976. Attached to the motion was a copy of the proposed amended complaint, but, according to the record, it was not filed with the court for service until August 6, 1976. Apparently, the intervening time period was consumed by plaintiffs’ motion for entry of an order allowing the complaint to be amended and several adjournments of the hearing on that motion. This latter motion was granted on July 7, 1976, and a nunc pro tunc order was filed on August 24, 1976.

Plaintiffs contend that the filing of the motion to amend, together with a copy of the proposed amended complaint, constituted a commencement of the action against the added defendants within the meaning of GCR 1963, 101. Consequently, plaintiffs maintain that the action was commenced on March 10, 1976, well within the limitations period, which ended on August 2, 1976.

In the alternative, plaintiffs argue that the statute of limitations was tolled during the interim between the filing and granting of the motion to amend. Adding this 21-day period to the time limitation on dramshop actions, plaintiffs maintain that the amended complaint was filed within the statute of limitations, which did not bar commencement of proceedings until August 23, 1976.

Appellees contend that rule 101 be strictly construed. Accordingly, they argue that only when the amended complaint is actually filed should the action be deemed to have commenced against the added defendants.

The opposing sides of this controversy bring into juxtaposition the purposes and policy underlying our court rules permitting pretrial amendment of pleadings and those upon which are founded statutes limiting the time in which a cause of action may be prosecuted. As applicable to the instant case, the former permit a diligent plaintiff to seek recovery from those whose potential liability and existence are not discovered until after the initiation of a cause of action against another involved in the same transaction or occurrence. The latter promote security from litigation arising out of transactions or occurrences remote in time.

Noting that GCR 1963, 101 is derived from FR Civ P 3, plaintiffs cite a number of Federal court decisions holding that the filing of a motion to amend to add parties is commencement of the action against those parties. To support their tolling theory, plaintiffs cite the decision of this Court in Forest v Parmalee (On Rehearing), 60 Mich App 401; 231 NW2d 378 (1975).

While the Federal decisions are enlightening, we decline to formulate any inflexible rule based upon their suggested interpretation of the Federal counterpart to GCR 1963, 101. Similarly, a more appealing fixed rule of procedure is not yielded from our review of Parmalee. Our conclusion is that any rule made to apply without regard to the peculiar circumstances of each case would undermine the purposes of both our court rules and the statutes of limitation and invite a risk of injustice of an unacceptably high degree.

We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.

In every case cited by the plaintiffs under FR Civ P 3, the particular circumstances were of dominant influence on the court. Their common factual characteristics included the filing of a motion to amend at or near the end of the limitations period, a ruling on the motion near or after the expiration of that period, and a contemporaneous filing and service of the amended complaint.

In the case under review, the plaintiffs obtained knowledge of the added defendants’ potential liability more than a year before expiration of the statute of limitations. Their motion to amend was filed eight months later and granted more than four months prior to the end of the limitations period. Nevertheless, the plaintiffs permitted the remaining four months to lapse before filing the amended complaint with the court for service upon the added defendants.

As stated by Justice Swayne of the United States Supreme Court:

"Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.”

Wood v Carpenter, 101 US 135, 139; 25 L Ed 807, 808 (1879), quoted in Ramsey v Child, Hulswit & Co, 198 Mich 658, 671; 165 NW 936 (1917). Our rule 101 is in harmony with these considerations by providing a simple and expeditious means of ascertaining when a civil action has been commenced. Buscaino v Rhodes, 385 Mich 474, 484; 189 NW2d 202 (1971). Only where a plaintiff demonstrates diligence in discovery and compliance with procedural rules should a deviation from the foregoing principles be permitted to avoid a defense based on the statute of limitations.

Under the circumstances of this case, we find that the trial court properly granted the added defendants’ motion for accelerated judgment. That judgment strikes a fair balance between the objectives of our court rules and the valuable purposes served by the statute of limitations. Plaintiffs cannot now complain of a situation created by their own lack of diligence.

Affirmed. Costs to defendants.

Beasley, P. J., concurred.

D. C. Riley, J.

(concurring in result). Although I concur in the majority’s holding that plaintiffs’ amended complaint was barred by the statute of limitations, I would prefer that some more definite rule be formulated for similar cases other than the majority’s general discretion standard. A statute of limitations is primarily a technical counting process which provides some measure of security to the parties in regard to when the statutory bar goes into effect. A possible rule would be that the statute be tolled for the amount of time the court takes to decide on a motion to amend if that delay extends beyond the date on which the original limitations period would end. The problem of dilatory actions to increase this delay could be handled by the trial court’s vigilance over its motion docket.

In the present case plaintiffs were not precluded from filing the amended complaint prior to the end of the limitations period because of the 21 days it took to grant the motion to amend. It was plaintiffs’ delay, and not the court’s, which caused the late filing. Therefore, I concur in the holding that accelerated judgment was properly granted.

       MCL 436.22; MSA 18.993.

       In pertinent part the dramshop act provides, "Any action shall be instituted within 2 years after the happening of the event and * * * .’’Id.

       Rule 101 provides simply that "A civil action is commenced by filing a complaint with the court”.

       See GCR 1963, 118 and 207 for the rules facilitating an amendment to add parties. Their respective Federal rule derivatives, rules 15(a) and 21, have been construed to entail the same basic standards in governing a motion to add parties whether the motion is made pursuant to Federal rule 15(a) or 21. See FR Civ P 15(a) and 21, Gibbs v Titelman, 369 F Supp 38, 53 (ED Pa, 1973).

        See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 33.

         Rademaker v E D Flynn Export Co, Inc, 17 F2d 15 (CA 5, 1927), Derdiarian v Futterman Corp, 36 FRD 192 (SD NY, 1964), Gloster v Pennsylvania R Co, 214 F Supp 207 (WD Pa, 1963), Robinson v Waterman SS Co, 7 FRD 51 (DNJ, 1947).

       In Rademaker, the motion was filed, heard, and granted with process issuing and being served upon the added defendant within the limitations period. The motion in Derdiarian was filed 23 days before the statute of limitations expired and was heard and granted four days before with an order signed seven days after expiration. In Gloster, the motion was filed on the last day of the limitations period and through the fault of the court only, was heard 36 days later. The motion in Robinson was filed 12 days before the end of the limitations period and was heard and granted six days thereafter with an order and amended complaint filed simultaneously with the court pursuant to FR Civ P 5(e).


author: Bashara, P. J.

text:
    WOOD v THE DETROIT EDISON COMPANY
    Docket No. 77-1149.
    Submitted December 19, 1977, at Detroit.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Cecelia Wood, administratrix of the estate of Raymond Wood, her deceased husband, brought an action in Wayne Circuit Court against The Detroit Edison Company and others for damages for wrongful death. Plaintiff filed a motion in limine to exclude references at trial to the fact that she had remarried. The trial court concluded that so long as plaintiff persisted in claiming damages for loss of decedent’s society and companionship, the evidence of her remarriage was relevant and admissible. The motion was denied, William J. Giovan, J. Plaintiff appeals by leave granted. Held:

    Evidence of a spouse’s remarriage is inadmissible in a wrongful death action on the issue of damages to the spouse for loss of the decedent’s society and companionship. The trial court erroneously denied plaintiff’s motion to exclude reference to the remarriage.
    Reversed and remanded.
    1. Damages—Evidence—Death—Wrongful Death—Remarriage— Society and Companionship.
    Evidence of a spouse’s remarriage is inadmissible in a wrongful death action on the issue of damages to the spouse for loss of decedent’s society and companionship.
    2. Damages—Wrongful Death—Loss of Society—Loss of Companionship—Negligence—Remarriage of Party—Evaluation of Damages—Finder of Fact.
    Compensation to the survivor of a marriage relationship for loss of society and loss of companionship in a negligence action is a determination to be made by the trier of fact; permitting the introduction of evidence of another marriage relationship to mitigate such damages would place an imponderable burden upon that evaluation process.

      References for Points in Headnotes

       22 Am Jur 2d, Death §§ 67, 164.
    Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse. 87 ALR2d 252.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Joselyn, Rowe, Jamieson & Grinnan, P. C., for defendant Michigan Mutual Liability Company.

      Dice, Sweeney, Sullivan & Feikens, P. C., for defendants The Detroit Edison Company, Parson & Company, and Marley Corporation.
    Amici Curiae: Foster, Swift, Collins & Coey, P. C. (by David W. McKeague), for American Mutual Insurance Alliance.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Bashara, P. J.

In a wrongful death action plaintiff brings this interlocutory appeal to obtain review, of a trial court order denying her motion in limine for a protective order. That motion sought to preclude defendant from referring to or introducing evidence at trial of plaintiffs remarriage. The trial court concluded that so long as the plaintiff persisted in claiming damages for loss of the decedent’s society and companionship, the evidence of her remarriage was relevant and admissible.

Defendants urge that determinations of evidential relevancy are within the discretion of the trial court and should be sustained unless there is an abuse of that discretion. Further, the defendants argue, without expository analysis, that remarriage is relevant to ascertaining the extent of damages arising from a loss of decedent’s society and companionship. Supportive authority is garnered by defendants from the amendatory language of 1971 PA 65, § 1 and this Court’s recent decision in Bradfield v Estate of Burgess, 62 Mich App 345; 233 NW2d 541, lv den, 395 Mich 803 (1975).

Plaintiff contends that evidence of remarriage is absolutely inadmissible, citing and relying upon the bases articulated in Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965). More particularly, plaintiff maintains, in conformity with Bunda, that such evidence is precluded by the collateral source doctrine, constitutes an irrelevant subsequent event because all damages accrue at the date of decedent’s death, and lacks a rational foundation for admissibility.

The resolution of this controversy is not yielded definitively from an examination of prior case precedent. However, the Bunda rationale is most persuasive in its analysis, and we adopt its foundational principles to conclude that evidence of a plaintiff-spouse’s remarriage is inadmissible in a wrongful death action on the issue of damages for loss of the decedent’s society and companionship.

A litany of authority from other jurisdictions indicates that a rule of inadmissibility has attained almost universal acceptance. See Annotation, 87 ALR2d 252 (1963), and supplements thereto. Further, that exhaustive account dispels the defendants’ assertion that a recent trend signifies a movement toward admissibility of such evidence.

We are, furthermore, unpersuaded by defendants’ interpretation of the amendatory language "under all of the circumstances * * * ” as being indicative of a legislative intent that evidence of remarriage be admissible. Given the posture of decisional law at the time of the 1971 amendment, an opposite conclusion is more tenable.

At that time the Supreme Court had rejected loss of society and companionship as a compensable injury; yet the rule of inadmissibility as to a surviving spouse’s remarriage was extant. The Legislature expressly altered the former holding, but gave no explicit indication of its position on the latter. If the Legislature intended a change in this evidentiary rule, it would not have so obliquely accomplished such result. Our conclusion is that a diametric legislative intent is exceedingly more plausible.

Any remaining doubt as to the merit of a rule of inadmissibility of a surviving spouse’s remarriage is extinguished upon consideration of the nature of the loss for which we seek to provide recompense. If there be any disconcerting foible in the character of American jurisprudence, it is that such personal losses as the society and companionship of a deceased family member are relegated to compensability in terms of currency. Yet it appears that no alternative is available.

The myriad of facets that comprise an emotional relationship between persons defies specification. To compensate the survivor of such relationship for its termination by the negligence of another must, perhaps of necessity, devolve upon the intuitive notion of the trier of fact. Permitting the introduction of evidence that another relationship was formed to mitigate such damages would place an imponderable burden upon the evaluation process, making the task beyond the capability of the fact-finder. Further, such a rule is necessarily premised upon the assumption that human beings are interchangeable, a type of fungible commodity. This premise is offensive to our conception of human individuality.

We, therefore, conclude that the trial court erroneously denied plaintiff’s motion for a protective order. This case is remanded for trial with instructions that the plaintiff be granted a protective order to preclude introduction of evidence of her remarriage.

Reversed and remanded. Costs to plaintiff.

       To gain some appreciation for the effect of this amendment to the wrongful death act, MCL 600.2922; MSA 27A.2922, a brief review of the evolution of recovery for loss of society and companionship and the related evidentiary question of a plaintiff-spouse’s remarriage is warranted.
      Initially, recovery for wrongful death, in statutory terms, was comprised of "such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death * * * ”. MCL 600.2922(2); MSA 27A.2922(2). Pecuniary injury was construed in Wycko v Gnodtke, 361 Mich 331; 105 NW2d 118 (1960), to include the element of the decedent’s society and companionship.
      Five years later the Supreme Court decided Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965). Notable for the thoroughness of its analysis and comprehensive reconciliation of prior contrary pronouncements, the Bunda Court concluded that evidence of a spouse’s remarriage is inadmissible in wrongful death actions.
      Following another half-decade, the Supreme Court decided Breckon v Franklin Fuel Co, 383 Mich 251; 174 NW2d 836 (1970). Addressing specifically the Wycko decision, the Court concluded that any assertions therein tending to permit recovery for loss of society and companionship, were mere dicta. Id. at 275; 174 NW2d at 845. The Court went on to hold that, since the term "pecuniary injury” was explicit and did not contemplate loss of society and companionship as an element of recovery, such damages could not be obtained in a wrongful death action. Id. at 277-278; 174 NW2d at 845-846. However, the decision in Bunda, as to the admissibility of a plaintiff-spouse’s remarriage, was not evaluated by the Court.
      In the ensuing year the Legislature enacted 1971 PA 65, § 1, which became effective in 1972. It changed the first sentence of MCL 600.2922(2); MSA 27A.2922(2), from:
      "(2) Persons entitled to sue; damages, distribution. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death.” (Emphasis added.) to read as follows:
      "(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death.” (Emphasis added.)
      Additionally, the amendment added the following express provision:
      "The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased.”
      Defendants predicate admissibility pursuant to the revised statute on the language "under all the circumstances.”

       This decision merely reiterated the holding in Thompson v Peters, 26 Mich App 590; 182 NW2d 763 (1970), rev'd on other grounds, 386 Mich 532; 194 NW2d 301 (1972). Thompson held that evidence of the plaintiff-spouse’s remarriage was inadmissible, but added the proviso “absent a proper showing of its relevancy and materiality to some issue or issues in the case”. Id. at 598; 182 NW2d 767. Apparently, in the instant case, defendants rely upon the implication of the proviso to reason that such evidence is relevant to damages for loss of society and companionship.

        Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965), was decided long before the statutory amendments applicable to the case under review. Similarily, Bradfield v Estate of Burgess, 62 Mich App 345; 233 NW2d 541, lv den, 395 Mich 803 (1975), involved a cause of action accruing before the amendment with which we are here concerned. Another case decided by this Court, Hollis v Abraham, 67 Mich App 426; 241 NW2d 231 (1975), reached the same conclusion as Bunda and Bradñeld, but made the rule of inadmissibility applicable in dramshop actions.

       Indeed, our research has disclosed only two American jurisdictions opting for a rule of admissibility. See Campbell v Schmidt, 195 So 2d 87 (Miss, 1967), and Jensen v Heritage Mutual Ins Co, 23 Wis 2d 344; 127 NW2d 228 (1964). Neither case is comparable in the comprehensiveness of its analysis to the decision of our Supreme Court in Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965). Nor can the existence of two cases of relatively early vintage be deemed to signify a trend in American jurisprudence.


author: D. C. Riley, P. J. T. M. Burns, J.

text:
    RELIANCE INSURANCE COMPANY v MESSINA TRUCKING, INC.
    Docket No. 77-1273.
    Submitted March 21, 1978, at Detroit.
    Decided May 9, 1978.
    Reliance Insurance Company brought an action in Macomb Circuit Court seeking to recover workmen’s compensation benefits paid to Lawrence McCoy from any damages awarded to McCoy in his personal injury suit against defendants Jerry Drake and Messina Trucking. Defendants moved for summary judgment contending they were not liáble for any wage loss or medical damages under Michigan’s no-fault automobile insurance law. Motion denied, Howard R. Carroll, J. The court held plaintiff had a right to recover benefits paid to McCoy. Defendants appeal by leave granted. Held:

    A statute which restricts recovery from a third-party tortfeasor by a seriously injured plaintiff only to his noneconomic losses and then requires him to reimburse his insurance carrier from this noneconomic recovery for monies paid by the carrier to cover economic losses violates the equal protection clause of the constitution.
    Reversed.
    T. M. Burns, J., concurred separately.
    Opinion op the Court
    1. Automobiles—Negligence—Insurance—No-Fault Insurance— Third-Party Tortfeasor—Damages—Statutes.
    Tort recovery against a third-party tortfeasor in a traffic accident is limited by provisions of the no-fault law to: (1) intentionally caused harm, (2) damages for noneconomic losses where the injured party has suffered death, serious impairment of body function or permanent serious disfigurement, and (3) damages for economic losses (wage losses, medical bills, etc.) in excess of the limitations on coverage provided in the injured party’s own insurance (MCL 500.3135; MSA 24.13135).

      References for Points in Headnotes

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 14, 15, 25 et seq.

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 9, 11, 12, 13.
    Right of insurer to reimbursement out of recovery against tortfeasor. 69 ALR3d 830.
    Validity and construction of “no-fault” automobile insurance plans. 42 ALR3d 229.

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 9, 11-15, 22.

      2. Automobiles—Negligence—Insurance—Serious Injury—Noneconomic Losses—Insurance Reimbursement—Constitutional Law—Equal Protection.
    A plaintiff suffering death, serious impairment of bodily functions or permanent serious disfigurement in an automobile collision is restricted by the no-fault statute in his recovery from the tortfeasor only to his noneconomic losses; it is a violation of the equal protection clause of the constitution for the statute to then require the injured party to reimburse his insurance carrier from this noneconomic recovery for monies paid by the carrier to cover economic losses (Const 1963, art 1, §§ 2, 17, MCL 500.3135; MSA 24.13135).
    Concurrence by T. M. Burns, J.
    3. Automobiles—Negligence—Insurance—-Third-Party Tortfeasors—Serious Injuries—Indemnification—Constitutional Law—Equal Protection.

      A statute which requires indemniñcation to a workmen’s compensation insurance earner by victims of third-party tortfeasors who suffer serious injuries is in violation of the equal protection clause of the constitution (Const 1963, art 1, § 2).

      Jacobs, Lichtenstein & Miller, for plaintiff.

      Glime, Daoust & Wilds, for defendants.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   D. C. Riley, P. J.

This appeal concerns an action by a workmen’s compensation carrier for reimbursement of benefits it paid to an insured employee, injured in a traffic accident, from the third-party tortfeasor.

Plaintiff Reliance Insurance Company is the workmen’s compensation carrier for Sterling Construction Company, employer of Lawrence McCoy. McCoy was injured while working at a construction site when he was hit by a truck driven by defendant Jerry Drake and owned by defendant Messina Trucking. In this lawsuit Reliance, as subrogee of McCoy, seeks to recover the benefits it paid to McCoy against any damages awarded McCoy in a personal injury suit against defendants. Apparently McCoy has filed a lawsuit against defendants.

Defendants moved for summary judgment, arguing that they were not liable, under the limitation on tort recovery set forth in Michigan’s no-fault automobile insurance law, for any wage loss or medical damages suffered by McCoy. Therefore, defendants argued, Reliance as subrogee of McCoy’s right to recover could not set off its payment of these economic damages against McCoy’s anticipated damages from defendants.

The trial court denied the motion for summary judgment, holding that the workmen’s compensation carrier had a right to recover benefits paid from a third-party tortfeasor. Defendants appeal, by leave granted, from this ruling.

There is no dispute that tort recovery against a third-party tortfeasor in a traffic accident is limited by provisions of the no-fault law to: (1) intentionally caused harm, (2) damages for noneconomic losses where the injured party has suffered death, serious impairment of body function or permanent serious disfigurement, and (3) damages for economic losses (wage losses, medical bills, etc.) in excess of the limitations on coverage provided in the injured party’s own insurance. MCL 500.3135; MSA 24.13135.

The right of a workmen’s compensation carrier to recoup benefits paid from a third-party is set forth in MCL 418.827; MSA 17.237(827). In its pertinent part, this statute reads:

"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” (Emphasis added.) MCL 418.827(5); MSA 17.237(827)(5).

Under this provision, Reliance can seek recovery from defendants only to the extent that McCoy could sue in tort under the no-fault law.

Given the statutory limitations, the threshold question is whether Reliance can recover its benefits paid for McCoy’s economic losses from an amount McCoy could receive in tort action for noneconomic damages and economic losses in excess of his insurance coverage. This question was reached by the Michigan Supreme Court in Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975).

In Pelkey the factual setting of the case was parallel to the case at bar, except that the suit arose prior to the enactment of the no-fault law. The lower court in Pelkey ordered that the injured employee reimburse the workmen’s compensation carrier for benefits paid out of the amount the employee recovered in pain and suffering damages from the third-party tortfeasor. The employee raised the same argument as is set forth in the instant case; namely, that the carrier should not be allowed to recoup its payments for economic damages from a recovery for noneconomic losses.

The Pelkey Court rejected that argument, holding that the clear legislative intent of the language "any recovery” in MCL 418.827; MSA 17.237(827), was to include damages recovered for pain and suffering in a personal injury suit.

The Court also held that the reimbursement scheme did not violate the employee’s rights to due process of law or equal protection. The due process argument was answered by reference to the 1952 amendment to MCL 413.15; MSA 17.189, which eliminated the previous requirement that an injured employee elect to pursue either his or her tort remedy against the third-party tortfeasor or the statutory remedy against the compensation carrier. 1952 PA 155. The Court held that the "right to reimbursement is justified by the abrogation of the election of remedies requirement”. 394 Mich at 493. The equal protection contention was decided by the Court holding that there was a rational basis for a distinction between employees who suffered compensable injuries and those who did not.

Were it not for the added feature of no-fault insurance in the case at bar, we would be unable, regardless of our individual opinions on the result reached, to distinguish Pelkey, supra, from the present situation. See Wrobel v Wayne County Road Commission, 79 Mich App 484; 261 NW2d 58 (1977). However, the introduction of no-fault, and its concurrent limitation on tort recovery, calls for us to re-examine the applicability of Pelkey to the facts of this case.

In Murray v Ferris, 74 Mich App 91; 253 NW2d 365 (1977), this Court was required to decide the constitutionality of MCL 500.3116; MSA 24.13116, which provided that economic benefits paid to an injured insured under the insured’s no-fault policy could be recouped from any non-economic damages the insured recovered in a residual tort action against a third-party. The Murray Court held that the statute violated equal protection since it set up a classification of insureds who were required to repay their insurance benefits received solely on the basis of the severity of their injuries:

"The function of recovery in tort is to make the victim whole.
"Victims of minor accidents have their medical bills and property damage paid promptly. They are paid for their lost wages. They are made 'whole’.
"But where the accident is more serious, with the victim having suffered death, serious impairment of bodily function or permanent serious disfigurement, the benefits are inadequate, prompting the injured party to file suit. Before he can have any effective recovery, however, he must repay his insurer for benefits previously paid, benefits for which he cannot sue or recover.
"The act creates two classes of accident victims. One class consists of those persons who have relatively minor accidents for which their insurance benefits satisfactorily compensate. They are not required to indemnify their insurance company. The other class includes those persons who suffer more serious injury or whose economic loss exceeds the statutory maximum. These persons are limited in their right to sue for damages not included under the no-fault act. They then become obligated to indemnify their insurer to the extent of benefits previously paid.
"In our opinion the requirement of indemnification by those victims suffering serious injuries constitutes an arbitrary discrimination in violation of equal protection of the laws and due process of law. Const 1963, art 1, § 2, Const 1963, art 1, § 17.” 74 Mich App at 95-96.

If we were to apply Pelkey to the case at bar, thereby requiring reimbursement to plaintiff for benefits paid out of McCoy’s eventual residual tort recovery, would we not face the same equal protection problem as evidenced in Murray, supra? We agree with the Murray Court’s reasoning that a requirement of indemnification by only "seriously” (i.e., those who can sue in tort) injured employees to their workmen’s compensation carriers violates equal protection.

The rationale of this decision is founded in the tort theory expressed by the Murray Court, which is to make the injured party whole. At the time that Pelkey was decided, the injured employee could sue for economic damages against the third-party tortfeasor. Allowing the compensation carrier to be reimbursed out of the tort recovery would prevent the injured party from double recovery of the economic damages. Under no-fault, no like possibility of double recovery is present since the employee is limited in tort to noneconomic damages. If we require reimbursement where there was no duplicate recovery, we frustrate the objective of making the injured person whole.

Accordingly, we hold that MCL 418.827(5); MSA 17.237(827)(5), is unconstitutional as applied to employees injured in automobile accidents where tort recovery is limited by MCL 500.3135; MSA 24.13135. The decision of the trial court is reversed and the matter remanded to the trial court for an order of summary judgment in favor of defendant.

No costs, a public issue being involved.

Cynar, J., concurred.

T. M. Burns, J.

(concurring). This case. presents substantially the same fact pattern as was present in Wrobel v Wayne County Road Commission, 79 Mich App 484; 261 NW2d 58 (1977). I wrote separately in Wrobel, 79 Mich App at 486 (T. M. Burns, concurring), outlining what appeared to me to be an equitable method of reimbursement for a workmen’s compensation carrier who had paid compensation benefits. At that time I believed Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975), applied to this situation and reluctantly concurred in the result reached by the majority in Wrobel.

After examining Judge Riley’s opinion, I am convinced that my reluctance to distinguish Pelkey in Wrobel was based on an erroneous premise and I now join in Judge Riley’s opinion in this case. Pelkey is distinguishable on the basis of the type of recovery available to the injured worker in a third-party suit. Pelkey does not control here.

       MCL 500.3135; MSA 24.13135.

       We need not discuss the question of a possible double recovery involving workmen’s compensation benefits and benefits received from the employee’s own insurance since that issue is not raised in the present case.


author: J. H. Gillis, J. N. J. Kaufman, J.

text:
    BOUSER v CITY OF LINCOLN PARK
    Docket No. 77-1410.
    Submitted January 3, 1978, at Detroit.
    Decided May 9, 1978.
    Leave to appeal granted, 403 Mich 828.
    An action by Margaret Bouser and William Bouser against the City of Lincoln Park, G. A. Morrison Company and Pate, Hirn and Bogue, Inc., for damages for personal injuries suffered by Margaret Bouser when she tripped on a curb constructed higher than the adjoining sidewalk. The sidewalk and curb had been designed by Pate, Hirn and Bogue, Inc., and constructed by G. A. Morrison Company for the city. A motion by Pate, Hirn & Bogue, Inc., for accelerated judgment was granted, as to that defendant only, Wayne Circuit Court, John M. Wise, J., based on the statute which establishes a six-year period of limitations for personal injury claims arising from the performance, furnishing of designs or supervision of construction by registered engineers and licensed architects. The construction in question had taken place more than ten years prior to the commencement of the personal injury action. Plaintiffs appeal. Held:

    The statute relied on by the trial court is a statute of abrogation, not one of limitation and is constitutional as applied to the plaintiffs’ claim. Therefore, the trial court’s grant of accelerated judgment for defendant Pate, Hirn & Bogue, Inc., was proper.
    Affirmed.
    N. J. Kaufman, J., concurred.
    Application of the statute to the facts of the case at bar raised no question of equal protection. Had such questions been raised by this case, the statute should have been declared unconstitutional.
    References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 181, 185.

       51 Am Jur 2d, Limitation of Actions §§ 31-43.
    73 Am Jur 2d, Statutes § 199.

       51 Am Jur 2d, Limitation of Actions § 13 et seq.

    73 Am Jur 2d, Statutes § 181.

       73 Am Jur 2d, Statutes §§ 155-160, 194, 195, 275.

       16 Am Jur 2d, Constitutional Law §§ 538, 539.

      Opinion of the Court
    1. States—State Legislature—Abolishment of Cause of Action-Constitutional Law—Statutes of Abrogation.
    The Legislature has the authority to abolish a cause of action which has not accrued; statutes enacted pursuant to this authority are statutes of abrogation (Const 1963, art 3, § 7).
    2. Limitation of Actions—Statute of Limitations—Statutes of Abrogation.
    A key factor to consider in determining whether a statute barring a cause of action after the lapse of a specific time period is one of limitation or abrogation is the legislative intent underlying the enactment of the statute.
    3. Limitation of Actions—Statutes of Abrogation—State Licensed Architect—Real Property Improvement—Statutes.
    The statute which expressly prohibits any lawsuits against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of improvement to real property more than six years after the time of occupancy of the completed improvement, use or acceptance of such improvement is one of abrogation in respect to claims which accrue after the designated six-year period (MCL 600.5839; MSA 27A. 5839).
    4. Statutes—Ambiguities—Judicial Construction—Legislative Purpose—Object of Statute.
    A statute which is ambiguous or susceptible to two or more interpretations is open to judicial construction and should be construed reasonably in light of the legislative purpose of the statute and the object sought to be accomplished.
    Concurrence by N. J. Kaufman, J.
    5. Constitutional Law—Equal Protection—Limitations—Statute of Abrogation—Statute.

      In an appeal where the facts of the case do not present any equal protection questions with regard to the application of a statute which prohibits any lawsuits against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of improvement to real property more than six years after the time of occupancy of the completed improvement, use or acceptance of such improvement the constitutionality of the statute is not at issue; if such a question were before the Court, the statute should be de

      dared unconstitutional as a violation of equal protection (US Const, Am XIV, Const 1963, art 1, § 2, MCL 600.5839; MSA 27A.5839).

      Milan & Miller, P. C., for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Dennis M. Day and Jeannette A. Paskin), for defendant Pate, Hirn and Bogue, Inc.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   J. H. Gillis, J.

On April 9, 1975, while walking in the City of Lincoln Park, plaintiff Margaret Bouser tripped on a curb constructed higher than the adjoining sidewalk, causing her to fall. She suffered permanent injury from a fracture of the left fibula and left tibia.

On August 26, 1976, plaintiffs started a lawsuit in Wayne County Circuit Court against the City of Lincoln Park, G. A. Morrison Company (the construction firm) and Pate, Hirn and Bogue, Inc. (the architectural firm). Plaintiffs alleged that defendant city was guilty of negligence and willful and wanton negligence in hiring the architects and the construction company, and failing to inspect, maintain and repair the sidewalk. The other defendants were alleged to have provided a defective and dangerous curb and sidewalk and failed to warn foreseeable users of the curb and sidewalk of the hazard.

On October 28, 1976, defendant, Pate, Hirn and Bogue, Inc., filed a motion for summary and/or accelerated judgment, contending that MCL 600.5839; MSA 27A.5839 establishes a six-year statute of limitations for personal injury claims arising from the performance, furnishing of designs or supervision of construction by registered engineers and licensed architects; that plaintiffs’ claim accrued more than ten years after the completion of the sidewalk and its turning over to the city; and that the claims were therefore barred. On December 2, 1976, plaintiffs filed a reply asserting that MCL 600.5839; MSA 27A.5839 is unconstitutional.

The trial judge upheld the view of defendant Pate, Hirn and Bogue, Inc. Plaintiffs appeal.

It is well settled that the Legislature of this state has the authority to abolish a cause of action which has not accrued. Const 1963, art 3, § 7. Statutes enacted pursuant to this authority are statutes of abrogation. See Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).

Plaintiffs contend that the statute at issue in the instant matter is one of limitation which cannot abolish a cause of action before it accrues. We disagree.

The Dyke case, supra, indicates that the legislative intent underlying the enactment of the statute is a key factor to consider in determining whether a statute is one of limitation or abrogation.

The Legislature has set forth rather unambiguous language in MCL 600.5839; MSA 27A.5839 concluding that the 6-year period in which actions may be brought begins to run at the time of occupancy of the completed improvement or upon acceptance of such improvement.

"No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.” MCL 600.5839(1); MSA 27A.5839(1). (Emphasis supplied.)

Hence, the statute expressly prohibits any suits six years after the individual accepts the improvements. Accordingly, the statute is one of abrogation in respect to claims which accrue after the designated six-year period.

Plaintiffs’ brief on appeal rejects this analysis on the basis of the Dyke case, supra.

However, the statute construed to be one of limitation in the Dyke case does not specifically state when the period within which to maintain an action begins to run. Instead, it concludes that the limitation period begins to run when the cause of action accrues.

"No person may bring or maintain any action to recover damages for injuries to persons * * * unless, after the claim ñrst accrued * * * he commences the action within the periods of time prescribed by this section.” MCL 600.5805; MSA 27A.5805. (Emphasis supplied.)

As noted by Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 151; 200 NW2d 70 (1972):

"Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run.”

A careful reading of the statute at issue in the Dyke case indicates that the Legislature did not intend to eliminate a cause of action before it accrued. The purpose of the enactment was to limit the period in which actions could be maintained after they accrued.

However, the distinct language of the statute in the instant matter strictly prohibits any actions six years after occupancy or acceptance of the improvement. The statute does not concern itself with when the cause of action accrues. Accordingly, the plain language of the enactment leads us to the conclusion that the Legislature intended to abrogate any cause of action arising under the statute after the specific six-year period has run.

To hold otherwise, would require us to ignore well-settled principles of statutory construction.

"A statute may be judicially construed if the language used is ambiguous or the statute is susceptible of two or more meanings. Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976). The primary rule of statutory construction is to determine and effectuate the Legislature’s intent. Williams v Secretary of State, 338 Mich 202; 60 NW2d 910 (1953), Chesapeake & Ohio R Co v Public Service Commission, 59 Mich App 88; 228 NW2d 843 (1975). Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. Schoolcraft County Board of Commissioners v Schoolcraft Memorial Hospital Board of Trustees, 68 Mich App 654; 243 NW2d 708 (1976).” King v Director of the Midland County Department of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).

Statutes should also be construed as to avoid constitutional infirmity.

An application of the aforementioned principles to the instant statute leads us to the conclusion that the statute is constitutional as applied to plaintiffs’ claim.

Affirmed. Costs to appellees.

Bashara, P. J., concurred.

N. J. Kaufman, J.

(concurring). I concur in the result reached by the majority opinion as I agree that no question of equal protection is properly raised by the facts of this case. Had such a question been before us, I would have found MCL 600.5839; MSA 27A.5839 unconstitutional as a violation of the principle of equal protection under law embodied in the Fourteenth Amendment of the United States Constitution and Article I, § 2 of the Michigan Constitution of 1963. See Muzar v Metro Town Houses, 82 Mich App 368; 266 NW2d 850 (1978).

         Also see Bean v McFarland, 280 Mich 19; 273 NW 332 (1937), Grubaugh v City of St Johns, 384 Mich 165; 180 NW2d 778 (1970).

        See Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).

       "Since '[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought * * * ’, Price [v Hopkin], supra, [13 Mich 318 (1965)], a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.
      "Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action.” Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973).

        See Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978), which also deal with the constitutionality of MCL 600.5839; MSA 27A.5839. See also People v Harrington, 396 Mich 33; 238 NW2d 20 (1976).

       Plaintiff has no standing to challenge the statute at issue on equal protection grounds and, therefore, we will not address this issue.


author: T. M. Burns, J. R. M. Maher, J.

text:
    AETNA CASUALTY & SURETY COMPANY v BELCHER
    Docket No. 77-1665.
    Submitted February 8, 1978, at Detroit.
    Decided May 9, 1978.
    Leave to appeal applied for.
    Frank Belcher was injured while he was a guest passenger in another’s automobile when it was struck by an uninsured motorist. Belcher pursued a claim under the uninsured motorist provision of his host’s automobile insurance policy and received payment pursuant to an arbitration award. He then sought arbitration with Aetna Casualty & Surety Co. under his own policy which also provided uninsured motorist protection. Aetna sought a declaratory judgment that Belcher was not entitled to recover under its policy and also sought an order restraining arbitration, relying upon an "other insurance” clause in the Aetna policy. The Wayne Circuit Court, James Montante, J., determined that the "other insurance” clause was against public policy at the time of the accident and did not bar arbitration of Belcher’s claim. Aetna appeals. Held:

    The clause in the Aetna policy which bars a claim under the policy’s uninsured motorist protection is against public policy expressed in a statute which required insurers to include uninsured motorist protection in automobile insurance policies even though that statute had been repealed at the time of the accident because the legislative intent of that statute, to reduce the number of claims against the Motor Vehicle Accident Claims Fund, was not changed so long as the fund remained vulnerable to claims from persons injured by uninsured motorists. Because the "other insurance” clause is against public policy the defendant may stack the insurance policies and may arbitrate his claim against Aetna.
    Affirmed.
    R. M. Maher, J., dissents, and would hold that the public policy represented by the statute requiring uninsured motorist coverage ceased with the repeal of the statute regardless of the fact that the Motor Vehicle Accident Claims Fund remained vulnerable to claims, and that, therefore, the "other insurance” clause in the Aetna policy is valid and enforceable.

      References for Points in Headnotes

       7 Am Jur 2d, Automobile Insurance §§ 135-138, 202, 203.

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 4, 8, 11,18.

       7 Am Jur 2d, Automobile Insurance § 135.

      Opinion op the Court
    1. Automobiles—Insurance—Uninsured Motorists—Statutes— Other Insurance Clauses.
    A former statute which required uninsured motorist protection in automobile insurance policies was enacted for the purpose of protecting the Motor Vehicle Accident Claims Fund by reducing the number of claims against the fund; the repeal of that statute did not necessarily indicate a change in the validity of "other insurance” clauses in automobile policies while the fund itself was still vulnerable to claims (MCL 500.3010; MSA 24.13010).
    2. Automobiles—Insurance—Uninsured Motorists—Statutes— Stacking Policies.
    A party who was injured by an uninsured motorist while a guest passenger in another’s automobile at a time when a statute requiring uninsured motorist protection in automobile policies had been repealed but when the Motor Vehicle Accident Claims Act was still in effect and who has recovered an amount from the host driver’s insurer may stack the uninsured motorist coverage of his own automobile policy and may have his claim against his own insurer arbitrated; his recovery is limited to the amount of his loss less the amount previously recovered under the host driver’s policy, or his own policy’s limit (MCL 500.3010; MSA 24.13010).
    Dissent by R. M. Maher, J.
    3. Automobiles—Insurance—Uninsured Motorists—Statutes.

      The fact that the Motor Vehicle Accident Claims Fund remained in effect after repeal of a statute which required uninsured motorists protection in automobile insurance policies has no significance in a case where the claimant was injured after the repeal of that statute because the public policy supporting that statute ceased when the statute was repealed (MCL 500.3010; MSA 24.13010).

    4. Automobiles—Insurance—Uninsured Motorists—Other Insurance Clause.

      There is no public policy which dictates that "other insurance” clauses regarding uninsured motorist protection in automobile

      insurance policies should be declared invalid where there is no statutory requirement that uninsured motorist protection be offered; an "other insurance” clause in a policy, which bars recovery by an insured where other insurance covers the loss, is valid and enforceable.

      Collins & Einhorn, P. C., for plaintiff.

      Goldstein, Meklir & Feldman, P. C., for defendant.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

The issue in this case is whether a guest passenger who was injured in an accident involving an uninsured motorist on April 11, 1974, and has been paid $18,000 after arbitration by the host driver’s insurance company under an uninsured motorist provision in that policy, is barred by an "other insurance” clause in his own policy from seeking arbitration against his own insurer. On the facts of this case, the trial court held he was not, and we agree.

Belcher was injured on April 11, 1974, while a guest passenger in an automobile driven by Harold Lowrey when Lowrey’s automobile was struck by an uninsured motorist. Three other individuals were riding with Lowrey and were also injured. The injured individuals filed claims with Lowrey’s insurer under the uninsured motorist provision in Lowrey’s policy and ultimately submitted them to arbitration. The arbitration of Belcher’s claim resulted in an award of $18,000. There has been no showing that this recovery fully compensated Belcher for the injuries he received in the accident. See, Detroit Automobile Inter-Insurance Exchange v Pulig, 80 Mich App 288; 263 NW2d 52 (1977).

After Belcher received payment from Lowrey’s insurer, he sought arbitration with Aetna under his own policy which also provided uninsured motorist protection. Aetna filed this action for declaratory relief and to restrain arbitration. The trial court determined that the "other insurance” clause which Aetna relied upon was against public policy at the time of the accident and, therefore, not a bar to arbitration. Aetna appealed to this Court.

The paragraphs of the policies upon which Aetna relies provide:

"With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the uninsured motorists coverage shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability in this insurance and such other insurance, and Aetna Casualty shall not be liable for a greater proportion of any loss to which this Uninsured Motorists Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

There are at least three possible theories which would allow Belcher to arbitrate, to some extent, Aetna’s liability even in the face of this clause.

First, the "other insurance available” clause could be construed to mean actually available for payment to Belcher. In this case, others were also injured in the accident, which may have resulted in the "each occurrence” limit being exhausted before the individuals were fully compensated. If this is true, the stated policy limit of $20,000 per individual was not actually available to Belcher. See, Anno: Uninsured Motorist Insurance: Validity and Construction of "Other Insurance” Provisions, 28 ALR3d 551, § 5. Here, that would mean the parties would arbitrate over a maximum of $2,000.

Second, the court could find the clause unconscionable because it has the effect of providing no coverage where, as here, the insured has paid a premium for protection of himself against uninsured motorists and is injured while a passenger in a car with similar coverage.. This theory has gained some favor in this Court. Detroit Automobile Inter-Insurance Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978), Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777, 783; 262 NW2d 904 (1977) (N. J. Kaufman, J. dissenting.) Application of this theory may seem particularly appealing where the primary recovery came from an insurer who had received no premium from the injured person, thus freeing the insurer who has received a premium from any liability if the clause is enforced as written.

A third theory, the one adopted by the trial court in this case, is that the provision is against public policy. For purposes of this case, we accept this narrower ground for imposing liability.

At the time of this accident, April 11, 1974, the provisions of the insurance code requiring uninsured motorist coverage in each policy of insurance delivered in this state, MCL 500.3010; MSA 24.13010, had already been repealed by 1972 PA 345. However, the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq., was still in effect and applicable to this incident. Under this act, persons injured by negligent uninsured motorists in this state are allowed to recover for their injuries, up to a specified sum, from a fund created by the act.

The purpose of requiring uninsured motorist protection as provided in former § 3010 was to protect the fund by reducing the number of claims against it. Collins v Motorists Mutual Insurance Co, 36 Mich App 424, 433; 194 NW2d 148 (1971), lv den, 388 Mich 812 (1972) (Judge, now Justice, Levin, concurring). The trial court found that the repeal of § 3010 did not necessarily indicate a change in the validity of other insurance clauses while the fund was still vulnerable. We agree.

The legislative intent to protect the fund continues as long as the fund is vulnerable to claims from persons injured by uninsured motorists. See note 4. Therefore, Belcher will be allowed to stack the policies and arbitrate his claim against Aetna. The amount recoverable is, of course, limited to the amount of his loss less the amount previously recovered under Lowrey’s policy, or the policy limit. Cf., Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464, 474-475; 201 NW2d 786 (1972).

Aetna relies on two Michigan Supreme Court cases which have approved this type of provision when former § 3010 was not applicable, in arguing the result suggested here is improper. These cases may be distinguished from the present situation.

In Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562, 566; 153 NW2d 655 (1967), the Court stated:

"We find no statutory or decisional law of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.”

There is a statute, the Motor Vehicle Accident Claims Act, applicable in this case. It is also noted that the result reached in Horr was to prorate the loss between the two insurers. Aetna is not claiming the loss should be prorated, it is claiming it has no liability at all.

Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476; 201 NW2d 792 (1972), may also be distinguished. The defendant in Rowland had issued both of the policies involved in that case. Here, two insurers are involved. The Court did not rely on the "other insurance” clause as Aetna does here, but on an exclusion contained in the policy which specifically stated the insurance provided by the policy did not apply if the injury occurred while the insured was occupying a nonowned automobile which had similar coverage. The exclusion applied and was enforced as written.

Perhaps more significant to our analysis here is the fact that the policy in Rowland was issued on September 25, 1965. This was before the effective date of § 3010 and that section was held not to apply even though the accident occurred after the effective date of the act. The Supreme Court did not discuss the Motor Vehicle Accident Claims Act in Rowland, but we note the policy in issue there was also issued before the effective date of that act. MCL 257.1131; MSA 9.2831.

Thus, the Motor Vehicle Accident Claims Act was not a factor in the Supreme Court’s determination in either Horr or Rowland, and neither was the policy of protecting the fund. As stated above, that policy continues even after the repeal of § 3010. The cases referred to by Aetna do not control this situation.

Affirmed. Costs to appellee.

M. J. Kelly, P. J., concurred.

R. M. Maher, J.

(dissenting). On April 11, 1974, Frank Belcher was injured in an accident caused by an uninsured motorist who hit the car in which Belcher was a passenger. From his host driver’s insurance company, Belcher collected $18,000. He then filed a demand for arbitration with his own insurance company, Aetna.

Aetna filed a complaint for declaratory judgment and a request for a temporary restraining order, based upon its contention that the "other insurance” clause in Belcher’s policy prevented Belcher from instituting a claim as to Aetna. On November 3, 1976, Aetna filed a motion for summary judgment. The trial court found that the other insurance clause violated public policy since, at the time of the accident, the Motor Vehicle Accident Claims Act was still in effect. Summary judgment was granted in favor of Belcher on April 22, 1977. The court was thus allowing defendant Belcher to stack uninsured motorist benefits from two policies issued by different insurance companies.

In 1965, the Michigan Legislature passed MCL 500.3010; MSA 24.13010, which required uninsured motorist coverage. The purpose of MCL 500.3010 was to protect the Motor Vehicle Accident Claims Fund from liability when uninsured motorist coverage was available. Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464; 201 NW2d 786 (1972).

MCL 500.3010 was repealed on October 1, 1973 by the enactment of the no-fault act, MCL 500.3101 et seq., MSA 24.13101 et seq., though the Motor Vehicle Accident Claims Fund was allowed to remain in effect until July 26, 1974. It was during this interim period that Belcher sustained his injuries.

That the Motor Vehicle Accident Claims Fund remained in effect for a period after MCL 500.3010 was repealed is not significant to the outcome of this case. The public policy with which the trial court concerns itself ceased with the repeal of MCL 500.3010.

In those cases in which the courts have found "other insurance” clauses invalid because they violated public policy, MCL 500.3010 was in effect. See, e.g., Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, supra. The objection to other insurance clauses has clearly been on the basis of statutory illegality—this was the public policy considered by the courts.

In Rowland v Detroit Automobile Inter-Insurance Exchange, 388 Mich 476; 201 NW2d 792 (1972), a case reported at the same time as Blakeslee, the Court chose to enforce the "other insurance” clause because, it found, the statute was not controlling. The insurance policy containing the clause had been issued before the effective date of the statute.

Rowland, therefore, did not consider any public policy considerations other than statutory illegality, such as claims against the uninsured motorist fund, which did exist at the time of the injury in Rowland. Any public policy arguments made were based on and originated solely from the statute. See Tierney, Insurance, 20 Wayne L Rev 471, 478 (1974).

"Other insurance” clauses have been specifically approved by our courts in times, like the present, when uninsured motorist coverage was not required. In Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562; 153 NW2d 655 (1967), the Michigan Supreme Court held that an "other insurance” clause precluded stacking of uninsured motorist benefits between two insurance companies. After finding no statutory or decisional law applicable, the Court attempted to determine the intent of the contracting parties in interpreting the "other insurance” clause. The Court gave the "other insurance” clause its literal meaning and used it to prorate the coverage between the two insurers.

Horr was followed by Arminski v United States Fidelity & Guaranty Co, 23 Mich App 352; 178 NW2d 497 (1970), in which plaintiff was not allowed to stack two uninsured motorist provisions issued to him in a single policy. Arminski, like Horr, grew out of incidents which occurred before the statutory requirement of uninsured motorist coverage went into effect.

In Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977), the injuries occurred after the repeal of MCL 500.3010. Kozak, it must be noted, relied upon the law as it existed before the enactment of MCL 500.3010 (i.e., Horr and Arminski). In Kozak, the Court prohibited an insured from pyramiding his damages by stacking uninsured motorist coverage from multiple insurance policies issued by a single insurer. The Court found no considerations of public policy, such as existed by reason of the statute in Blakeslee.

I conclude, therefore, that when, as in Rowland, Horr, Arminski and Kozak, MCL 500.3010, which requires uninsured motorist coverage, is not in effect, there is no public policy which dictates that "other insurance” clauses be declared invalid. In cases arising out of pre-MCL 500.3010 situations (Rowland, Horr, Arminski) and in cases after the repeal of § 3010 (Kozak, which looked for guidance to pre-§ 3010 law), the courts have found other insurance clauses are enforceable. I, too, find the "other insurance” clause in defendant’s Aetna policy to be valid and enforceable.

       If the clause does not prevent Belcher from arbitrating his claim against Aetna, it would still make this policy only a secondary source of recovery without apportionment. That is, Lowrey’s policy is primarily liable up to the limit stated therein and this policy acts as excess insurance up to the total amount of the insured’s loss. See discussion in Werner v Traveler’s Indemnity Co, 55 Mich App 390, 395-396; 222 NW2d 254 (1974).

       Uninsured motorist coverage applies to people, not automobiles and provides protection wherever an insured happens to be and no matter what he happens to be doing, unless a valid exclusion applies. See, Hickman v Community Service Insurance Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Insurance Co, 78 Mich App 67; 259 NW2d 378 (1977), Ellis v State Farm Insurance Co, 78 Mich App 189; 259 NW2d 421 (1977).

       There is no doubt that while § 3010 was in effect the clause in question here would not prevent stacking. Blakeslee v Farm Bureau Mutual Insurance Company of Michigan, 388 Mich 464, 474-475; 201 NW2d 786 (1972).

       By express provision, the act does not apply to accidents after the effective date of 1975 PA 322. MCL 257.1133; MSA 9.2833.
      The Legislature also amended § 5 of the act, MCL 257.1105; MSA 9.2805, by adding the last two sentences of that provision by 1974 PA 223 which became effective July 26, 1974. The amendments to § 5 made the act inapplicable to some situations where "no-fault” benefits are available.
      Neither of these amendments are applicable to this case.