author: Per Curiam. R. B. Burns, P.J.,

text:
    LINDSEY v HARTFORD ACCIDENT & INDEMNITY COMPANY
    Docket No. 78-528.
    Submitted March 6, 1979, at Grand Rapids.
    Decided June 6, 1979.
    Gary J. Lindsey was injured while unloading a trailer at a loading dock. The trailer was owned by Lindsey’s employer and was insured by Carriers Insurance Company. The tractor used to haul the trailer was owned by Lindsey and was insured by Hartford Accident and Indemnity Company. In addition, Lindsey owned a personal vehicle insured by Detroit Automobile Inter-Insurance Exchange. Lindsey brought an action against Carriers Insurance and Hartford for recovery of no-fault benefits. Later, he added DAIIE as a party defendant. Carriers moved for summary judgment, alleging that the exclusive remedy provision of the Worker’s Disability Compensation Act precluded the plaintiff from recovery of no-fault benefits. The motion for summary judgment was granted, Kent Circuit Court, George V. Boucher, J. Plaintiff appeals by leave granted, and defendant Carriers cross-appeals. Held:

    1. The injured employee is not barred by the exclusive remedy provision of the Worker’s Disability Compensation Act from recovery of no-fault benefits from the insurer of his employer’s vehicle.
    2. The insurer is entitled to deduct from the no-fault benefits any amounts paid or to be paid to the plaintiff as workmen’s compensation benefits.
    Reversed and remanded.
    R. B. Burns, P.J., dissented. He would hold that the exclusive remedy provision of the Workmen’s Disability Compensation Act precludes recovery of no-fault benefits. He would not reach the issues of priority among insurers or of the setoff of workmen’s compensation benefits, as those issues were not presented to the trial court for resolution.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation § 341.
    New Topic Service, No-Fault Insurance § 20.

       82 Am Jur 2d, Workmen’s Compensation §§ 673, 674.
    44 Am Jur 2d, Insurance § 1424.

       4 Am Jur 2d, Appeal and Error § 545.

      Opinion op the Court
    1. Insurance — Motor Vehicles — No-Fault — Workmen’s Compensation — Statutes.
    The exclusive remedy provision of the Worker’s Disability Compensation Act does not bar recovery by an injured employee of no-fault personal protection benefits from his employer or its insurer where the injury occurs during the course of employment while the employee is an occupant of a vehicle owned by the employer (MCL 418.131, 500.3114[3]; MSA 17.237[131], 24.13114[3]).
    2. Insurance — Motor Vehicles — No-Fault — Workmen’s Compensation — Setoff — Statutes.
    An insurer which is liable for payment of personal protection benefits, under a no-fault motor vehicle insurance policy, to an employee who was injured in the course of his employment while occupying a vehicle owned by his employer is entitled to deduct from those benefits any amounts which the employee is entitled to receive as workmen’s compensation as a result of the injury (MCL 500.3109[1]; MSA 24.13109[lj).
    Dissent by R. B. Burns, P.J.
    3. Insurance — Motor Vehicles — No-Fault — Workmen’s Compensation — Statutes.

      The exclusive remedy provision of the Worker’s Disability Compensation Act precludes recovery of personal protection benefits from an employer’s no-fault automobile insurance carrier by an employee injured in the course of his employment while an occupant of a vehicle owned by his employer (MCL 418.131; MSA 17.237[131]).

      4. Appeal and Error — Issues not Presented at Trial.

      Issues not presented to the trial court for initial resolution should not be considered for the first time on appeal.

      Norris, Keyser & Marshall, P.C., for plaintiff.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather and Ellen J. Eggers), for Carriers Insurance Company.

      Allaben, Massie, Vander Weyden & Timmer (by Timothy I. Miner), for Detroit Automobile Inter-Insurance Exchange.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   Per Curiam.

In this cause we are confronted with two questions on which prior panels of this Court have reached conflicting conclusions: (1) may an employee recover personal protection insurance benefits from his employer’s no-fault insurer, despite the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), where the employee is injured during the course of his employment while an occupant of a vehicle of the employer? (2) if the answer to issue (1) is "yes”, must the award against the employer’s no-fault insurer be reduced by the amounts paid in workers compensation benefits, or is such deduction a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution?

These issues arise out of an accident which occurred on June 14, 1976, while the plaintiff was unloading a trailer at a loading dock. The trailer belonged to his employer, Blodgett Furniture Service. At the time of the accident, the trailer portion of the truck was insured by Carriers Insurance Company (Carriers). The tractor or cab portion was owned by the plaintiff and leased to Blodgett Furniture Service and was insured by Hartford Accident and Indemnity Company (Hartford). The plaintiff’s personal motor vehicle was insured by Detroit Automobile Inter-Insurance Exchange (DAIIE).

On May 19, 1977, the plaintiff filed suit against Carriers and Hartford in Kent County Circuit Court claiming no-fault economic loss benefits, pursuant to MCL 500.3101, et seq.; MSA 24.13101, et seq. The plaintiff then added DAIIE as a party defendant in an amended complaint filed June 10, 1977. Carriers filed a motion for summary judgment. In its brief on the motion, Carriers argued that the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred suit against Carriers for no-fault benefits. The motion for summary judgment was also predicated on the theory that since plaintiff could not sue his employer, Blodgett Furniture Service, there could be no suit against the employer’s no-fault insurance carrier. On December 7, 1977, the trial court entered an order granting Carriers’ motion for summary judgment. The trial court’s order was based on the decision of Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), and the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act. MCL 418.131; MSA 17.237(131).

I.

This panel answers the first question in favor of the plaintiff. In so doing we reject Mathis and adopt the reasoning and conclusion expressed in the dissenting opinion in Ottenwess, supra, and in the unanimous opinion in Hubert, supra. We hold that the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), does not bar recovery of no-fault benefits from plaintiff’s employer or its insurer, Carriers. We find that MCL 500.3114(3); MSA 24.13114(3) authorizes plaintiff to receive no-fault personal protection insurance benefits from defendant.

Our resolution of this first question places the first priority for no-fault benefits upon Carriers and relieves the trial court of deciding priorities between Hartford, DAIIE and Carriers.

II.

Having decided that the entire liability is that of the employer’s no-fault carrier, the only remaining question to be decided is whether there should be deducted from the no-fault benefits any sums previously paid plaintiff or to which he may be entitled in worker’s compensation benefits. The trial court found it unnecessary to reach this issue but in its cross-appeal Carriers argues that if plaintiff is found to be entitled to no-fault benefits, any such award must be reduced by the amount of worker’s compensation benefits already paid or to be paid. Plaintiff responds, arguing that this issue was not raised in the trial court and therefore is not preserved for appeal. Additionally, plaintiff contends that if this issue is deemed properly before the Court, then the decision in Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218, 224; 261 NW2d 554 (1977), holding the offset provisions of § 3109(1) of the no-fault statute unconstitutional, is controlling.

Plaintiff is correct in asserting that the issue was not properly preserved for appeal. Issues not presented to the trial court are not properly before this Court. Oakland County v Detroit, 81 Mich App 308, 314; 265 NW2d 130 (1978). But because prior panels have split on this question and because the Supreme Court has just recently addressed the constitutionality of § 3109(1) in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), we will waive technicalities and will address the issue.

In O’Donnell, the Supreme Court sustained the constitutionality of the deduct or set-off provisions of § 3109(1). While that case pertained to set-offs of social security benefits, we believe its reasoning applies equally to worker’s compensation benefits. Furthermore, the decision in Pollock, supra, was strongly influenced by the Court of Appeals decision in O’Donnell holding § 3109(1) unconstitutional. Now that the Supreme Court has reversed the Court of Appeals in O’Donnell the vitality of Pollock is placed in doubt. On this issue another panel of this Court said in Hubert v Citizens Ins Co of America, supra, 713-714:

"If anything, the case for constitutionality of the set-off provision is stronger where workers’ compensation benefits are to be set off. * * *
"Since workers’ compensation benefits are not 'paid for’ by the employee, but rather by the employer and eventually the consumer, we see no basis for holding a setoff for such benefits to be unconstitutional. We are bound to follow O’Donnell and to reverse the judgment of the trial court.”

Accordingly, both the first and second questions raised at the outset of this opinion are answered in the affirmative.

Reversed and remanded to the trial court in accordance with this opinion. Costs to plaintiff.

R. B. Burns, P.J.,

(dissenting). I would find the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), precludes recovery of no-fault automobile insurance benefits by plaintiff against Carriers Insurance Company. Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), lv gtd, 403 Mich 852 (1979).

I would not reach the remaining issues raised by the parties, concerning priority among insurers and the propriety of set-off, those issues not having been presented to the trial court for initial resolution. See, e.g., Swartz v Laurencelle, 371 Mich 153, 166; 123 NW2d 244 (1963).

       Holding that the employee could not recover no-fault benefits if workers compensation benefits had been paid is Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), and the majority opinion in Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), Iv gtd 403 Mich 852 (1978). Reaching a contrary result and holding that the employee could recover from the employer’s no-fault carrier is the minority decision in Ottenwess and Hubert v Citizens Ins Co of America, 88 Mich App 710; 279 NW2d 48 (1979). For an informative discussion of the conflict in these decisions see Sinas, The Current Status of No-Fault — Increasing Discord in Appellate Court Decisions, Michigan State Bar Journal, Vol. 57, No. 9, p 724 (September, 1978).

       In Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977), the deduct or set-off provision of MCL 500.3109(1); MSA 24.13109(1) was found unconstitutional. Recently, another panel of this Court came to the opposite conclusion. Hubert v Citizens Ins Co of America, supra.

       DAIIE, though not a party to this appeal (DAIIE did not appeal), filed a brief raising questions of priorities between the three insurance companies. Plaintiff’s brief also raised priority questions as to DAIIE but only if this Court decided the first question adversely to plaintiff.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SISBARRO v CITY OF FENTON
    Docket No. 78-1699.
    Submitted January 10, 1979, at Lansing.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Louis and Patricia Sisbarro, John and Letha Dolza, H. O. Dexter, David and Ethel Davis, Lillie Green and Vernon Shuler commenced an action against the City of Fenton and the Treasurer of the City of Fenton in Genesee Circuit Court challenging a special assessment which the City of Fenton proposed to levy against the plaintiffs’ properties to defray the costs of paving and installing curbs and gutters along a street abutting their properties. Accelerated judgment for the defendant was granted on the basis that the Tax Tribunal had exclusive jurisdiction. The plaintiffs then filed a petition with the Tax Tribunal. The Tax Tribunal dismissed the petition because it was not timely filed. Plaintiffs appeal. Held:

    A provision in the Tax Tribunal Act sets out one time limit for invoking the Tribunal’s jurisdiction for "assessment disputes” and another time limit for "all other matters”. The term "assessment dispute” does not include special assessments. The plaintiffs did not file the petition within 30 days of the final decision of which they sought review, the time limitation for invoking the Tribunal’s jurisdiction in "all other matters”. The plaintiffs’ petition was barred by their failure to timely file the petition.
    Affirmed.
    1. Taxation — Words and Phrases — Tax Tribunal — Assessment Disputes — Time Limits — Jurisdiction — Statutes.
    The term "assessment dispute” as used in a provision of the Tax Tribunal Act which sets out the time limit for invoking the tribunal’s jurisdiction in an "assessment dispute” does not comprehend disputes over special assessments but refers only to an assessment dispute as to the valuation of property or where an exemption is claimed (MCL 205.735[3]; MSA 7.650[35][3]).
    References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation § 598.

       2 Am Jur 2d, Administrative Law § 656.

      2. Statutes — Interpretation op Statutes — Administrative Agencies — Tax Tribunal.
    The interpretation of a statute by the agency charged with administering it is entitled to respectful consideration; this deference has been accorded to the Tax Tribunal.

      Cline, Cline & Griffin, for plaintiffs.

      Albert H. Callahan, for defendants.
    Before: V. J. Brennan, P.J., and M. F. Cavan agh and C. J. Hoehn, JJ.

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

   Per Curiam.

Plaintiffs filed suit on January 17, 1978, in Genesee County Circuit Court to challenge a special assessment which the City of Fen-ton proposed to levy against them to defray the costs of paving and installing curbs and gutters on State Street, which abuts their property. On January 23, 1978, defendants moved for accelerated judgment on the basis that the Tax Tribunal had exclusive jurisdiction, citing the recently decided case of Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977). The next day, plaintiffs filed an appropriate petition with the Tax Tribunal, incorporating by reference the allegations made in the circuit court complaint. On February 21, 1978, defendants filed a motion urging the Tax Tribunal to dismiss plaintiffs’ petition on a number of grounds, including untimely filing. The tribunal granted defendants’ motion to dismiss in an order entered April 27, 1978, stating that plaintiffs’ petition "was not timely filed” under § 35(3) of the Tax Tribunal Act, MCL 205.735(3); MSA 7.650(35)(3). Pursuant to MCL 205.753(2); MSA 7.650(53)(2), plaintiffs timely claimed an appeal of right to this Court.

We first address plaintiffs’ argument that the apposite section of the Tax Tribunal Act is ambiguous. In § 35, the first sentence of subsection (3) sets out the time limit for invoking the tribunal’s jurisdiction in an "assessment dispute”. The second sentence of subsection (3) imposes a 30-day time limit for invoking the tribunal’s jurisdiction by petition in "all other matters”. Unless the reference to "assessment dispute” in the first sentence includes challenges to special assessments, plaintiffs’ petition is barred by their failure to file within 30 days of the final decision which they seek to review, i.e., the Fenton City Council’s confirmation of the special assessment roll.

When § 35 of the act is read as a whole, it is clear that the term "assessment dispute” does not comprehend disputes over special assessments. The first sentence of subsection (3) can only refer to "an assessment dispute as to the valuation of the property or where an exemption is claimed”, which is required by subsection (1) to be protested to the local board of review before the tribunal may acquire jurisdiction. Only with such a reading does the statutory deadline of "June 30 of the tax year involved” make sense. Property tax assessment rolls are prepared annually on or before the first Monday in March, MCL 211.24; MSA 7.24, and are reviewed during the ensuing month by local boards of review. MCL 211.30a; MSA 7.30(1). When the Tax Tribunal Act was first enacted by 1973 PA 186, the only provision setting time limits for invoking the tribunal’s jurisdiction was subsection 35(2). But that provision created problems which led the Legislature to add the present subsection (3) by 1976 PA 365. A clear expression of the legislative intent underlying that addition is found in the Analysis of the 1976 Amendment to § 35 (Senate Bill 1631), prepared by the House Legislative Analysis Section and dated September 29, 1976:

"a) The law has caused problems for property taxpayers because the sentence regarding 'final decisions, rulings, determinations, or orders,’ has been interpreted to mean those rulings made by the local boards of assessment review, which hear protests of property valuation and complete their work by the first Monday in April. Thus, a person wishing to protest an assessment of property must first file a protest with the board of review and, failing to gain satisfaction, can carry an appeal to the Tax Tribunal within 30 days. But property owners are often satisfied with local assessment action, and let the time allowed for board-of-review protest (first Monday in March to the first Monday in April) go by. Often, however, county commissioners or the State Board of Equalization change assessment valuation by establishing equalization factors in order to have property taxes at the same rate throughout a district. Since county commissioners finish their equalization by the first Monday in May, and the Board of Equalization completes its work by the fourth Monday in May, any chance to appeal assessments to the Tribunal has long since passed. The property owner must therefore wait until receiving a tax bill before protesting to the Tribunal, either in July in places levying summer taxes, or in December.”

Therefore, it is evident that the first sentence of subsection (3) was intended to give property owners approximately 30 days in which to challenge their assessments after final equalization. All other matters, including special assessments, continue to be governed by the 30-day limitation.

Additional support for this conclusion can be found in § 31(a) of the act, MCL 205.731(a); MSA 7.650(31)(a), which provides:

"The tribunal’s éxclusive and original jurisdiction shall be:
"(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.”

The separate references to "assessment” and "special assessments” are further indication that a challenge to a special assessment is not an "assessment dispute” within the meaning of § 35(3).

Finally, the courts of this state have repeatedly recognized that the interpretation of a statute by the agency charged with administering it is entitled to respectful consideration. See Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977). That deference has been accorded to the Tax Tribunal. Knob Hill Trust v Meridian Twp, 77 Mich App 704, 708; 259 NW2d 198 (1977).

As an alternative basis for reinstatement of their petition, plaintiffs argue that it would be unfair to apply the decision in Edros, supra, to them because that case changed the law and required them to adhere to a 30-day deadline after the deadline had already passed. The faulty premise in this argument is that Edros changed the law. It did not. This Court’s opinion in Edros merely restated what is evident from the plain language of the Tax Tribunal Act, namely, that the tribunal’s jurisdiction must be invoked within the 30 days set forth in subsection (3). Plaintiffs failed to meet this requirement. We distinguish the anomalous decision of this Court in The West-land Group v City of Westland, 80 Mich App 296; 263 NW2d 45 (1977), upon which plaintiffs urge us to rely, by noting that nowhere in that appeal was the jurisdictional question ever raised.

Plaintiffs’ final assertion that a provision in the City of Fenton Code of Ordinances misled them into filing this action initially in circuit court is equally unpersuasive. It is fundamental that any such ordinance provision could not prevail over the provisions of MCL 205.735(3); MSA 7.650(35)(3). See Walsh v River Rouge, 385 Mich 623, 640; 189 NW2d 318 (1971), and 17 Michigan Law & Practice, Municipal Corporations, § 27, pp 38-39.

Accordingly, the decisions of the court below and the Tax Tribunal are affirmed. No costs.

       Section 35 reads as follows:
      "Sec. 35. (1) A proceeding before the tribunal shall be original and independent and shall be considered de novo. In the case of an assessment dispute as to the valuation of the property or where an exemption is claimed, the assessment must be protested before the board of review before the tribunal may acquire jurisdiction of the dispute, except that for the 1976 tax year only in a county whose state equalized valuation set by the state tax commission exceeds its assessed valuation and its equalized valuation set by the county board of commissioners for that year by at least 10%, a taxpayer may appeal directly to the tax tribunal.
      "(2) The jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which he seeks to review or within 30 days after the receipt of a bill for a tax he seeks to contest. The unit of government shall be named as respondent. Service of the petition on the respondent shall be by certified mail.
      "(3) Beginning January 1, 1977, the jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved. In all other matters the jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which the petitioner seeks to review. An appeal of a contested tax bill shall be made within 60 days after mailing by the assessment district treasurer and the appeal shall be limited solely to correcting arithmetic errors or mistakes and shall not be a basis of appeal as to disputes of valuation of the property, its exempt status, or the equalized value resulting from equalization thereof by the county board of commissioners or the state tax commission. Service of the petition on the respondent shall be by certified mail to the assessor of that governmental unit. Except for petitions filed under chapter 6, a copy of the petition shall also be sent to the secretary of the school board in the local school district in which the property is located and any county which may be affected.
      "(4) The petition or answer may be amended at any time by leave of the tribunal and in compliance with its rules. If a tax was paid while the determination of the right thereto is pending before the tribunal, the taxpayer may amend his petition to seek refund of the tax.”


text:
    HOME INSURANCE COMPANY v ROSQUIN
    Docket Nos. 78-4283, 78-4302.
    Submitted May 15, 1979, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    A place of business insured by the Home Insurance Company was damaged as a result of a truck-car collision. The truck was driven by Frank E. Rosquin who was insured by Dairyland Insurance Company. The truck tractor was owned by James C. Bennett and was not insured. The truck trailer was owned by Elek Papp, Jr., and insured by Auto-Owners Insurance Company. The car was driven by Sally A. Geer and insured by State Farm Mutual Automobile Insurance Company. Home Insurance paid for the damages and, after unsuccessfully attempting subrogation against Auto-Owners, brought an action against Rosquin, Papp and Geer. Some months later, an amended complaint was filed to add as defendants Bennett, Dairyland, State Farm, and Auto-Owners. State Farm and Auto-Owners alleged that the action was barred as to them by the limitation of action provision of the no-fault automobile insurance act. The Oakland Circuit Court, Robert J. Chrzanowski, J., rejected that allegation and granted summary judgment in favor of Home Insurance against State Farm and Auto-Owners. State Farm and Auto-Owners each appeal, and the appeals are consolidated for hearing and decision. Held:

    The statute of limitations contained in the no-fault act bars the action against State Farm and Auto-Owners.
    Reversed.
    Insurance — Automobiles — No-Fault — Limitations of Actions — Statutes.
    An action for recovery of property protection insurance benefits under the no-fault act is subject to a one-year statute of limitations (MCL 500.3145[2]; MSA 24,13145[2]).

      Russ, Soloy & Kochansky, for plaintiff.
    Reference for Points in Headnote
    44 Am Jur 2d, Insurance §§ 1903, 1906.

      Romain, Donofrio & Kuck, P.C., for defendant State Farm Mutual Automobile Insurance Company.
    Nunneley, Nunneley, Hirt & Rinehart, P.C., for defendant Auto-Owners Insurance Company.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   Per Curiam.

Defendants Auto-Owners Insurance Company and State Farm Mutual Automobile Insurance Company appeal by right from a September 26, 1978, summary judgment issued against them by the Macomb County Circuit Court. Both companies claim that the statute of limitations barred this action against them. We agree and reverse.

On December 13, 1974, a truck-car collision resulted in damage to a fur shop insured by plaintiff Home Insurance Company. The car was driven by Ms. Geer who had a no-fault insurance policy with State Farm. The truck was driven by Mr. Rosquin who had a no-fault insurance policy with Dairyland. The truck tractor was owned by Mr. Bennett but was not insured. The truck trailer was owned by Mr. Papp who had a no-fault insurance policy with Auto-Owners.

On April 4, 1975, after plaintiff had paid the fur company for its damages, plaintiff sent a notice of lien and subrogation interest to Auto-Owners. On August 8, 1975, Auto-Owners advised plaintiff that it did not intend to make any voluntary payments on the claim.

Plaintiff’s first complaint was filed against Mr. Rosquin, Mr. Papp and Ms. Geer on December 9, 1975. However, on May 18, 1976, plaintiff filed an amended complaint to add Mr. Bennett, Dairyland, State Farm and Auto-Owners as defendants.

Numerous motions for accelerated or summary judgment were filed by the parties. Defendants State Farm and Auto-Owners raised the no-fault act’s one-year statute of limitations as a bar to plaintiff’s action against them. The circuit court specifically rejected State Farm’s argument, finding that plaintiff’s suit against Ms. Geer "was in fact a suit against her insurer State Farm Mutual Automobile Insurance Company under the authority of Kirkwood v DuRussell, Court of Appeals Docket 30893 (11-25-77)”. Plaintiff’s motion for summary judgment against defendants Auto-Owners and State Farm was granted on September 26, 1978, and those defendants now appeal.

Under the no-fault act’s property protection insurance provisions, and subject to certain exclusions not applicable here, MCL 500.3123; MSA 24.13123, a no-fault insurer is liable to pay benefits for accidental damage to tangible property when such damage arises out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. MCL 500.3121; MSA 24.13121. A person suffering accidental property damage must claim property protection insurance benefits from the insurers of owners or registrants of vehicles involved in the accident or, if there are no such insurers, from the insurers of operators of vehicles involved in the accident. MCL 500.3125; MSA 24.13125. As stated in Shavers v Attorney General, 402 Mich 554, 631; 267 NW2d 72 (1978):_

"Under the property protection scheme, owners of tangible property and properly parked motor vehicles collect from the insurer of the motor vehicle which indicted the damage. Owners of moving or improperly parked motor vehicles may collect compensation from their own insurers, if they have chosen to self-insure.
"The different treatment of moving vehicles and tangible property and properly parked vehicles is related to the second conceptual difficulty relating to the use of fault in a no-fault act. Common sense would indicate, and actuarial studies have shown, that in accidents involving motor vehicles and tangible property, the motor vehicle is usually at fault. Consequently, the act makes the motorist strictly liable for the damage he does to tangible property and requires him to purchase insurance for such damage.” (Emphasis supplied and footnote omitted.)

In pursuing property protection insurance benefits from the appropriate insurer, the injured party is restricted by the one-year statute of limitations in MCL 500.3145(2); MSA 24.13145(2):

"An action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident.”

The accident in the instant case occurred on December 13, 1974, and plaintiffs complaint was not amended to include State Farm and Auto-Owners, the appropriate insurers under MCL 500.3125, until May 18, 1976, or 17 months after the accident. This is so even though plaintiff knew, at least as early as April 4, 1975, that Auto-Owners insured Mr. Papp. Even if we were to charge defendant Auto-Owners with the four months it used in 1975 to evaluate plaintiffs notice of lien and subrogation interest, see The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), and Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), plaintiff still did not commence the action against Auto-Owners within one year from the date of the accident. Therefore, plaintiffs action for recovery of property protection insurance benefits from Auto-Owners and State Farm is barred by the one-year statute of limitations. See Davis v Farmers Ins Group, 86 Mich App 45, 48-49; 272 NW2d 334 (1978), and Forest v Parmalee (On Rehearing), 60 Mich App 401, 406; 231 NW2d 378 (1975), aff'd 402 Mich 348; 262 NW2d 653 (1978).

This result may appear harsh, but the statute is plain. We also note that plaintiff is an insurance company itself and is presumably well aware of the much-publicized insurance law of this state. Under the circumstances, plaintiffs arguments should be presented to the Legislature and not to the courts.

Reversed.

       These facts were alleged in plaintiffs brief. Neither defendant disputed the truthfulness of the claims.

         Kirkwood, supra, is an unpublished per curiam opinion of this Court. As such, it has no precedential value. In any event, Kirkwood is specifically limited to its peculiar facts.

       If plaintiff did not know who the defendants’ insurers were or could not have discovered, after reasonable effort, who the insurers were, we might have been persuaded to adopt a different result.


text:
    ORR v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 77-3730.
    Submitted October 10, 1978, at Detroit.
    Decided April 18, 1979.
    Leave to appeal denied, 407 Mich 865.
    Plaintiff, Clinton C. Orr, who was employed by Wayne County General Hospital, accrued, as a benefit of his employment, sick leave time at the rate of eight hours per month. This leave time accrued without limit, and, if unused at retirement, death or separation from employment, became an economic benefit to him. Defendant, Detroit Automobile Inter-Insurance Exchange (DAIIE), offered plaintiff a reduced rate on his auto insurance in exchange for coordinated work-loss benefits and issued a policy containing a coordinated work-loss provision. Plaintiff was injured in an auto accident and sued defendant in Wayne Circuit Court to recover his sick leave benefits expended before defendant commenced paying work-loss benefits. Summary judgment for plaintiff, Charles S. Farmer, J., who held that the policy provision was void as against public policy when applied to plaintiff’s sick leave benefits. Defendant appeals. Held:

    An employee’s sick-leave benefits whereby he accrues time for which he will be paid in the event he is unable to work due to illness and which, if unused at retirement or separation from employment, result in an economic benefit to him are not eligible for coordination of work-loss benefits under the no-fault act and any policy provision so providing is void as against public policy as to such benefits.
    Affirmed.
    Insurance — Automobiles — No-Fault Insurance — Coordinated Work-Loss Benefits — Sick-Leave Benefits.
    An employee’s sick-leave benefits whereby he accrues time for which he will be paid in the event he is unable to work due to illness and which, if unused at retirement or separation from employment, result in an economic benefit to him are not eligible for coordination of work-loss benefits under the no-fault act and any policy provision so providing is void as against public policy as to such benefits (MCL 500.3109a; MSA 24.13109[1]).

      Reference for Points in Headnote
    Am Jur 2d New Topic Service, No Fault Insurance §§ 22, 29.

      Donnelly W. Hadden, for plaintiff.

      Selby, Dickinson, Pike, Mourad & Brandt (by Charles T. McCutcheon, Jr.), for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and N. J. Kaufman, JJ.
   Per Curiam.

Defendant appeals from the trial judge’s entry of summary judgment in favor of plaintiff. The trial judge held that the sick leave plan at plaintiff’s place of employment was not eligible for coordination of work-loss benefits under the no-fault act. MCL 500.3109a; MSA 24.13109(1).

Plaintiff was an employee of Wayne County General Hospital and this employment was regulated by the rules of the Wayne County Civil Service Commission. Under these rules, plaintiff was granted sick leave which accrued at a rate of eight hours per month. This sick leave could be accrued without limit and, if unused at retirement, death, or separation from employment, would result in a financial payment to the plaintiff. At the time of the accident in question, plaintiff had accrued 1,304 hours of sick leave (163 days).

Pursuant to MCL 500.3109a; MSA 24.13109(1), defendant offered plaintiff a reduced rate on his automobile insurance in return for coordinated work-loss benefits. Plaintiff’s insurance policy with defendant contained the following provision:

"Coordinated Work Loss Benefits”
"In consideration of the reduced premium for Personal Protection Insurance, and the presumption that loss of income benefits are provided by another source, and provided the Insurance Declaration Certificate or Policy Change Endorsement indicates Coordinated Work Loss Benefits, the company agrees with the named insured that, under the Work Loss Benefits Coverage, sums paid or payable to the named insured or any relative domiciled in the same household, shall be reduced by any amount paid or payable under any valid and collectable individual, blanket or group, accident or disability insurance, salary or wage continuation plan, employer paid sick pay program, workmen’s compensation law, or disability law of a similar nature, or any other State or Federal law.”

Defendant contended that plaintiffs sick leave program was to be coordinated by virtue of this clause and required plaintiff to use all 163 days of accrued sick leave prior to paying personal protection insurance benefits. The trial court concluded that while plaintiffs sick leave program was within the contractual language of the policy, it was not the type of insurance benefits contemplated by MCL 500.3109a; MSA 24.13109(1), and held that the exclusive clause was invalid as applied to plaintiffs sick leave time and against public policy.

The sick leave provisions of the Wayne County Civil Service Commission employment rules are clearly encompassed in the contractual language coordinating work-loss benefits in the policy of insurance, whether considered to be an employer-paid sick pay program or a salary or wage continuation plan. However, as the trial court points out, plaintiffs accrued sick leave days have both an economic value to him as well as providing his only protection against further wage loss due to illness. The trial court held that plaintiffs sick leave was not the type of insurance benefit contemplated by MCL 500.3109a; MSA 24.13109(1), and we agree.

MCL 500.3109a; MSA 24.13109(1) provides that:

"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by the section shall be subject to prior approval by the commissioner, and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.”

This statutory provision does not permit any and all exclusions, but rather limits the permitted exclusions to health and accident coverage on the insured. The use of the word "coverage” is particularly enlightening, since in the field of insurance, coverage is not an ordinary word but one of very precise meaning. Freimuth v Glens Falls Ins Co., 50 Wash 2d 621, 625; 314 P2d 468 (1957). The word "coverage”, when used in conjunction with insurance, means "protection by insurance policy”. Webster’s Third New International Dictionary, pp 524-525 (1961). The noninadvertent use of the word "coverage” in this section of the no-fault act, when the rest of the no-fault act refers to benefits, clearly indicates that the Legislature intended § 3109a, deductibles and exclusions, to be limited to health and accident insurance coverage upon the insured.

This interpretation of § 3109a is amply borne out by the practical aspects of this case. The benefit possessed by a plaintiff was his entitlement to a sick bank. During the period of time which his no-fault policy was in effect, his benefit from this sick bank was free to fluctuate depending on his usage of these days. Any rate reduction granted based upon this fluctuating benefit could not be actuarially sound. However, a rate based upon another policy of insurance with fixed limits of liability would enable the insurance company to offer appropriately reduced premium rates.

A final consideration is the nature of plaintiffs sick leave benefit. This benefit is provided to enable plaintiff to receive wages while incapacitated for health reasons. To require the plaintiff to utilize these days rather than the coverage under his no-fault policy would destroy his sickness protection built up over many years. We do not believe that the Legislature intended to create such a trap for the unwary, and to permit them to sell important financial protection for a minimal no-fault insurance savings. Accordingly, we agree with the trial court that the exclusionary language in plaintiffs no-fault policy is invalid as applied to plaintiffs sick leave.

Affirmed. Costs to appellee.


author: M. F. Cavanagh, P.J.

text:
    HEINRICH v CITY OF DETROIT
    Docket No. 77-2906.
    Submitted October 11, 1978, at Detroit.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Edgar W. Heinrich owned a building in the City of Detroit. In 1962, the city approved a massive urban renewal plan, entitled University City Rehabilitation Project. Heinrich’s property was included within the project. His commercial tenants attended a meeting in 1962 and were told to expect the city to be knocking on their doors by 1965. One tenant, Esterling Tri-Craft Printing, called the city in 1964 and received assurances that the condemnation would occur at least by 1967, the year their lease with Heinrich ended. Esterling was acquired by another printing company in 1965 and its operations were moved. However, Heinrich’s building was used by the printing company for storage and lesser operations until the expiration of its lease. Also in 1965, the city informed Heinrich that his building would not be acquired until 1968 or 1969. The city’s letter distinctly conveyed the impression that plaintiffs building would be acquired, but that Federal funding requirements prevented early acquisition. After Heinrich’s tenants moved out in 1967, he listed the building for rental but did not acquire new tenants. By 1969, all acquisition efforts relating to the project ended due to a lack of funding. In 1967, the Detroit riots caused extensive damage near the Heinrich building. In 1968, with the building still vacant, Heinrich was unable to pay his property taxes. The State of Michigan acquired title in a tax sale and deeded the property to the city in 1973. The property was subsequently incorporated into the expansion of a local high school. Heinrich brought an action in inverse condemnation against the City of Detroit, County of Wayne, the Board of Education and Albert Lee, Auditor General of the State of Michigan, alleging that various individual and joint acts by the defendants in the management of the urban renewal project affected his property so adversely as to amount to a de facto taking without just compensation. Wayne Circuit Court, Thomas J. Foley, J., found that there was no evidence that Esterling would have remained after the expiration of its lease, nor that the impetus to sell out its holdings came from the threatened condemnation; that there was no evidence that the city and the Board of Education acted in concert to deprive plaintiff of his property, although the board was at all times interested in acquiring plaintiffs property, it took no steps to do so until after the city failed to proceed with acquisition under the project; and, that while the threatened condemnation may have hindered plaintiffs ability to rent the building, he failed to establish the city’s actions — as opposed to the general area blight and the destruction caused by the 1967 riots — were the cause, or even the greater cause of this inability. The court concluded that no de facto taking occurred and found no cause of action in favor of codefendants City of Detroit and the Detroit Board of Education. Plaintiff appeals. Held:

      References for Points in Headnotes

       26 Am Jur 2d, Eminent Domain § 157 et seq.

       27 Am Jur 2d, Eminent Domain § 353.

       27 Am Jur 2d, Eminent Domain § 275.

      The trial court did not err in finding that the city’s actions in carrying out its urban renewal project were not so egregious as to constitute an abuse of its eminent domain power. The specific contacts with the plaintiff and his tenants and the level of publicity attending the announced condemnation fall short of conduct found to be an abuse of eminent domain power in similar cases. While delay created a cloud over plaintiffs property, it cannot be said that the city deliberately stalled completion of the project to benefit from reduced property values. Plaintiff failed to prove that the city’s actions, even assuming abuse occurred, substantially contributed to his loss of revenue. Trial evidence fails to support the conclusion that plaintiffs failure to re-rent his property was substantially caused by prospective tenants’ fear of future condemnation. No causal connection was established between Esterling’s decision to sell and the planned condemnation of plaintiffs building. There was, however, substantial evidence that the blighted condition of the neighborhood and the 1967 riots contributed to the loss of established businesses and vacant property. The trial court’s findings concerning the Detroit Board of Education’s role in these events were not so clearly erroneous as to require reversal.
    Affirmed.
    1. Eminent Domain — Private Property — Taking for Public Use — Governmental Action — Conversion — Injury to Property — Exclusion of Owner.
    It is well settled in Michigan law that a taking of private property for public use may occur without absolute conversion of the property, including cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto.
    2. Eminent Domain — Private Property — Taking for Public Use — Loss of Revenue — Inability to Rent — Urban Renewal — City Actions.
    A loss of revenue and inability to rent property may constitute a taking of private property for public use where the owner can establish a causal connection between his loss and a city’s actions in carrying out an urban renewal program.
    3. Eminent Domain — Private Property — Taking for Public Use — Publicity ■— Reduction in Value — Evidence — Abuse of Discretion.
    The mere threat of condemnation and its attendant publicity, without more, is insufficient to constitute a taking of private property for public use without just compensation; to determine whether the governmental entity abused its exercise of legitimate eminent domain power to a property owner’s detriment, a court should examine the totality of the acts alleged to have constituted the taking.
    4. Eminent Domain — Private Property — Taking for Public Use — Governmental Actions — Reduction in Value — Urban Renewal — Burden of Proof.
    A plaintiff may recover damages for inverse condemnation in a case where the acts of a city are alleged to have resulted in lost rentals and diminution of property value due to a threatened condemnation of his property for urban renewal if he can show that the actions of the city substantially contributed to and accelerated the decline in value; even where abuses by a city can be established, the plaintiff has the burden of proving a causal connection between the city’s actions and his alleged loss; a plaintiff may satisfy this burden by proving the city’s actions were a substantial cause of the decline of his property’s value and that the city abused its legitimate powers in affirmative actions directly aimed at his property.

      Travis, Warren, Nayer & Burgoyne, P.C. (by George E. Ward and John M. Roche), for plaintiff.

      Boris K. Yakima, for defendant City of Detroit.

      Kenneth N. Hylton, for defendant Detroit Board of Education.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr. and N. J. Kaufman, JJ.
   M. F. Cavanagh, P.J.

Plaintiff, Edgar William Heinrich, appeals as of right from the trial court’s finding of no cause of action in favor of codefendants City of Detroit and Detroit Board of Education.

Plaintiff brought an action in inverse condemnation against defendants, alleging that various individual and joint acts by the defendants in the management of an urban renewal project affected his property so adversely as to amount to a de facto taking without just compensation.

Plaintiff owned a building on Canfield in the City of Detroit. In late 1962, the city approved a massive urban renewal plan, entitled, "University City Rehabilitation Project”, to condemn and rehabilitate 304 acres in the area near Wayne State University. This plan was divided into five smaller projects; plaintiff’s building was included in the third project, slated for educational/recreational use.

The University City plan contained two planning and survey phases prior to acquisition of property. It is apparent from the record that the financial involvement of the Federal government considerably protracted completion of all phases. The Federal government also obligated the city to publicize its urban renewal plans by means of public meetings. One such meeting, respecting Project 3, was held on July 21, 1962. Plaintiff’s commercial tenants attended that meeting and were told to "expect the City knocking on their doors as early as 1965”. One tenant testified that he had the impression from the meeting that the property would eventually be taken.

As of the date of that meeting, plaintiffs tenant, Esterling Tri-Craft Printing, had five years remaining on its lease. In late 1964, the president of that company called the city and received assurances that the condemnation would occur at least by 1967, the year the company’s lease ended. However, in 1965, Esterling was acquired by another printing company who moved Esterling’s operations, as well as those of five other similarly acquired companies, to its main plant. Until the expiration of its lease, Esterling used the plaintiffs building for storage and lesser operations. The trial court found that there was no evidence that Esterling would have remained after the expiration of its lease, nor that the impetus to sell out its holdings came from the threatened condemnation.

Also in 1965, the city informed the plaintiff, in response to his letter expressing his concern at the deterioration and vandalism of his property, that his building would not be acquired until 1968 or 1969. The city’s letter distinctly conveyed the impression that plaintiffs building would be acquired, but that Federal funding requirements prevented early acquisition. After plaintiffs tenants moved out in 1967, plaintiff listed the building for rental, but did not acquire new tenants.

By 1969, all acquisition efforts relating to Projects 3, 4 and 5 ended due to lack of funding. In 1967, the Detroit riots caused extensive damage in the neighborhood near plaintiffs property, although his building and the block in which it stood were not harmed. In 1968, with the building still vacant, plaintiff was unable to pay his property taxes. The State of Michigan acquired title in a tax sale, and deeded the property to the city in 1973. Plaintiffs property subsequently was incorporated into the expansion of a local high school.

The trial court found no evidence that the city and the board acted in concert to deprive plaintiff of his property. The trial court found that although the defendant Board of Education was at all times interested in acquiring this property, it took no active steps to do so until after the city failed to proceed with acquisition under Project 3. It also held that while the threatened condemnation may have hindered plaintiff’s ability to rent the building, he had failed to establish that the city’s actions — as opposed to the general area blight and the destruction caused by the 1967 riots —were the or even the greater cause of this inability. It concluded, therefore, that no de facto taking occurred.

In addition to challenging as clearly erroneous the trial court’s finding of fact that no taking occurred, the plaintiff asserts that the trial court erred in defining both the proper standard of causation to be applied in inverse condemnation cases and the nature of the plaintiffs burden of proof in such actions.

It is well settled in Michigan law that a "taking” of private property for public use may occur without absolute conversion of the property in question. It includes as well

"[c]ases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto. In either of these cases it is a taking within the meaning of the provision of the Constitution.”

Pearsall v Board of Supervisors, 74 Mich 558, 561; 42 NW 77 (1889), In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965), Foster v Detroit, 254 F Supp 655 (ED, Mich 1966), aff'd 405 F2d 138 (CA 6, 1968). The plaintiffs alleged loss of revenue and inability to rent his property would fall within this definition, assuming that he can establish the causal connection between his loss and the city’s actions in carrying out its urban renewal programs.

Related to this issue of causation it is further apparent that not all government actions may amount to a taking for public use. In those cases finding a taking, the courts examined both the intensity and form of the accompanying publicity and the deliberateness of specific actions directed at a particular plaintiffs property by the city to reduce its value. Madison Realty Company v Detroit, 315 F Supp 367, 371 (ED Mich, 1970). See also, Richmond Elks Hall Ass’n v Richmond Redevelopment Agency, 561 F2d 1327 (CA 9, 1977). The mere threat of condemnation and its attendant publicity, without more, is insufficient. Therefore, before a court may conclude that a taking occurred, it must examine the totality of the acts alleged to determine whether the governmental entity abused its exercise of legitimate eminent domain power to plaintiffs detriment. Sayre v Cleveland, 493 F2d 64, 69 (CA 6, 1974) In re Urban Renewal, Elmwood Park Project, supra, at 318.

Finally, even where abuses can be established, a causal connection must be drawn between the government’s actions and an individual’s alleged loss. In Muskegon v DeVries, 59 Mich App 415, 420; 229 NW2d 479 (1975), lv den 394 Mich 787 (1975), it was held that a plaintiff in inverse condemnation must prove that the government’s actions were the cause of the taking. The Court in that case cited no precedent for its conclusion. However, establishment of a causal link, in cases involving a city’s management of an urban renewal program, may be hindered by the presence of other factors affecting a property’s viability, such as neighborhood deterioration, urban blight and commercial obsolescence. Ironically, these factors may have provided the impetus for the urban renewal program in the first place and yet obscure even a plaintiff’s legitimate right to compensation. See Foster, supra, at 662.

In our view, the Muskegon analysis (which apparently was followed by the trial court in the instant case) takes too narrow an approach to the question of causation. We are presuaded that the better view is stated in Foster v Detroit, supra, 655, and relied on in Madison Realty Company v Detroit, supra, at 371. A plaintiff may recover in inverse condemnation where:

"[t]he actions of the defendant * * * substantially contributed to and accelerated the decline in value of plaintiffs property.” (Emphasis added.) Foster v Detroit, supra.

even where other conditions may have adversely affected property values as well.

As for the plaintiffs burden of proof in inverse condemnation actions, we would agree with the opinion in Muskegon v DeVries, supra, insofar as it holds that the plaintiff has the burden of proving causation. However, a plaintiff may satisfy this burden by proving that the government’s actions were a substantial cause of the decline of his property’s value. It also appears that the plaintiff must establish the government abused its legitimate powers in affirmative actions directly aimed at the plaintiffs property. Sayre v Cleveland, supra, at 69, Madison Realty Company v Detroit, supra, at 370-371. Holloway Citizens Committee of Lapeer & Genesee Counties, Inc v Genesee County, 38 Mich App 317, 320; 196 NW2d 484 (1972). After examining the records and the trial court’s findings of fact and conclusions of law, we would agree with plaintiff that the trial court appeared to adopt an overly narrow test of causation. Nevertheless, even using the "substantial cause” test outlined above, we decline to reverse.

We are persuaded that the trial court did not clearly err in finding that the city’s actions in carrying out its urban renewal project were not so egregious as to constitute an abuse of its eminent domain power. The specific contacts with the plaintiff and his tenants and the level of publicity attending the announced condemnation fall short of conduct found to be an abuse of the eminent, domain power in similar cases. While the delay in carrying out the condemnation certainly created a cloud over the plaintiff’s property, we cannot say that the city deliberately stalled completion of the project to benefit from reduced property values. Compare Foster v Detroit, supra, at 662.

Nor has the plaintiff proved that the city’s actions, even assuming abuses occurred, substantially contributed to his loss of revenue. Although the plaintiff failed to re-rent his property, the evidence presented at trial does not support the conclusion that this failure was substantially caused by prospective tenants’ fear of future condemnation. In the same manner, no causal connection was established between the tenant printing company’s decision to sell their business and the planned condemnation of plaintiff’s building. There was, on the other hand, substantial evidence that the blighted condition of the neighborhood induced the introduction of the renewal program in the first place. Evidence also showed that plaintiff’s property was in or immediately adjacent to one of the most severely damaged business areas during the 1967 riots, and that in the aftermath of these civil disturbances, entire neighborhoods in the City of Detroit suffered generally from loss of established businesses and vacant property.

We also find, upon review of the proofs presented, that the trial court’s findings concerning the Detroit Board of Education’s role in these events, were not so clearly erroneous as to require reversal.

We have reviewed the briefs and the record as to the remaining allegations and find no error occurred.

Affirmed. No costs, a public question being involved.

D. E. Holbrook, Jr., J., concurs in the result only.

       Plaintiff directs our attention to several cases from other jurisdictions to support his contention that the destruction of a property’s income capacity, as well as its decline in value, may constitute a taking. Recourse to other jurisdictions, in our opinion, is unnecessary. The Michigan precedent cited in the body of this opinion includes such destruction within those interferences with an owner’s enjoyment of his property that constitute a taking.

       Plaintiff has cited a number of cases from other jurisdictions that found a taking on facts similar to those in the case at bar. At first glance, these cases appear to support the proposition that if publicity and the threat of condemnation cause a property owner to lose tenants and income to such an extent that the owner risks losing that property, he is entitled to compensation. Conroy-Prugh Glass Company v Commonwealth Department of Transportation, 456 Pa 384, 392-393; 321 A2d 598, 602 (1974), Reingold v Urban Redevelopment Authority of Pittsburgh, 20 Pa Commw 266; 341 A2d 915 (1975), Washington Market Enterprises, Inc v Trenton, 68 NJ 107; 343 A2d 408 (1975). However, a careful reading of the Reingold and the Washington Market opinions reveals the court’s reliance on specific acts by the condemning authority directed at the plaintiffs particular property, in addition to publicity, in concluding a taking occurred. The acts noted included condemnation of neighboring properties, discouragement of long-term leasing, and a continuing pattern of condemnation in the area. See Reingold v Urban Redevelopment Authority of Pittsburgh, supra, at 268, fn 2, Washington Market Enterprises, Inc v Trenton, supra, at 111-112, 118-119. In this emphasis, the holdings of these cases are not inapposite to the Michigan and 6th Circuit Federal holdings cited in the body of the opinion. Although the strongest statements concerning the effect of publicity on the existence of a taking appear in the Conroy-Prugh opinion, we note, in declining to follow its reasoning, that its holding is extremely fact-specific and turns on the indisputable inevitability of condemnation of the plaintiffs property.

       It is in fact unclear from the opinion exactly what test of causation the trial court employed in concluding no taking occurred. The court found, somewhat ambiguously, that the plaintiff failed to establish that the city’s announced future condemnation "was the cause or even the greater cause of plaintiffs loss of revenue from his building”. (Emphasis in the original.) We will assume, arguendo, that the trial court relied primarily on the former test.


author: M. J. Kelly, J. Beasley, J.

text:
    PEOPLE v THOMAS
    Docket No. 77-3717.
    Submitted March 20, 1979, at Detroit.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Defendant, David W. Thomas, was charged, along with Robert K. Dyche, with larceny in a building. Thomas was the manager of St. Thomas Rug Cleaning of Kalamazoo, which was hired by Meijer Thrifty Acres to clean the carpet in one of its party stores in Wyoming, Kent County, Michigan. Both Thomas and Dyche were locked in the store after closing, along with their equipment, four large buckets and a large carpet cleaning machine. Before allowing the men out, the acting night manager came to the store and inspected the equipment for store property. At first he found nothing, but, as he watched the men load the machine into a van, he noticed a partially open panel in the bottom of the machine and, on closer examination, discovered four bottles of liquor tucked in the motor compartment of the machine. Both men denied knowledge of the presence of the bottles at the scene and neither testified at trial. Defendant was convicted in a bench trial in Kent Circuit Court, John T. Letts, J. Defendant appeals. Held:

    In order to infer from the fact of possession of stolen goods that the possessor was a thief the possession must be recent, exclusive and involve a conscious assertion of property. Here there was inadequate evidence that the possession was exclusive.
    Reversed.
    Beasley, J., dissented. He would hold that there was some evidence sufficient to find that defendant’s theory that Dyche acted alone had been negated.
    References for Points in Headnotes

       50 Am Jur 2d, Larceny §§ 160-163.
    What amounts to "exclusive” possession of stolen goods to support inference of burglary or other felonious taking. 51 ALR3d.

       76 Am Jur 2d, Trial §§ 1257, 1264, 1267, 1268.

       50 Am Jur 2d, Larceny §§ 15-17, 19, 22, 23, 49.

      Opinion of the Court
    1. Criminal Law — Inferences — Possession.
    Possession of stolen property, to be grounds for the inference that the possessor is a thief, must be exclusive, recent and involve a conscious assertion of property.
    Dissent by Beasley, J.
    2. Criminal Law — Findings of Fact — Bench Trial — Appeal and Error.

      The trial judge in a bench trial is the trier of fact, and he may give such weight to the testimony as, in his opinion, it is entitled; the Court of Appeals will not set aside such ñndings of fact unless it concludes they are clearly erroneous.

    3. Criminal Law — Larceny in a Building.

      The elements of larceny in a building are: (1) an actual or constructive taking of goods or property; (2) a carrying away or asportation; (3) the carrying away must be with felonious intent; (4) the subject matter must be the goods or personal property of another; (5) the taking must be without the consent and against the will of the owner; and (6) the taking must be done within the confínes of a building.

      Frank J. Kelly, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Donald A. Johnston, Assistant Prosecuting Attorney, for the people.

      Robert L. Redmond, for defendant on appeal.
    Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   M. J. Kelly, J.

The facts are accurately set forth in Judge Beasley’s dissenting opinion. However, after careful consideration of those facts in light of the relevant legal principles, we are convinced that the people did not produce evidence sufficient to permit a finder of fact to determine that defendant Thomas, acting alone or in concert with Dyche, was the perpetrator of that larceny.

We conclude that there is nothing in the transcript which compels, or even inferentially permits, the conclusion that defendant Thomas knew that the liquor bottles were hidden with the carpet cleaning machine. Because the bottles were out of sight, the defendant did not necessarily know they were hidden inside the machine. If Dyche had put them inside the cleaner, it strains credulity to conclude that defendant would have had to see him because a person standing inside this Meijers Thrifty Acres store could "clearly see all of the store”. The liquor counter lined a 60-foot wall and, even if defendant’s head was mounted on a swivel, it is highly improbable that Dyche was never out of his sight during the several hours it took to clean the carpeting, even though neither left the premises. Although there was testimony concerning the height of the shelves on the premises, there was no testimony concerning the reach of the hoses, the manipulation of the nozzles or the frequency of need for emptying the buckets and refilling the machine which would support the conclusion that the workers were always in sight of each other. We conclude from this record that it was entirely possible for the coworker, Dyche, to have committed the larceny without Thomas’s knowledge or assistance.

In making the case for affirmance, the people contend that Thomas’s possession of the carpet cleaner, and of the recently stolen property contained within, permits the inference that he was the thief. People v Fry, 17 Mich App 229; 169 NW2d 168 (1969). We disagree. In order for possession to be grounds for an inference, it must be exclusive, recent and involve a conscious assertion of property by defendant. 1 Wharton’s Criminal Evidence (13th ed), § 139, pp 234-240. Although there was testimony that Thomas customarily operated the machine and that Dyche only assisted him by moving hoses and dumping water, we think this evidence insufficient to establish the "exclusive” element of possession; absent this predicate, we cannot make the inferential leap from possession of stolen property to perpetration of larceny.

We reverse and order the defendant discharged for the failure of the people to produce evidence from which a trier of fact could find defendant guilty beyond a reasonable doubt of the crime of larceny in a building.

D. C. Riley, P.J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

Defendants, David W. Thomas and Robert K. Dyche, were charged with larceny in a building contrary to MCL 750.360; MSA 28.592 arising out of the alleged theft of four bottles of liquor. Defendant Dyche did not appear for trial.

Tried alone, defendant Thomas was convicted in a bench trial of larceny in a building as charged. He was sentenced to two years probation with the last 30 days to be spent in the county jail, a fine of $150 and costs of $200. He appeals as of right.

Defendant Thomas, who is described as the manager of St. Thomas Rug Cleaning of Kalamazoo, was hired by Meijer Thrifty Acres, a large department, grocery and variety chain store business, to clean carpets in one of their party stores in Wyoming in Kent County. Both defendant Thomas and defendant Dyche, who assisted him, were locked in the store alone after closing to clean the carpet. They brought with them four large white buckets and a large carpet cleaning machine, about 3-1/2 feet high and 4 feet long. This machine, which was on wheels and so heavy that it took both men to lift it, had a water tank on the top and panels on the bottom, back and sides. Before allowing the men out, the acting night manager came to the store and inspected the equipment for store property. At first he found nothing, but as he watched them load their equipment into a van, he noticed that the bottom panel of the carpet cleaning machine was partially opened. Looking further, he found four bottles of liquor tucked away in the motor compartment of the machine. Both defendants denied knowledge of the presence of the bottles in the carpet cleaning machine at the scene of the crime, but neither testified at trial. As indicated, only defendant Thomas was tried in this action.

On appeal, defendant raises several issues.

First, he argues that the prosecution failed to produce sufficient evidence at trial to support his conviction.

The burden rests with the prosecution to prove all of the elements of the alleged crime beyond a reasonable doubt. In a bench trial the trial judge is the trier of fact, and he may give such weight to the testimony as, in his opinion, it is entitled. We do not set aside such findings of fact unless we conclude they are clearly erroneous.

The elements of larceny in a building are set forth in People v Wilbourne:

"* * * (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or the personal property of another, (5) the taking must be without the consent and against the will of the owner. See People v Anderson, 7 Mich App 513, 516 (1967). To these elements, the crime charged requires a 6th element: (6) the taking must be done within the confines of the building.”

This case presents evidence that: (1) four bottles of liquor belonging to Meijer were removed from shelves in the store and hidden in the motor compartment of a carpet cleaning machine owned or in the possession of defendant Thomas; (2) the four bottles of liquor were placed in the carpet cleaning machine by defendant Thomas or by defendant Dyche or by both acting in concert; (3) the carpet cleaning machine was removed from the store by defendants Thomas and Dyche working together to a van owned by or in possession of defendant Thomas; (4) Meijer did not consent to taking possession and removal of the four bottles of liquor by defendants. Thus, there would seem to be ample evidence to support a finding that the elements of larceny in a building have been established.

Defendant Thomas argues that it was possible that defendant Dyche took the bottles of liquor and hid them in the carpet cleaning machine without the consent or knowledge of defendant Thomas. He further claims that the prosecutor had the burden of proving the negative, that is, that defendant Dyche did not take and hide the bottles of liquor without the consent or knowledge of defendant Thomas because he says it is a rule in criminal cases that the prosecution must negative every possible theory of defendant’s innocence.

There was some evidence here that this would not have been possible. I refer to testimony that the height of the shelves was such that a person standing up could see anywhere in the store, that the location where Scotch liquor was kept was 40 feet from where vodka liquor was kept, that defendant Thomas ran the machine and defendant Dyche only moved hoses and dumped water from the carpet cleaning machine in the restroom, as indicating defendant Thomas would have had to know and to aid and abet if defendant Dyche took and hid the bottles of liquor in the carpet cleaning machine. This evidence was sufficient for the fact-finder to hold that defendant’s claim of "an equally plausible theory” had been negatived by the prosecutor.

But even if I were to conclude that it was possible for defendant Dyche to have committed the larceny without defendant Thomas knowing and aiding and abetting, I do not believe it would require reversal here.

In People v Edgar, this Court indicated that while it is for the factfinder to determine if the prosecution has negated every reasonable theory consistent with the defendant’s innocence of the crime charged, it is also true that, as a matter of law, some cases are simply too weak to go to the jury. In that case, we pointed out that it is not in all cases necessary to specifically disprove all innocent theories no matter how far-fetched or unreasonable they may be. Rather, the test is whether the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce. The Edgar Court then concluded that even though there was a physical possibility of defendant’s theory of innocence, the evidence made it highly unlikely and, therefore, as a matter of law, there was sufficient evidence to permit reasonable men to find guilt beyond a reasonable doubt.

Applying these principles, I hold that the evidence here, as to the relationship between defendant Thomas and defendant Dyche, that defendant Thomas managed the carpet cleaning business, that he possessed, controlled and operated the carpet cleaning machine in which the stolen bottles of liquor were found, and that defendant Thomas participated in moving the carpet cleaning machine outside the store and lifting it into a van under his control, gave rise to a permissible inference by the factfinder that defendant Thomas, in concert with defendant Dyche, took the bottles of liquor, hid them in the carpet cleaning machine and removed them from the store.

In People v Glumb in affirming a jury verdict of larceny in a building, this Court permitted a jury to infer that defendant and a woman were acting in concert where the only testimony was that the woman placed two boxes of Christmas tree lights in a shopping bag held by defendant before the parties left the store and were arrested.

People v Marshall deals with the proposition that there must be supporting evidence to justify giving an aiding and abetting charge. If the within case had been heard by a jury, I would hold there was sufficient evidence of the relationship between defendants Thomas and Dyche to give an aiding and abetting instruction. Thus, I believe the fact-finder here was entitled to apply the aiding and abetting statute if he found the evidence compatible.

Defendant cites People v Strawther. We distinguish Strawther whose facts are much weaker than here. In Strawther there was a serious issue regarding possession of the tools; the tools were seen by several witnesses outside of the garage in which they were usually kept and, thus, many unknown persons had access to them. Contrary to these facts, in the within case the stolen property was recovered while in possession of the two defendants immediately after being taken from its customary location in the building. We find Strawther not controlling here.

In People v Little, this Court affirmed a conviction in a nonjury trial, saying:

"We further find that the circumstantial evidence in this case supports defendant’s conviction. As defendant argues, in a case based on circumstantial evidence the prosecution has the burden of proving that there is no reasonable innocent theory in accord with the facts, and any inference involved must follow as an impelling certainty. * * * However, it is for the trier of fact to determine whether the prosecution has negated every reasonable theory consistent with the defendant’s innocence. * * * And it is likewise for the trier of fact to determine if the inferences are compelling. * * * In this case the trier of fact did find every reasonable theory of defendant’s innocence negated and the inferences used compelling.” (Footnote and citations omitted.)

Consistent with these decisions, I find there was sufficient evidence to support the trial court’s conclusions.

The other issues recited by defendant are offshoots of the issue I have discussed and are answered by these comments. I find they are without merit.

I would vote to affirm.

       The prosecutor’s brief says defendant Dyche "absconded” and could not be located for trial.

       The testimony does not make it clear whether defendant Thomas was an independent contractor or employed by another carpet cleaning concern. Neither is it clear as to the relationship between defendants Thomas and Dyche. It is clear that defendants brought a carpet cleaning machine with them and removed it on completion of the job.

        People v Smith, 73 Mich App 463, 474; 252 NW2d 488 (1977).

       GCR 1963, 517.1.

       44 Mich App 376, 378; 205 NW2d 250 (1973).

       75 Mich App 467; 255 NW2d 648 (1977).

        People v Fuller, 395 Mich 451; 236 NW2d 58 (1975).

       20 Mich App 272; 174 NW2d 83 (1969).

       53 Mich App 181; 218 NW2d 847 (1974).

       47 Mich App 504; 209 NW2d 737 (1973).

       87 Mich App 50, 54; 273 NW2d 583 (1978).