author: T. M. Burns, J. M. J. Kelly, J.

text:
    PEOPLE v REESE
    Docket Nos. 77-1858, 77-1859.
    Submitted February 8, 1978, at Detroit.
    Decided May 9, 1978.
    Arthur C. Reese pled guilty to two separate informations charging him with receiving or concealing stolen property with a value in excess of $100. The Recorder’s Court for the City of Detroit, Joseph A. Gillis, J., sentenced him to serve two consecutive five year terms for the offenses. Defendant appeals from each of the cases below claiming it was error to sentence him to two flat five year terms rather than indeterminate sentences. The cases were consolidated on appeal. Held:

    The Legislature has created two types of sentences, indeterminate and habitual. A defendant must be sentenced as if he were convicted for the first time, in accordance with the indeterminate sentencing statute, unless the defendant has been charged as a habitual offender. Before the habitual offender penalties may be imposed the defendant is entitled to notice and a hearing.
    Affirmed, with the sentences modified to 40 to 60 months each.
    M. J. Kelly, P. J., dissented. He would hold that: A minimum sentence which exceeds two-thirds of the maximum is an improper sentence only where the indeterminate sentence act applies, and that such act has mandatory application only to those persons convicted for the first time; therefore, the rule which requires a minimum sentence not to exceed two-thirds of the maximum sentence where an indeterminate sentence is given does not apply in the sentencing of a defendant with prior felony convictions.
    Opinion op the Court
    References for Points in Headnotes

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 19.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 20.

       21 Am Jur 2d, Criminal Law §§ 540, 581, 592, 614.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 30.

      1. Criminal Law—Sentences—Notice—Hearing—Habitual Offenders—Statutes.
    A defendant is entitled to notice and a hearing before the habitual offender penalties may be imposed against him (MCL 769.13; MSA 28.1085).
    2. Criminal Law—Sentences—Indeterminate Sentences—Habitual Offenders—Statutes.
    It is unfair to remove a defendant from the benefits of the indeterminate sentencing provision without charging him in a supplemental information as a habitual offender (MCL 769.8, 769.13; MSA 28.1080, 28.1085).
    3. Criminal Law—Sentences—Indeterminate Sentences—Habitual Offenders—First Offenders—Statutes.
    The Legislature has created two types of sentences, indeterminate and habitual; a defendant must be sentenced as if he were convicted for the first time, in accordance with the indeterminate sentencing statute, unless the defendant has been charged as a habitual offender (MCL 769.1 et seq.; MSA 28.1072 et seq.).

    Dissent by M. J. Kelly, P. J.
    4. Criminal Law—Sentences—Indeterminate Sentence Act—Application of Act—Statutes.

      The indeterminate sentence act has mandatory application only to those persons convicted for the first time; therefore, the rule which requires a minimum sentence not to exceed two-thirds of the maximum sentence where an indeterminate sentence is given does not apply in the sentencing of a defendant with prior felony convictions (MCL 769.8; MSA 28.1080).

    5. Criminal Law—Sentences—Appeal and Error—Court’s Discretion—Minimum Sentences—Prior Felony Convictions.

      A trial court did not abuse its discretion in sentencing a defendant convicted of receiving or concealing stolen property with a value in excess of $100 to a term of five years without setting a minimum term where the defendant had a prior felony conviction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Richard A, Neaton, Assistant Prosecuting Attorney, for the people.

      Charles Burke, for defendant.
    Before: M. J. Kelly, P. J., and T. M. Burns and R. M. Maher, JJ.
   T. M. Burns, J.

Defendant pled guilty in Recorder’s Court for the City of Detroit to two informations charging him with receiving or concealing stolen property with a value in excess of $100. MCL 750.535; MSA 28.803. In each case, the property was an automobile. Defendant was sentenced to serve two consecutive five year terms for these offenses which, in turn, were to be served concurrently with an 11 to 25 year sentence on an unrelated offense. In this appeal defendant claims it was error to sentence him to two flat five year terms rather than an indeterminate sentence under People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).

The question of whether the indeterminate sentencing provision, MCL 769.8; MSA 28.1080, applies to an individual with a prior conviction has of late caused much division in this Court. The Supreme Court has applied Tanner in this type of case, but without discussion. See, e.g., People v Haggitt and People v Jordan, 388 Mich 773; 200 NW2d 321 (1972).

The first hint that there might be three possible types of sentences—indeterminate (MCL 769.8; MSA 28.1080), habitual offenders (MCL 769.10, 769.11, 769.12; MSA 28.1082, 28.1083, 28.1084) and a nonstatvltory or common law nonfirst offender, nonhabitual criminal—appears to have come in People v Moore, 40 Mich App 383, 387; 198 NW2d 775 (1972). The case which has become the basis of approving this type of sentence is People v Ungurean, 51 Mich App 262; 214 NW2d 873 (1974), lv den, 395 Mich 805 (1975), where the panel approved a sentence of 14 to 15 years. However, Ungurean had been charged and was sentenced under the provisions of the habitual offender statute, something which was not done here.

As noted above, this Court has been divided on the question of whether one not charged as a habitual offender may receive a flat sentence or an indeterminate sentence which does not comply with Tanner if it appears from the presentence report or otherwise that he has been, previously convicted of crime. Compare, People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977), with People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978).

In our opinion, the better view, and the one most consistent with the statutory sentencing scheme, is that expressed by the majority in Redwine and People v Reginald Harris.

The sentencing scheme is set out in Chapter IX of the Code of Criminal Procedure, MCL 769.1 et seq.; MSA 28.1072, et seq. Section 8, the provision in question here, applies to those "convicted for the first time”. Sections 10, 11 and 12, the habitual offender provisions, apply to defendant’s second and subsequent convictions. However, before the habitual offender penalties may be imposed, a defendant is entitled to the hearing and notice protections of § 13. To remove a defendant from the benefits of the indeterminate sentencing provision without charging him in a supplemental information as a habitual offender is both unwise and unfair.

The Legislature has created but two types of sentences—indeterminate and habitual—and, unless he is charged as a habitual offender, he must be sentenced as if he were "convicted for the first time”. That this is the legislative intent can be seen from the final phrase of § 1: " * * * such sentence shall in no case or respect be greater than the penalty * * * prescribed * * * by law”. (Emphasis added.) The people point to no statute authorizing the flat five year sentence as imposed here, without complying with the habitual offender provisions, and we have found none. Defendant must be sentenced under § 8 as interpreted by the Supreme Court in People v Tanner.

The convictions are affirmed with the sentences modified to 40 to 60 months each.

R. M. Maher, J., concurred.

M. J. Kelly, J.

(dissenting). Two cases are consolidated for this appeal.

Defendant was bound over for trial after a preliminary examination was held on January 7, 1977, for the crime of receiving or concealing stolen property over $100 on January 1, 1977; specifically a Ford automobile (Docket No. 77-1859). MCL 750.535; MSA 28.803. On February 14, 1977, defendant was bound over for trial for a similar crime which occurred on February 6, 1977, involving a Pontiac automobile (Docket No. 77-1858). On April 19, 1977, defendant pled guilty to both offenses in the Recorder’s Court for the City of Detroit. The trial court accepted his plea of guilty in both cases, and sentenced defendant to serve "five years flat” on both charges. The sentences were to run consecutively. Defendant appeals asserting that under People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), the trial court erred by not setting a minimum sentence.

The Tanner "two-thirds” rule does not apply to the defendant since he has been previously convicted of a felony. For the reasons set forth in People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978), I would hold that the trial court did not abuse its discretion in sentencing defendant to a term of five years without setting a minimum term in the present case.

I would affirm.

       The second offense occurred while defendant was awaiting trial on the first. Consecutive sentences are proper under the circumstances. MCL 768.7b; MSA 28.1030(2).

         People v Biniecki, 35 Mich App 335; 192 NW2d 638 (1971), lv den 387 Mich 764 (1972), dealt with the distinct question of sentencing for escape from prison.

        People v Bullock, 48 Mich App 700; 211 NW2d 108 (1973), applied Tanner to a case of the type under discussion here, but did not discuss the convicted for the first time language of the indeterminate sentencing provision.

        People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), deals with the related problem of doubling a defendant’s sentence for a second drug conviction under MCL 335.348; MSA 18.1070(48) without a hearing or proof of the prior conviction. We express no view as to the correctness of that decision.

       MCL 769.8; MSA 28.1080.

       MCL 769.10; MSA 28.1082.

       MCL 769.11; MSA 28.1083.

       MCL 769.12; MSA 28.1084.

       MCL 769.13; MSA 28.1085.

       MCL 769.1; MSA 28.1072.


source: Caselaw Access Project

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

license: Public Domain

text:
    WATSON v AQUINAS COLLEGE
    Docket Nos. 77-2534, 77-2618.
    Submitted April 3, 1978, at Grand Rapids.
    Decided May 9, 1978.
    Leave to appeal applied for.
    Two security guards, Mark Smith and Charles Reitz, deliberately set fire to a building on the campus of Aquinas College. Reitz was employed by the college, Smith by Engineered Protection Systems, Inc., a private security guard agency. Ronald Watson, a professor at the college, lost personal property in the fire and brought an action for damages against Smith, Reitz, Aquinas College, Engineered Protection Systems, and California Union Insurance Company, Engineered Protection Systems’ insurer. Aquinas College cross-claimed against the other defendants. Watson and Aquinas both alleged that Engineered Protection and California Union were liable under the Private Security Guard Act, and moved for summary judgment. Engineered Protection and California Union moved to strike the allegation of liability under the act because defendant Smith’s act was outside the scope of his employment. The Kent Circuit Court, R. Stuart Hoffius, J., denied plaintiffs’ motion and granted the defendants’ motion to strike. Watson and Aquinas appealed, and the appeals were consolidated for hearing and decision. Held:

    The Private Security Guard Act does not change the common-law rule that there is no liability on the part of an employer for torts intentionally or recklessly committed by an employee beyond the scope of his employment.
    Affirmed.
    1. Master and Servant—Respondeat Superior—Intentional or Reckless Torts—Employee’s Torts.
    Under the doctrine of respondeat superior there is no liability on the part of an employer for torts intentionally or recklessly committed by an employee beyond the scope of his master’s business.
    References for Points in Headnotes

       53 Am Jur 2d, Master and Servant §§ 426, 438.

       73 Am Jur 2d, Statutes § 185.

      2. Statutes—Construction of Statutes—Extention by Implication —Abrogation of Common Law.
    Statutes will not be extended by implication to abrogate the established rules of common law.
    3. Master and Servant—Statutes—Private Security Guard Act— Legislative Intent—Accountability for Employee’s Acts.
    Language of a section of the Private Security Guard Act which states that an employer of security guards may be accountable for the conduct of its employees, rather than that the employer shall be accountable, indicates a legislative intent to make liability dependent upon the existence of liability at common law; therefore, the act does not impose liability upon an employer or its insurer for acts of an employee which are wilful, malicious and wrongful (MCL 338.1067[1]; MSA 18.185[17] [1]).

      Warner, Norcross & Judd (by Thomas J. McNamara and Gary P. Toth), for plaintiff Ronald Watson.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant Aquinas College.

      Hillman, Baxter & Hammond (by Joel E. Krissoff and Michael D. Wade), for defendants Engineered Protection Systems, Inc., and California Union Insurance Company.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   R. B. Burns, P. J.

The issue presented in this case in whether the Private Security Guard Act of 1968, MCL 338.1051 et seq.; MSA 18.185(1) et seq., imposes vicarious liability upon a security guard agency or its insurer for damages caused by the wrongful act of an agency security guard where the act was not within the scope of the agency’s business. We hold that it does not.

Security guards Reitz and Smith deliberately set fire to the Aquinas College Faculty Arts Building in order to provide an excuse for not making rounds. Reitz was employed by Aquinas College, and Smith was employed by Engineered Protection Systems, Inc. and assigned to duties at Aquinas College. Ronald Watson, an art department professor who lost personal property in the fire, brought this action against Reitz, Smith, Aquinas College, Engineered Protection, and Engineered Protection’s insurer, California Union Insurance Company. Aquinas College cross-claimed against the other defendants. Both Watson and Aquinas College (hereinafter plaintiffs) alleged that the Private Security Guard Act of 1968 made Engineered Protection and California Union (hereinafter defendants) vicariously liable for the action of Smith. Defendants asserted as an affirmative defense that Smith’s action was outside the scope of employment. Plaintiffs moved for summary judgment under GCR 1963, 117.2(3), and defendants moved to strike the allegation of liability under the Private Security Guard Act, GCR 1963, 115.2. The trial court' denied plaintiffs’ motion and granted defendants’ motion. Properly labeled, however, it appears that the trial court granted summary judgment, GCR 1963, 117.2(3), in favor of defendants. GCR 1963, 117.3. We affirm.

Unless the Private Security Guard Act modified the common law, defendants are not liable, for "[u]nder the doctrine of respondeat superior there is no liability on the part of an employer for torts intentionally or recklessly committed by an employee beyond the scope of his master’s business”. Bradley v Stevens, 329 Mich 556, 562; 46 NW2d 382, 385; 34 ALR2d 367, 371 (1951).

Plaintiffs rely upon two sections of the act. Section 9(1), which requires as a condition of licensing the filing of a bond or policy of insurance, provides in part:

"The bonds shall be taken in the name of the people of the state, and a person injured by the wilful, malicious, and wrongful act of the licensee or any of his agents or employees may bring an action on the bond or insurance policy in his own name to recover damages suffered by reason of the act.” MCL 338.1059(1); MSA 18.185(9)(1). (Emphasis supplied.)

Section 17(1) provides:

"A licensee may employ as many persons as he deems necessary to assist him in his work of alarm system contractor or private guard or agency and in the conduct of his business, and at all times during the employment may be accountable for the good conduct in the business of each person so employed.” MCL 338.1067(1); MSA 18.185(17)(1). (Emphasis supplied.)

It is plaintiffs’ theory that these two sections create a cause of action independent of the common law. They reason as follows:

"It is a familiar rule of construction that it will not be presumed that the legislature intended to do a useless thing and that if possible every part of a statute must be given effect.” Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782, 785 (1959).

Unless the emphasized "may” in § 17(1) is read as "shall” the section merely restates the obvious, since an employer is accountable at common law under the doctrine of respondeat superior. This would be a useless act. If read as "shall” the section creates a cause of action. The conduct the employer will be accountable for is that set forth in § 9(1): "wilful, malicious, and wrongful act[s]”. Neither section limits liability to acts within the scope of employment. Since Smith’s act was wilful, malicious and wrongful, the employer and his insurer are liable.

Plaintiffs’ analysis is defective. "[Statutes will not be extended by implication to abrogate the established rules of common law.” Silver v International Paper Co, 35 Mich App 469, 472; 192 NW2d 535, 536 (1971), see Bandfield v Bandfield, 117 Mich 80, 82; 75 NW 287, 288 (1898). From the Legislature’s use of the words "may” and "shall” in the act it is readily apparent that it understood the permissive-mandatory distinction between the two words. See particularly the remainder of § 9(1). The Legislature’s use of the word "may” in §17(1) indicates that it intended liability to be dependent upon the existence of liability at common law. Since codification of the common law is not a useless act, we see no reason to adopt plaintiffs’ strained interpretation of the act.

Affirmed. Costs to defendants.


author: Beasley, J. R. M. Maher, J.

text:
    WEXFORD COUNTY PROSECUTOR v PRANGER
    Docket No. 77-2535.
    Submitted January 6, 1978, at Grand Rapids.
    Decided May 9, 1978.
    Burton A. Hines, Jr., the Wexford County Prosecuting Attorney, commenced an action against Robert Pranger, Deane Frier, and others, as members of the Cadillac City Commission seeking a declaratory judgment that closed sessions by the commission be limited and that a municipal employee residency policy that resulted from a closed session of the commission be declared invalid, and for an injunction to enjoin further noncompliance with the state’s open meetings statute. The Wexford Circuit Court, Frank H. Miltner, J., held that the closed session violated the open meetings statute and granted the injunctive relief requested by the plaintiff. Defendants appeal. Held:

    The closed session was held in violation of Michigan’s Open Meetings Act, however, the facts do not justify the issuance of an injunction. The injunction is vacated.
    Affirmed in part, reversed in part.
    R. M. Maher, J., concurred in part and dissented in part. He wrote that the act regarding an action to compel compliance with the Open Meetings Act or to enjoin noncompliance with the act provides that, if a public body is not complying with the act, the prosecuting attorney of the county in which the public body serves may commence a civil action to enjoin further noncompliance with the act and, therefore, such relief should be granted when a public body fails to comply with the act. He dissented from that portion of the majority’s opinion which vacated the injunction.
    Opinion of the Court
    1. Municipal Corporations—Labor Relations—Open Meetings Act —Public Meetings—Exceptions—Statutes.
    All meetings of the public bodies described in the Open Meetings Act shall be open to the public; the only exceptions for the specified public bodies to meet in closed session are the eight situations defined in the act (MCL 15.261 et seq.; MSA 4.1800[11] et seq.).

      References for Points in Headnotes

       56 Am Jur 2d, Municipal Corporations, Counties, and other
    Political Subdivisions § 161.

       42 Am Jur 2d, Injunctions §§ 40, 48, 49.

      2. Municipal Corporations—Open Meetings Act—Interpretation —Exceptions—Closed Meetings—Statutes.
    Michigan’s Open Meetings Act is entitled to a broad interpretation to promote openness in government, therefore, the statute which provides eight exceptions for specified public bodies to meet in closed session should be strictly construed to limit the situations that are not open to the public (MCL 15.261 et seq.; MSA 4.1800[11] et seq.).

    3. Municipal Corporations—Open Meetings Act—Closed Meetings—Collective Bargaining—Interpretation—Statutes.
    The section of the Open Meetings Act regarding closed sessions of public bodies for strategy and negotiation sessions connected with collective bargaining permits closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence; negotiation sessions under this section refer to actual collective bargaining sessions between employer and employee; therefore, a closed session of a city commission at which a new residency policy for city employees was formulated was held in violation of the act where collective bargaining on the contracts involved was not to begin for three months thereafter (MCL 15.268; MSA 4.1800[18]).
    4. Injunction—Remedies—Extraordinary Remedies—Remedies at Law—Irreparable Injury.
    Injunctive relief is an extraordinary remedy which issues only when justice requires and there is not an adequate remedy at law, and when there is real and imminent danger of irreparable injury.
    Concurrence in part, Dissent in part by R. M. Maher, J.
    5. Municipal Corporations—Open Meetings Act—Noncompliance —Prosecutors—Injunctions—Statutes.

      The Open Meetings Act provides that if a public body is not complying with the act the prosecuting attorney of the county in which the public body serves may commence a civil action to enjoin further noncompliance with the act (MCL 15.271; MSA 4.1800[21]).

      Burton A. Hines, Jr., Prosecuting Attorney, for plaintiff.

      Edward W. Ten Houten, for defendants.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Beasley, J.

This case involves interpretation of the Open Meetings Act of 1977.

At the regular meeting of May 9, 1977, the Cadillac City Commission recessed and held a closed meeting to discuss the city residency policy for city employees. The closed meeting, which lasted slightly over an hour, was held at the request of the city manager with the approval of the city attorney. Then the commission resumed in open meeting, announced a new residency policy and indicated an ordinance would be formulated to implement the policy.

In 1967, the city had adopted a residency policy which permitted municipal employees to reside in four adjoining townships in addition, of course, to residency in the city.

In 1974, in a collective bargaining agreement obtained by way of statutory compulsory arbitration, the police officers association succeeded in getting permission to reside in four additional townships outside of the city. In March, 1977, a fireman sought permission to reside permanently in Herring Township, which had been one of the four townships in which residence was permitted under the 1967 policy.

Although the labor contract with the firemen does not cover residency, the 1967 policy had been altered previous to the labor contract to prohibit firemen from living outside the city.

On May 24, 1977, plaintiff prosecutor commenced action against defendant city commission for a declaratory judgment limiting closed sessions in these circumstances to the time of actual negotiations, invalidating the policy resulting from the closed session, and enjoining noncompliance.

Defendants filed a motion for summary judgment, plaintiff answered and also requested summary judgment. The parties agreed the case could be decided on the pleadings and exhibits, and the trial court then rendered an opinion that the closed session violated the open meetings statute and that an injunction would be granted preventing "further discussion on ordinance matters under the guise of collective bargaining negotiations”.

Defendants appeal as of right.

The issues to be resolved are: was the closed session of the Cadillac City Commission on May 9, 1977, at which a new residency policy for city employees was formulated, held in violation of Michigan’s Open Meetings Act, and, if so, do the facts justify issuance of an injunction?

Michigan’s new Open Meetings Act replaces the repealed 1968 statute which had required certain governing bodies to be open to the public at any meetings where public action was taken. The new sunshine law provides that all meetings of the public bodies described in the statute shall be open to the public. The only exceptions where the specified public bodies may meet in: closed session are the eight situations defined in § 8.

In some states, the legislatures have expressed in their statutes a desire that their new sunshine laws be interpreted liberally in favor of openness. While the Michigan Legislature has not chosen to expressly so provide, in the light of the provisions newly enacted and of the legislative history, we interpret the new open meeting legislation with similar liberality. In so doing, we construe the closed session exceptions strictly to limit the situations that are not open to the public.

At issue here is only subsection (c) of § 8, which provides:

"Sec. 8. A public body may meet in closed session only for the following purposes:
"(c) For strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement when either negotiating party requests a closed hearing.”

In the within case, the stated reason for the closed session was to discuss the matter of residency of municipal employees, including policemen and firemen, each of which had separate labor contracts which did not expire until December, 1977. Immediately following the closed meeting, the commission resumed the open meeting and announced a new policy, requiring all city employees to reside in the city as of January 1, 1978, except those then living outside the city.

As a result of the trial court judgment and injunction, no further action has been taken by defendant commission.

We are not without sympathy for the plight of the legislative bodies of home rule cities and their attorneys in dealing with required residency of municipal employees questions. The recent history of residence requirements as a condition of municipal employment indicates it has become a mandatory subject of collective bargaining.

We are also aware that with respect to police unions and fire unions, where collective bargaining reaches an impasse, compulsory arbitration is available to impose a labor contract on the parties by operation of law. The labor contract between Cadillac police officers and the City of Cadillac was arrived at by compulsory arbitration, which labor contract contains an expanded residence provision, i.e., four additional townships were added to the four specified in the 1967 policy. It seems safe to conclude that the residency provision in the labor agreement resulting from compulsory arbitration was imposed over the objection of and against the wishes of the City of Cadillac.

Against this background, we believe that defendant commissioners should, at some stage, be permitted to meet in closed session to discuss and arrive at strategy for its collective bargaining position relating to residency of municipal employees without being required to disclose every innuendo and consideration to the adversary unions. We would not consider such a desire to be a guise to avoid compliance with the sunshine statute.

At the same time, we indicate our whole-hearted approval of the objectives of the open meeting law.

In Florida, the supreme court has interpreted that state’s statute as providing that preliminary labor negotiations may be conducted in private. It may be that our Legislature should broaden the exception in our statute to permit closed sessions to formulate collective bargaining plans at any time, but we consider that a legislative matter better decided within the framework of the legislative process.

As indicated, we believe the Michigan Open Meetings Act of 1977 is entitled to a broad interpretation to promote openness in government.

We interpret § 8(c) to permit closed strategy sessions only when negotiation of a labor agreement is in progress or about to commence. In the within case, there was involved a mandatory collective bargaining subject. Collective bargaining was not to begin until August for renewal of the labor contract which was to expire December 31. Under the circumstances, we do not consider the May meeting of the city commission qualified for exemption from the provisions of the Open Meetings Act. We interpret negotiation sessions under § 8(c) to refer to actual collective bargaining sessions between employer and employee.

Insofar as the declaratory judgment finds the closed session of May 9, 1977, in violation of the open meetings statute, we affirm.

As to the question of whether the facts in the within case justify issuance of an injunction, we note that injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is real and imminent danger of irreparable injury.

On the record before us, we decline to find defendant commissioners’ actions a guise or a subterfuge. On the contrary, we believe defendant commissioners acted in good faith in reliance upon advice from their city attorney.

Under the circumstances of this case, we see no reason to continue the injunction. We assume defendant commissioners will comply with the open meetings law as its meaning unfolds. The injunction will be vacated.

Affirmed in part, reversed in part; no costs, a public question being involved.

D. F. Walsh, P. J., concurred.

R. M. Maher, J.

(concurring in part, dissenting in part). I dissent from that portion of the majority’s opinion which vacates the injunction. The plain language of the Open Meetings Act persuades me that the trial court should be affirmed in full.

In MCL 15.271; MSA 4.1800(21), the act provides that if a public body is not complying with the act, the prosecuting attorney of the county in which the public body serves may commence a civil action to enjoin further noncompliance with the act.

The majority agrees that the act has been violated by defendants’ noncompliance. Yet my colleagues deny the specific relief made available in the statute. They do not and cannot say that the injunction was improperly granted, for it was not. Rather, the majority apparently puts its faith in the defendants and assumes they will comply with the Open Meetings Act. That relief, if one may call it such, is, however, not the relief afforded by the statute nor is it the relief requested by the prosecuting attorney.

The majority cites no proper reason for its vacation of the injunction. The statute provides for injunctive relief when a public body fails to comply with the act. The injunction against the members of the Cadillac City Commission enjoining further noncompliance with the act should be continued.

       MCL 15.261 et seq.; MSA 4.1800(11) et seq., effective March 31, 1977.

       The identification of sunshine with open government was a result of Fla Stat Ann Sec 286.011, which is entitled "Government in the Sunshine Law”. The designation apparently is an attempt to characterize government under the statute as government operating in the sunshine of public scrutiny rather than the shadows of bureaucratic secrecy.

       MCL 15.268; MSA 4.1800(18).

       73 Mich L Rev 1192, n 1321 (1975):

        "See, e.g., Ind. Code § 5-14-1-1 (1971); Mont. Rev. Codes Ann. § 82-3401 (1966); Wash. Rev. Code §42.30.910 (1974). See also Common Cause Proposed Act, supra note 1309, § 1; 36 Op. Ore. Atty. Gen. 543, 544 (1973). Cf. Ark. Stat. Ann. §12-2802 (1968); Cal. Govt. Code §§ 11120 (West Supp. 1975), 54950 (West 1966); Ill. Rev. Stat. ch. 102, §41 (1973); Me. Rev. Stat. Ann. tit. 1, §401 (1964); Nev. Rev. Stat. § 241.010 (1973); N.J. Stat. Ann. § 10:4-1 (Supp. 1974); N.C. Gen. Stat. § 143-318.1 (1974); Utah Code Ann. § 52-4-1 (1970); Wis. Stat. Ann. § 66.77(1) (1974 West’s Wis. Legis. Serv. 332).”

       Sunshine laws are frequently considered a recent innovation in government, but they are not new to Michigan, which adopted sunshine legislation as early as 1895. As indicated by C. J. McNeil, Director, Michigan Legislative Service Bureau, in a 1962 letter, "section 5.1703 of chapter 48 of the Michigan code is our Compiled Law section number 88.7, and the language is in the original Act No. 215 of the Public Acts of 1895.” The section referred to has to do with meetings of city councils and states: "All meetings and sessions of the council shall be public.”
      For background of events leading to the passage of the Michigan Open Meetings Act of 1977, see Sunshine or Shadows: One State’s Decision, 1977 Det Col L Rev 613, 619-621.

       MCL 15.268; MSA 4.1800(18).

       See the following cases, all of which deal with the constitutionality, validity and applicability of residency provisions in municipal charters, ordinances, policies and labor agreements in varying ways.

        State, County & Municipal Employees Local 339 v Highland Park, 363 Mich 79; 108 NW2d 898 (1961), Williams v Detroit Civil Service Commission, 383 Mich 507; 176 NW2d 593 (1970), rev’g 15 Mich App 55; 166 NW2d 309 (1968), Park v Lansing Board of Education, 32 Mich App 752; 189 NW2d 60 (1971), Detroit Police Officers Association v Detroit, 385 Mich 519; 190 NW2d 97 (1971), Detroit Police Officers Association v Detroit, 41 Mich App 723; 200 NW2d 722 (1972), Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), rev’g in part and aff'g in part, Detroit Police Lieutenants and Sergeants Association v Detroit, 56 Mich App 617; 224 NW2d 728 (1974), Gantz v Detroit, 392 Mich 348; 220 NW2d 433 (1974), Rockwell v Crestwood School District Board of Education, 393 Mich 616; 227 NW2d 736 (1975), Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), Pontiac Police Officers Association v Pontiac, 397 Mich 674; 246 NW2d 831 (1976).

       MCL 423.231 et seq.; MSA 17.455(31) et seq.

         See, MCL 15.263(8)(e); MSA 4.1800(13)(8)(e), which provides the Open Meetings Act shall not apply to an arbitrator or arbitration panel "when deliberating the merits of a case”.

        Bassett v Braddock, 262 So 2d 425, 426-428 (Fla, 1972). The colorful language employed by the Florida Court is instructive:
      "Such 'intensity’ of the 'sunrays’ under the statute, as urged by this appeal, could cause a damaging case of 'sunburn’ to these employees or to the public which elected the Board.
      "[M]eaningful collective bargaining * * * would be destroyed if full publicity were accorded at each step of the negotiations. * * * The public’s representatives must be afforded at least an equal position with that enjoyed by those with whom they deal. The public should not suffer a handicap at the expense of a purist view of open public meetings, so long as the ultimate debate and decisions are public and the 'official acts’ and 'formal actions’ specified by the statute are taken in open 'public meetings.’
      "Every action emanates from thoughts and creations of the mind and exchanges with others. These are perhaps 'deliberations’ in a sense but hardly demanded to be brought forward in the spoken word at a public meeting. To carry matters to such an extreme approaches the ridiculous; it would defeat any meaningful and productive process of government. One must maintain perspective on a broad provision such as this legislative enactment, in its application to the actual workings of an active Board fraught with many and varied problems and demands.” (Footnotes omitted.)

       After all, the Open Meetings Act became effective March 31, 1977, and the closed session complained of occurred less than six weeks thereafter on May 9, 1977. This timing, together with obtaining legal advice from the city attorney, does not indicate any pattern of intentional violation such as to require injunctive relief.


author: Cynar, J. T. M. Burns,

text:
    BELCHER v AETNA CASUALTY & SURETY COMPANY
    Docket No. 77-3931.
    Submitted March 21, 1978, at Detroit.
    Decided May 9, 1978.
    Leave to appeal applied for.
    Marie Belcher is the mother of Stacy Belcher, who died in a single-car accident on August 21, 1976, while driving an automobile owned and registered to himself. It was determined that the deceased’s certificate of insurance was a forgery. Marie Belcher then filed a claim under the assigned claims provision of the "No-Fault Insurance Act”. The Aetna Casualty & Surety Company, to which it was assigned, denied the claim. Plaintiff commenced an action against the company and the Wayne Circuit Court, Verne C. Boewe, J., granted summary judgment in favor of defendant for the reason that plaintiffs claim was derivative of that of the decedent and that since decedent could not have collected in his own right, plaintiff could not recover. Plaintiff appeals. Held:

    1. A surviving dependant’s right to recover personal protection insurance benefits under the "No-Fault Insurance Act” is dependant upon and derivative of the deceased’s right to receive work-loss benefits had he not died.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the Legislature did not intend and the "No-Fault Insurance Act” did not make the surviving dependant’s right of recovery dependant or derivative but, rather, created a compensation for a loss suffered personally by the surviving dependant.
    Opinion of the Court
    1. Insurance—Automobiles—No-Fault Insurance—Statutes.
    The purpose of Michigan’s so-called "No-Fault Insurance Act” is to ensure the compensation of persons injured in an automobile accident and, to that end, the act requires the owner or registrant of a motor vehicle to maintain security for payment of benefits and makes knowingly operating a vehicle not s.o insured a misdemeanor (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

      References for Points in Headnotes

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 1, 3.

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 29, 31.

       Am Jur 2d, New Topic Service, No-Fault Insurance § 31.

      2. Insurance—Automobiles—No-Fault Insurance—Surviving Defendants—Right op Recovery.
    Payment of personal protection insurance benefits to the surviving dependants of an insured person who has died as a result of injuries sustained in a motor vehicle accident is a substitute for the payment of benefits directly to the injured party and, therefore, a surviving dependant’s right to recover such benefits is dependant upon and derivative of the deceased’s right to receive work-loss benefits had he not died.
    Dissent by T. M. Burns, J.
    3. Insurance—Statutes—Automobiles—No-Fault Insurance—• Surviving Dependants—Right op Recovery.

      It was not the Legislature’s intent and the "No-Fault Insurance Act” does not bar recovery of benefits by surviving dependants of an injured person who has died as a result of injuries sustained in a motor vehicle accident where the victim would have been barred from recovering personal protection insurance benefits had he survived; the fact that the statutory measure of loss is essentially the same as if the victim had lived and was claiming benefits in his own name is insufficient to conclude that the survivor’s claim is derivative (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

      4. Insurance—Statutes—Automobiles—No-Fault Insurance— Surviving Dependant—Right op Recovery.

      A survivor of an injured person who died as a result of injuries sustained in a motor vehicle accident claims the right to survivor's loss benefits under a statute providing for such benefits in his own right and not as a representative of the deceased person (MCL 500.3108; MSA 24.13108).

    5. Insurance—Statutes—Automobiles—No-Fault Insurance— Surviving Dependant—Right op Recovery.

      A dependant of a person who suffered accidental bodily injury arising out of the ownership operation or use of a motor vehicle as a motor vehicle is a "person entitled to claim” benefits under a statute authorizing personal protection insurance benefits (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

      Rosenbaum, Bloom, Kaufman, Appel & Moses, for plaintiff.

      Collins & Einhorn, P. C. (by Clayton F. Farrell), for defendant.
    Before: D. C. Riley, P. J., and T. M. Burns and Cynar, JJ.
   Cynar, J.

Plaintiff appeals as a matter of right from a summary judgment granted to defendant. The relevant facts are largely undisputed. Stacy Belcher, plaintiff’s son, died in a single car accident on August 21, 1976. At the time of the accident, decedent was operating a vehicle owned and registered to himself. Subsequently, it was determined that the deceased’s certificate of insurance was a forgery. Plaintiff then filed a claim with the Assigned Claims Facility of the Michigan Secretary of State, pursuant to MCL 500.3172; MSA 24.13172. This claim was assigned to defendant. On March 23, 1977, defendant denied plaintiff’s claim. On April 15, 1977, plaintiff filed a complaint in Wayne County Circuit Court, alleging that she was entitled to survivor’s benefits. On September 23, 1977, defendant’s motion for summary judgment was granted on the ground that the plaintiff’s claim was derived from that of her son and that his claim was barred by MCL 500.3113(b); MSA 24.13113(b).

On appeal it is undisputed that plaintiff’s son, had he survived, would not have been entitled to receive personal protection insurance benefits. MCL 500.3113(b); MSA 24.13113(b). The only issue to be determined in this case is whether a surviving dependant of one barred from receiving such benefits is barred from receiving survivor’s benefits. This issue has not. previously been addressed by this Court.

The purpose of Michigan’s so-called "No Fault Insurance Act” is to ensure the compensation of persons injured in an automobile accident. Hill v Aetna Life & Casualty Co, 79 Mich App 725, 728; 263 NW2d 27 (1977), Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218, 222; 261 NW2d 554 (1977), O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487, 495; 245 NW2d 801 (1976). Toward this end, the act requires the owner or registrant of a motor vehicle to maintain security, usually in the form of insurance, for payment of benefits of personal protection insurance, MCL 500.3101(1); MSA 24.13101(1). The operation of a vehicle which is not so insured constitutes a misdemeanor as to its owner, punishable by fine and/or imprisonment. MCL 500.3102(2); MSA 24.13102(2).

In addition to the possible criminal charge, the owner of a vehicle which is not insured is not entitled to recover personal protection insurance benefits. MCL 500.3113(b); MSA 24.13113(b). This statute reads in full:

"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
"(a) The person was using a motor vehicle which he had taken unlawfully, unless he reasonably believed that he was entitled to take and use the vehicle.
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsection (3) and (4) of section 3101 was not in effect.
"(c) The person was not a resident of this state, was an occupant of a motor vehicle not registered in this state and was not insured by an insurer which has filed a certification in compliance with section 3163.”

It is this statute which would have prevented plaintiffs son from recovering personal protection insurance benefits, had he survived.

Plaintiff contends, however, that, as a surviving dependant, she is nonetheless entitled to benefits under the no-fault act. She notes that surviving dependants are not excluded from receiving personal protection insurance benefits under MCL 500.3113; MSA 24.13113 and relies upon MCL 500.3108; MSA 24.13108 and MCL 500.3172; MSA 24.13172 in support of her right to recovery. MCL 500.3108; MSA 24.13108 provides for the payment of personal protection insurance benefits for a surviving dependant’s loss in a situation where a person has died. MCL 500.3172; MSA 24.13172 permits one to obtain personal protection insurance benefits through an assigned claims plan, where no personal protection insurance is applicable to the injury.

Although the statutory language is hardly clear, we hold that plaintiff is not entitled to recover personal protection insurance benefits. This is because her right to recover is dependant upon or derivative of her son’s rights to personal protection benefits. Since he could not have recovered such benefits, neither can she.

The language of various sections of the no-fault act is supportive of this conclusion. MCL 500.3112; MSA 24.13112 commences by stating:

"Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependants * * *."

This language indicates that the payment of such benefits to the surviving dependants where the injured person has died is a substitute for the payment of benefits directly to the injured party. Further support for this conclusion can be found by comparing the method of computing survivor’s benefits, MCL 500.3108; MSA 24.13108, with the method for computing the work loss portion of the personal protection benefits available to an injured person, MCL 500.3107; MSA 24.13107. Both are payable for up to three years and are subject to a $1000 maximum for any 30-day period. Both include the cost of expenses, up to $20 per day, incurred in obtaining services which would have been provided by the injured person. Both provide for the support of the injured person’s dependants. Survivor’s benefits do so directly, by paying the dependant survivor that amount which the deceased would have provided for support. In the case of work-loss benefits, the injured party is provided with benefits consisting of lost income and part of that amount is, presumably, used for the support of dependants. In addition, the express language of MCL 500.3107(b); MSA 24.13107(b) excludes from work loss any loss incurred after the date on which the injured person dies. Thus, there can be no simultaneous recovery for survivor’s benefits and work-loss benefits.

Since survivor’s benefits are intended as a substitute for the work-loss portion of personal protection benefits, a dependant survivor’s right to benefits must necessarily depend upon the right of the injured person to receive work-loss benefits had he survived. Here, however, the deceased would have been barred from claiming any personal protection benefits. Thus, his surviving dependant is also barred.

Such a conclusion makes good sense as well. There is no logical reason to provide benefits to the surviving dependants of an uninsured deceased when no such benefits are available to the dependants of an uninsured individual who survives. Indeed, due to continuing medical expenses, the dependant in the latter situation may have a greater need for such benefits. This Court will not construe a statutory scheme so as to provide an unreasonable and irrational result. Collins v Secretary of State, 384 Mich 656, 666; 187 NW2d 423 (1971). Thus, this Court is unwilling to interpret the provisions of the no-fault act in such a way as to grant plaintiff a benefit when she would not be entitled to benefits had her son survived.

Since plaintiffs right to survivor’s benefits is dependant upon her son’s rights to benefits had he survived, the language of MCL 500.3113(b); MSA 24.13113(b) that would have barred her son from recovery bars her as well. The doctrine of expressio unius est exclusio alterius, Valenti Homes Inc v City of Sterling Heights, 61 Mich App 537; 233 NW2d 72 (1975), is thus inapplicable, since plaintiffs action is, in effect, barred by the express language of the statute. It would have been repetitious to provide an additional subsection to MCL 500.3113; MSA 24.13113, barring the survivors of an uninsured deceased from recovery, when such persons are necessarily barred by the language of subsection (b).

Nor can plaintiff find support for her position in the language of MCL 500.3172; MSA 24.13172, which provides for claims against the Assigned Claims Facility. That statute is limited to persons "entitled to claim”. As noted above, plaintiff is not so entitled. Therefore, her argument must fail and summary judgment was properly granted in this case.

Affirmed. No costs, a public question being involved.

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

T. M. Burns,

(dissenting). I agree that the issue raised in this appeal is one of first impression, and that the statutory language is not as clear as it could have been. However, my reading of the entire statute convinces me that it was not the legislative intent to prevent persons such as plaintiff in this case from recovering and I, therefore, dissent.

Under § 3105 of the act, an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation or use of a motor vehicle as a motor vehicle "subject to the provisions of this chapter”. Section 3105(3) makes it clear that bodily injury includes death.

Because the injury resulted in death in this case, plaintiff is claiming survivor’s loss benefits under § 3108. Although the statutory measure of this loss is essentially the same as if the decedent had lived and was claiming benefits in his own name, I cannot conclude from that fact, as does the majority, that the survivor’s claim can be called derivative. The fact that the survivor’s loss is distinct is shown by § 3110(4) which provides that the survivor’s loss accrues when it is incurred, rather than at the time of the accident, and the language of § 3108 itself. Plaintiff is claiming a loss she incurred herself, she is not attempting to recover a loss her son incurred personally, and she seeks to recover only in a representative capacity.

Plaintiff made her claim for survivor’s loss to the assigned claims facility under § 3172 which provides in part:

"A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance is applicable to the injury * * *

The real question, and the focus of the dispute between the parties, is whether plaintiff is a "person entitled to claim”. I would hold that she is.

Plaintiff is a dependent of a person who suffered accidental bodily injury arising out of the ownership, operation or use of a motor vehicle as a motor vehicle, as those terms are defined in the act. This is all that must be shown to make plaintiff "a person entitled to claim”. If she is not a person entitled to claim, it must be because of a specific exclusion found in the statute. The exclusions and limitations of § 3105 to § 3116 apply to claims made to the assigned claims facility. MCL 500.3173; MSA 24.13173.

The defendant relies solely upon the exclusion contained in § 3113(b). This section provides in relevant part:

"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
"(b) The person was the owner or. registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.” (Emphasis supplied.)

Although "person” is not defined in the no-fault chapter, it is defined in § 114 of the Insurance Code and includes "an individual”. The majority has expanded the statutory definition to include not only the individual, but his dependents as well. If the act is applied as written, the exclusion applies only to the individual who was the owner or registrant of a motor vehicle involved in the accident and had not acquired the appropriate security.

The exclusions are personal and should not be expanded. Under MCL 500.3101; MSA 24.13101, it is only the owner or registrant who is required to maintain security for the payment of benefits. MCL 500.3102(2); MSA 24.13102(2) imposes criminal liability only on the owner or registrant of a motor vehicle who operates it without security, or someone who operates the vehicle with knowledge that there is no security in force. The whole tenor of the act shows that it applies to persons, i.e., individuals; not individuals and their dependents.

This interpretation, that only the person who violates the act should go without benefits, is further supported by § 3177. That section provides:

"An insurer obligated to pay personal protection insurance benefits for accidental bodily injury * * * to the spouse or relative resident in the household of the owner or registrant of an uninsured motor vehicle may recover such benefits paid and appropriate loss adjustment costs incurred from the owner or registrant of the uninsured motor vehicle or from his estate. Failure of such a person to make payment within 30 days is a ground for suspension or revocation of his motor vehicle registration and operator’s license. An uninsured motor vehicle for the purpose of. this section is a motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident.”

Unless persons such as the plaintiff are persons "entitled to claim” under § 3172, the repayment provisions of § 3177 are meaningless. We should not presume that the Legislature created meaningless legislation.

There is no statutory exclusion which would bar plaintiff’s claim and the summary judgment should be reversed.

       MCL 500.3108; MSA 24.13108 reads:
      "Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”

       MCL 500.3172; MSA 24.13172 reads:
      "A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In such case unpaid benefits due or coming due are subject to being collected under the assigned claims plan, and the insurer to which the claim is assigned, or the assigned claims facility if the claim is assigned to it, is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility.”

       Such a conclusion is consistent with the analysis in wrongful death actions, MCL 600.2921; MSA 27A.2921, MCL 600.2922; MSA 27A.2922, where the right of recovery is dependant upon the right of the deceased to bring an action had he survived. Maiuri v Sinacola Construction Co, 382 Mich 391, 395; 170 NW2d 27 (1969), Toth v Goree, 65 Mich App 296, 298; 237 NW2d 297 (1975).

       MCL 500.3107; MSA 24.13107 reads in full:
      "Personal protection insurance benefits are payable for the following:
      "Allowable expenses.] (a) Allowable expenses of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation. Allowable expenses within personal protection insurance coverage shall not include charges for a hospital room in excess of a reasonable and customary charge for semiprivate accommodations except when the injured person requires special or intensive care, or charges for funeral and burial expenses in excess of $1,000.00.
      "Work loss; loss of income.] (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 and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. 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. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.”

       MCL 500.3108; MSA 24.13108 reads:
      "Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.”

       MCL 500.3105; MSA 24.13105.

       MCL 500.3108; MSA 24.13108.

       Compare the wrongful death act, MCL 600.2922; MSA 27A.2922, which specifically allows suit only if the decedent could have brought the suit had he survived.

       MCL 500.3110(4); MSA 24.13110(4).

       MCL 500.3172; MSA 24.13172.

       This fact is taken as true on our review of the grant of summary judgment. Since plaintiff is not within the class of persons who are conclusively presumed to be dependent in MCL 500.3110; MSA 24.13110, she must prove her dependency under § 3110(2).
      Survivor’s loss under § 3108 is geared to dependency on the deceased at the time of the accident.

       MCL 500.3113; MSA 24.13113.

       MCL 500.114; MSA 24.1114.

       MCL 500.3177; MSA 24.13177.


author: D. E. Holbrook, J.

text:
    SCHLITTER v SECOND NATIONAL BANK OF SAGINAW
    Docket No. 77-4217.
    Submitted March 6, 1978, at Grand Rapids.
    Decided May 9, 1978.
    Linda Schlitter purchased a motorcycle and financed it through the Second National Bank of Saginaw. An agreement was executed between the parties whereby the bank was given a security interest in the motorcycle. After an alleged default in payments by Linda Schlitter, allegedly sufficient to constitute a breach of the security agreement, agents of the bank repossessed the motorcycle. Linda Schlitter commenced an action against the bank seeking treble damages for the defendant’s violation of the Collection Practices Act, damages for the amount of her interest in the motorcycle and actual and consequential damages for the defendant’s forced entry through a locked and closed door of plaintiffs dwelling. Summary judgment for defendant bank on the count which alleges a violation of the Collection Practices Act, Ogemaw Circuit Court, Carl L. Horn, J., holding that the strictures of the Collection Practices Act do not extend to the defendant. Plaintiff appeals. Held:

    State and national chartered banks are not excluded from the operation of those portions of the Collection Practices Act which prohibit certain conduct.
    Reversed.
    Banks and Banking—Collection Practices Act—Words and Phrases—Statutes.
    State and national chartered banks may be excluded from the licensing requirements of the Collection Practices Act, but they are not excluded from the operation of the act entirely; those banks still fall within the definition of a "person” as that term is defined by the act and they are prohibited from engaging in certain conduct with regard to collection practices (MCL 445.211 et seq.; MSA 19.655[21] et seq.).

    Reference for Points in Headnote
    10 Am Jur 2d, Banks § 694.

      Raymond L. King (by Kathryn J. Root), for plaintiff.

      Harry M. Titus, for defendant.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   D. E. Holbrook, J.

Linda Schlitter purchased a 1975 Honda motorcycle from Linwood Cycle Sales paying $258.38 as a down payment and financing the balance with defendant. An agreement was executed between the parties which gave defendant a security interest in the motorcycle. Defendant alleges a default in payment by plaintiff sufficient to constitute a breach of the security agreement.

Plaintiff claimed, in a suit filed subsequent to defendant’s repossession, that when the motorcycle was repossessed defendant’s agents entered her house without permission, while she was away, and took the motorcycle from inside her house after using force to gain entry through a closed and locked door. However, defendant denies this and asserts that the motorcycle was removed from a "storm porch” attached to plaintiff’s mobile home and that at no time did defendant’s agents enter the home itself.

In count I of the complaint filed by plaintiff, it was alleged that defendant violated the Collection Practices Act, MCL 445.211 et seq.; MSA 19.655(21) et seq. Defendant brought a motion for summary judgment as to count I of plaintiff’s complaint pursuant to GCR 1963, 117.2(1), claiming that defendant was exempt from the act.

The circuit court for Ogemaw County granted defendant’s motion for summary judgment, holding that the Collection Practices Act did not apply to it.

The question raised by plaintiff on appeal is whether defendant is subject to those portions of the act applicable to a "person” by virtue of the definition and use of the word "person” contained in the act. Under the Collection Practices Act the terms "person” and "collection agency” are distinguished. MCL 445.212; MSA 19.655(22). "Person” is defined as "an individual, partnership, association, corporation, voluntary association, trust, or other legal entity”. MCL 445.212(a); MSA 19.655(22)(a). The term "collection agency” is given a more narrow definition than the term "person”, and in addition certain entities are excluded from the definition of "collection agency”. MCL 445.212(b); MSA 19.655(22)(b), MCL 445.213; MSA 19.655(23).

It was the trial court’s opinion that § 3 of the act specifically provided that state and national chartered banks were excluded from the provisions of the act and that count I of plaintiffs complaint did not state a cause of action against defendant. The court therefore granted defendant’s motion for summary judgment as to count I.

Defendant relies on Attorney General Opinion No. 5227 issued September 16, 1977, in which the Attorney General stated that Federally chartered and state banks are not required to be licensed under the Collection Practices Act. A "person” is required to obtain a license when operating a "collection agency” or engaging in the business of a "collection agency”. MCL 445.214(1); MSA 19.655(24)(1).

While state and national chartered banks may be excluded from the licensing requirements of § 4 of the act, those banks are not excluded from the operation of the act entirely. Those banks still fall within the definition of a "person” within that meaning under the act and are prohibited from engaging in certain conduct with regard to collection practices.

Under §§ 18 and 19 of the act, MCL 445.228; MSA 18.655(38), MCL 445.229; MSA 19.655(39), a "person” is prohibited from doing the acts set out therein. This is not limited strictly to collection agencies, but includes those who come within the definition of "person”, which is all-encompassing. OAG, No. 4954 (April 15, 1976).

In its opinion the trial court, in granting defendant’s motion for summary judgment, held that:

"Pursuant to GCR 117, it is the opinion of the Court that said count does not state a cause of action against the Defendant. The Court finds that Act No. 361 of the Public Acts of 1964, entitled 'Collection Practices Act’, does not apply to this Defendant. Section 3 of that act, being Section 445.213, MCLA, specifically provides that state and national chartered banks are excluded from the provisions of the said act.”

This holding of the trial court was erroneous. While state and national chartered banks are excluded from the licensing requirements of the act, they are not excluded from the operation of §§ 18 and 19 which prohibit certain conduct by a "person”. Since the conduct complained of by plaintiff may be within the provisions of § 19, she has stated a cause of action against defendant.

Defendant also asserts that plaintiff’s appeal is premature since the question of whether defendant’s repossession of the motorcycle constituted harassment and oppression under § 19 of the act is a question of fact that has to be decided at the time of trial. Therefore, defendant argues that the issue raised on appeal here may become moot. However, defendant overlooks the fact that the trial court has already ruled that defendant is not subject to the provisions and operation of the act. Before plaintiff may maintain her action under the act, it must be shown that defendant comes within its provisions. Therefore, plaintiffs appeal of the trial court’s order is timely.

Since defendant comes within the definition of "person” as it is used in the Collection Practices Act, the trial court improperly ruled that the act did not apply to it. Therefore, the final judgment of the trial court granting summary judgment in favor of defendant was erroneous.

Reversed. Costs to plaintiff.


author: Danhof, C. J. M. J. Kelly, J. T. M. Burns, J.

text:
    HAWKINS v AUTO-OWNERS INSURANCE COMPANY
    Docket No. 77-2780.
    Submitted December 7, 1977, at Grand Rapids.
    Decided May 9, 1978.
    Leave to appeal applied for.
    David Hawkins was injured when a truck which he was operating in the course of his employment left the road. The truck was owned by Hawkins’ employer. Hawkins received workmen’s compensation benefits for his injuries. He applied for and was denied personal protection insurance benefits from Auto-Owners Insurance Company, the insurer of the truck. Hawkins then brought suit against Auto-Owners for payments of all benefits due him under the no-fault automobile insurance act. The Oceana Circuit Court, Harold VanDomelen, J., granted accelerated judgment to Auto-Owners based upon the contention that the Worker’s Disability Compensation Act provided the plaintiffs exclusive remedy. Plaintiff appeals. Held:

    Accelerated judgment was improper because workmen’s compensation is not the plaintiffs exclusive remedy. The plaintiff is mot precluded by the exclusive remedy provision of the worker’s compensation act from bringing suit against the insurer of the vehicle on the facts of this case.
    Reversed and remanded.
    Danhof, C. J., would find that the section of the no-fault automobile insurance act which provides for the deduction from personal protection benefits of any amounts recoverable under state or Federal law is valid and enforceable in this case, allowing deduction of the workmen’s compensation benefits received by the plaintiff from any personal protection benefits to which the plaintiff may be entitled.
    M. J. Kelly, J., agreed that the case should be reversed and remanded for the erroneous grant of accelerated judgment based on the exclusive remedy provision of the Worker’s Disability Compensation Act, but would not reach any further issues.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 73.

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

       Am Jur 2d, New Topic Service, No-Fault Insurance § 12.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

       5 Am Jur 2d, Appeal and Error § 545 et seq.

      T. M. Burns, J., agreed the accelerated judgment was erroneous. Judge Burns would hold, however, that the provision of the no-fault act which calls for deduction of benefits recoverable under state or Federal law is essentially arbitrary and would hold the provision unconstitutional.
    Opinion of Danhof, C. J.
    1. Insurance—Automobiles—Personal Protection Benefits— Workmen’s Compensation—Exclusive Remedy—Statutes.
    The exclusive remedy provision of the Worker’s Disability Compensation Act does not operate to bar an action by an employee who is injured in the course of his employment while occupying an employer-owned motor vehicle against the insurer of the vehicle for personal protection insurance benefits because the insurer is not the plaintiffs employer as defined by the act (MCL 418.131; MSA 17.237[131]).
    2. Insurance—Automobiles—Personal Protection Benefits— Workmen’s Compensation—Statutes.

      A section of the no-fault automobile insurance act which provides for a deduction from personal protection benefits of any amounts recoverable under state or Federal law, although having been declared unconstitutional in other contexts, should apply to prevent a double recovery in a case where an employee is injured in the course of his employment while occupying an employer-owned vehicle; the workmen’s compensation benefits received by the employee should be deducted from any personal protection benefits under the employer’s insurance policy to which the employee may be entitled (MCL 500.3109[1]; MSA 24.13109[1]).

    Concurrence in Result by M. J. Kelly; J.
    3. Judgment—Accelerated Judgment—Workmen’s Compensation —Insurance—Automobiles—Statutes.

      A grant of accelerated judgment based upon the exclusive remedy provision of the Worker’s Disability Compensation Act was improper in a case where an employee was injured in the course of his employment while occupying an employer-owned vehicle, collected workmen’s compensation benefits, and then attempted to collect personal injury protection benefits from the insurer of the vehicle; the Court of Appeals should not

      reach the question of constitutionality of a portion of the no-fault automobile insurance statute (MCL 418.131, 500.3109[1]; MSA 17.237[131], 24.13109[1]).

    Concurrence in Result by T. M. Burns, J.
    4. Insurance—Automobiles—Personal Protection Benefits— Workmen’s Compensation—Statutes.
    An insurer of an employer’s motor vehicle being sued for "no-fault” personal protection benefits by an employee injured in the course of his employment while occupying the vehicle cannot claim protection from suit by reason of the exclusive remedy provided by the Worker’s Disability Compensation Act because it is not being sued for furnishing or failing to furnish "safety inspections or safety advisory services incident to providing workmen’s compensation insurance” (MCL 418.131; MSA 17.237[131]).
    5. Appeal and Error—Court of Appeals—Issues Not Briefed or Argued.

      The Court of Appeals should not reach the question of the constitutionality of a statutory provision where the question was not briefed and argued and where the plaintiff-appellant has expressed a willingness to abide by the statute as written.

    6. Insurance—Automobiles—Personal Protection Benefits— Workmen’s Compensation—Constitutional Law—Statutes.

      Worker’s compensation is a benefit required to be provided under the laws of the state; the legislative scheme which provides that such benefits shall be deducted from amounts recoverable under personal protection insurance of an automobile insurance policy while not requiring deduction of amounts recoverable under private collateral sources is essentially arbitrary and should be found unconstitutional (MCL 500.3109[1]; MSA 24.13109[1]).

      McCroskey, Libner, VanLeuven, Feldman, Kortering, Cochrane & Brock (by Robert O. Chessman), for plaintiff.

      Linsey, Strain & Worsfold, P. C, for defendant.
    Before: Danhof, C. J., and T. M. Burns and M. J. Kelly, JJ.
   Danhof, C. J.

Plaintiff alleges that on June 7, 1976, he was injured in the course of his employment while driving his employer’s truck which was covered under a no-fault motor vehicle insurance policy issued by the defendant to the plaintiffs employer. As a result of the injury, plaintiff received workers’ disability compensation benefits paid by the employer’s workers’ compensation insurance carrier (not the defendant). On May 9, 1977, plaintiff filed suit against defendant seeking to recover no-fault personal protection insurance benefits, MCL 500.3114(3); MSA 24.13114(3). Based on the contention that § 131 of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]), provided that plaintiffs exclusive remedy was through that act, defendant moved for and was granted accelerated judgment. GCR 1963, 116.1(2).

Section 131 of the Worker’s Disability Compensation Act reads:

"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.”

The defendant in the instant case, unlike the defendant in Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), is not plaintiffs employer as defined in § 131. Consequently, that exclusive remedy provision does not operate to bar the instant circuit court action. Therefore, accelerated judgment, based on § 131, was improper and must be reversed.

The statutory schemes of workers’ disability compensation and no-fault motor vehicle insurance provide an employee, such as the plaintiff, who is injured in the course of employment while occupying an employer-owned motor vehicle covered by a no-fault policy issued by an insurance company, at least two potential avenues of recovering compensation. The employee may obtain workers’ disability compensation benefits and also may obtain no-fault benefits. During oral arguments before this Court, plaintiff’s attorney stated in part: "There is an offset proviso within the statute * * * that offset permits the no-fault carrier to not have to double pay * * * We’re certainly not intending to double dip.” This author thoroughly agrees with the view that the plaintiff should not obtain a double recovery. Both of these potential sources of recovery are creatures of the Michigan Legislature and both are paid for by the employer. The Legislature was aware of the possibility of duplicative recovery when it enacted the no-fault motor vehicle insurance act. The problem was addressed in §3109(1) (MCL 500.3109[1]; MSA 24.13109[1]) which reads:

"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”

In Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977), § 3109(1) was held to be void where it operated to reduce, by the amount of workers’ disability compensation benefits received, the no-fault benefits payable under a no-fault insurance policy purchased by the employee. The opinion reads in part at 224-225:

"If the subtraction rule functions as intended, it denies recovery on no-fault policies for the purpose of lowering premiums. * * * [W]orker motorists are forced to purchase insurance on which the law denies them a right of recovery, so that other insureds may enjoy lower premiums for insurance on which they can recover.
"We perceive no way in which this allocation increases premium savings. Forcing a given class to purchase. insurance upon which they cannot recover will tend to reallocate wealth, but will do so in a manner unrelated to any identifiable legislative policy. We do not regard the random redistribution of wealth as a legitimate legislative objective, sufficient to justify the discriminatory effect of § 3109(1).”

The holding and rationale of Pollock do not apply to the situation in the instant case where an employee seeks recovery of benefits provided by a no-fault policy purchased by the employer.

In O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted 397 Mich 848 (1976), § 3109(1) of the no-fault act was declared unconstitutional where its application resulted in deduction of Federal Social Security benefits from no-fault personal injury protection benefits otherwise payable. O’Donnell reads in part at 496:

"Section 3109(1) is very broad—it covers any collateral governmental source. No-fault systems in other states include collateral source set-off provisions, but in Illinois and Florida, for example, the set-off provisions apply only to workmen’s compensation benefits. It might be argued that the latter type of set-off provision is reasonable because the workmen’s compensation benefits are provided without cost to the beneficiary, while private collateral source benefits are not. Cf. Grace v Howlett, supra, [51 Ill 2d 478; 283 NE2d 474 (1972)], Chief Justice Underwood, dissenting. The argument is persuasive.

This analysis applies to the facts of the instant case. Application of § 3109(1) in the instant case would be valid. Therefore, if on remand plaintiff succeeds in establishing an entitlement to no-fault personal protection benefits, in my view an off set for worker’s disability compensation benefits recovered should be made as provided for in § 3109(1).

Reversed and remanded for further proceedings. Costs to plaintiff.

M. J. Kelly, J.

(concurring in result). This opinion is written subsequent to those of my colleagues.

Both of my brothers agree that the case must be reversed for error in granting accelerated judgment based upon the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). Since I join in that ruling but am unwilling to go further I believe the law of this case is that the circuit court is reversed, the matter is remanded for further proceedings and there is little doubt that the court on remand will be greatly aided by the continuing flow of decisions coming out of this Court on the constitutionality issues and probably by Supreme Court decision in O’Donnell v State Farm Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted, 397 Mich 848 (1976), Shavers v Attorney General, 65 Mich App 355; 237 NW2d 325 (1975), lv granted 396 Mich 869 (1976).

T. M. Burns, J.

(concurring). I agree with the conclusion reached in Judge Danhof’s opinion, that the circuit court erred in granting accelerated judgment based on the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), but for the reason stated below I cannot join in his opinion.

MCL 418.131; MSA 17.237(131) provides in relevant part:

"The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section * * * 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance * * * .”

Defendant Auto-Owners is being sued to collect benefits under a policy of insurance issued to provide coverage required by the "no fault” chapter of the insurance code. MCL 500.3101-500.3179; MSA 24.13101-24.13179. It is not being sued for furnishing or failing to furnish "safety inspections or safety advisory services incident to providing workmen’s compensation insurance”. Auto-Owners cannot claim the exclusive remedy protection from suit under § 131 of the Worker’s Disability Compensation Act on these facts.

Whether the exclusive remedy provision of worker’s compensation is a bar to recovery of no-fault benefits was the only question briefed and argued in this case. The constitutionality of the set off provisions of MCL 500.3109; MSA 24.13109 was not raised and I would not reach it in this case, especially since plaintiff has expressed his willingness to abide by the statute as written. However, since Judge Danhof has gratuitously reached this question, I will express my view.

Section 3109(1) requires that "Benefits provided or required to be provided under the laws of any state or the federal government” be deducted from personal injury protection benefits before payment by the insurer. There is no question that worker’s compensation is a "benefit * * * required to be provided” under the laws of this state.

Although there has been some disagreement on the method of analysis and the degree of acceptance of the reasonableness of the distinctions made by the Legislature under this provision, no panel has found § 3109(1) constitutional in its application. O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted, 397 Mich 848 (1976) (set off for Social Security benefits), Wysocki v Detroit Automobile Inter-Insurance Exchange, 77 Mich App 565; 258 NW2d 561 (1977) (set off for Social Security benefits), Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977) (deduction of worker’s compensation benefits from no-fault policy purchased by the employee).

I would reach the same result here, where both the worker’s compensation and no-fault policies are provided by the employer. The problem is that the legislative scheme is essentially arbitrary. Why the distinction between private collateral sources which are required to be provided by law, and those which are not required to be provided? I would suggest that there is no valid reason and find the statute unconstitutional as applied to these facts. O’Donnell v State Farm, supra, at 497-498, Bowser v Jacobs, 36 Mich App 320; 194 NW2d 110 (1971).

       "This type of no-fault set-off provision (reducing no-fault benefits by workmen’s compensation benefits received) has been upheld by the Florida Supreme Court. Lasky v State Farm Insurance Co, 296 So 2d 9, 21 (Fla, 1974).”

       See MCL 418.111; MSA 17.237(111) and MCL 418.301; MSA 17.237(301).

       I disagree with the statement in Pollock, 79 Mich App at 223, that this distinction is reasonable if the legislative purpose was to reduce insurance premiums. When some are allowed duplicative recovery while it is denied to others solely on the basis that their supplemental benefits are required to be provided by law an essentially arbitrary classification has been made.


author: Per Curiam.

text:
    PEOPLE v THOMAS (AFTER REMAND)
    Docket No. 29780.
    Submitted October 6, 1977, at Grand Rapids.
    Decided May 9, 1978.
    Albert W. Thomas, Jr., was convicted, on his plea of guilty, of armed robbery in the Berrien Circuit Court, Julian E. Hughes, J. Prior to sentencing the defendant sought to withdraw his plea claiming he had pled guilty under duress. Defendant’s request was denied and he was sentenced. Defendant appealed to the Court of Appeals which remanded for a hearing on the issue of coercion, 66 Mich App 594 (1976). On remand, the Berrien Circuit Court, Chester J. Byrns, J., found no coercion or reason to permit withdrawal of the plea. Defendant appeals. Held:

    The Court of Appeals resolves doubts regarding substántiation of a defendant’s reasons for withdrawal of a plea of guilty in the defendant’s favor; however, the trial court’s findings will not be disturbed on appeal where the record leaves no room for doubt that the defendant’s reasons are lacking in substance.
    Affirmed.
    Criminal Law—Plea of Guilty—Withdrawal of Plea—Substantiation—Appeal and Error—Record.
    The Court of Appeals resolves doubts regarding substantiation of a defendant’s reasons for withdrawal of a plea of guilty in favor of the defendant; however, the trial court’s findings will not be disturbed on appeal where the record leaves no room for doubt that the defendant’s reasons are lacking in substance.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law § 503 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John Smietanka, Prosecuting Attorney, and Chris W. Dunfield, Assistant Prosecuting Attorney, for the people.

      Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant.

      Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   After Remand

Per Curiam.

Defendant’s plea of guilty to armed robbery, MCL 750.529; MSA 28.797, was tendered and accepted on the day set for trial. Some four days later, the defendant wrote the trial judge, in part:

"Your hon: I am not trying to be funny or nothing but I would like to change my plea again. I want to plea not guilty. I don’t have a reason for this other than the fact that I want to just plea not guilty for a little while longer until I make up my mind what I want to do. Thank You!”

At sentencing, some nine days thereafter, defendant again requested to withdraw his plea and claimed he had pled guilty under duress. The request was denied, the trial court "finding that the reason is totally and completely frivolous, and the Court is satisfied of your guilt in this matter”. From his life sentence defendant appealed. This Court, at 66 Mich App 594; 239 NW2d 427 (1976), lv den 396 Mich 866 (1976), remanded for a hearing on the issue of coercion. Upon his review of the testimony presented at the evidentiary hearing, the trial court found:

"This court in these type of hearings must use its own experience as well as its knowledge of human beings in forming the necessary judgment to decide credibility. What the defendant has claimed as to the threats to force a plea of guilty must really rest on his own credibility versus the credibility of Messrs. Krause and Johnson. This court, even if there was a reasonable doubt or even a suspicion of doubt that these threats or promises of any kind were made to the defendant to get -him to plead guilty, would without hesitation grant his motion to withdraw the plea of guilty. This court has not even the shadow of a doubt that any officer or anyone else who appears in the record of this case or in this hearing used any promises or threats to secure a plea of guilty by the defendant.
"It finds without question that the defendant freely and voluntarily made his plea of guilty on his own volition knowing it might mean life imprisonment, although perhaps hoping it would not come to that.
"It finds, using the words of the Court of Appeals’ opinion, that defendant’s claims are merely allegations and there is no credible evidence of coercion.
"This court does not want to burden an already sizeable record in quoting from the transcript of the guilty plea taking procedure before Judge Hughes, though it certainly urges anyone reviewing this matter to read it. This court itself has had many hundreds of pleas taken before it through the years and seldom has it seen a more proper and clear plea taking than that of the defendant. The record leads to the conclusion that the defendant knowingly and voluntarily pled guilty being fully aware life imprisonment could well be, as in time it did become, the punishment.”

The court concluded its findings as follows:

"In conclusion in these findings, three questions face a conscientious judge in taking or reviewing a plea of guilty.
"One, does and did the defendant fully understand all his rights under the laws of this nation and state?
■ "Two, does and did the defendant admit in open court voluntarily enough facts to beyond a reasonable doubt and even in guilty plea cases positively prove his guilt of the crime to which he is pleading?
"Three, is and was the plea voluntarily and knowingly made without any promises, threats or coercion of any kind?
"This court from this hearing and the records in this case without any hesitation answers all three questions in the affirmative.
"Having found no coercion or any reason whatever to permit the defendant to withdraw his plea or to set the plea of guilty aside, this court is returning through its clerk to the Court of Appeals for any further processing of this case and, of course, its files and for any further action that that court deems necessary or advisable.” (Emphasis added.)

From the myriad of confusing decisions dealing with guilty plea withdrawals generally and the burden of proof on motions to withdraw specifically, we can posit the following as the rule: doubts regarding substantiation of the reasons for withdrawal are to be resolved in the defendant’s favor, People v Moomey, 53 Mich App 576; 220 NW2d 210 (1974), People v Malone, 33 Mich App 179; 190 NW2d 112 (1971); however, where, as in this case, the record leaves no room for doubt that the reasons are lacking in substance, a trial court finding to this effect will not be disturbed on appeal. See People v Pulliam, 10 Mich App 481; 157 NW2d 302 (1968), People v Morgan, 63 Mich App 686; 235 NW2d 154 (1975), People v Cantu, 20 Mich App 695; 174 NW2d 601 (1969), and People v Fenn, 23 Mich App 560; 179 NW2d 247 (1970).

Affirmed.