author: R. B. Burns, J.

text:
    CESNULIS v MONARCH PRODUCTS COMPANY
    Docket No. 77-4001.
    Submitted October 17, 1978, at Detroit.
    Decided November 28, 1978.
    Anthony V. Cesnulis petitioned for worker’s compensation benefits for an injury suffered while his employer, Monarch Products Company, was involved in bankruptcy proceedings and had permitted its worker’s compensation insurance to lapse. Plaintiff amended his petition to include the self-insurers’ security fund as a party defendant claiming he was entitled to benefits from the fund during the period in which his employer was under the jurisdiction of the bankruptcy court. The hearing referee awarded benefits from the fund upon finding Monarch was an insolvent, private, self-insured employer. The Workmen’s Compensation Appeal Board reversed, finding the employer was not self-insured. Plaintiff appeals. Held:

    A disabled employee may receive benefits from the self-insurers’ security fund where his employer is a private self-insured employer who becomes insolvent and is unable to continue payments. Self-insurer means an employer authorized to carry its own insurance risk. Monarch was not authorized to carry its own risk and was not a private self-insured employer who became insolvent; therefore, plaintiff was not entitled to benefits from the fund.
    Affirmed.
    1. Workmen’s Compensation — Self-Insurers—Self-Insurers’ Security Fund — Insolvency—Payment of Benefits — Statutes.
    A disabled employee may receive benefits from the self-insurers’ security fund where he is entitled to receive benefits from a private self-insured employer who becomes insolvent and is unable to continue payments; a self-insurer means an employer authorized to carry its own risk; a disabled employee is not entitled to receive benefits from the fiind where his employer is not authorized to carry its own risk, and therefore, is not a private self-insured employer under the self-insurers’ security fund provision of the worker’s compensation law (MCL 418.502, 418.537[1], 418.601[b]; MSA 17.237[502], 17.237[537][1], 17.237[601][b]).

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 650.

       81 Am Jur 2d, Workmen’s Compensation § 17.

      2. Workmen’s Compensation — Insured Employer — Self-Insured Employer — Insolvent Employer — Constitutional Law— Equal Protection — Statutes.
    A disabled employee of an employer who carries worker’s compensation insurance and who becomes insolvent is not deprived of equal protection of the law by the fact that the self-insurers’ security fund, as established by the Worker’s Disability Compensation Act, does not cover him, although his employer has allowed the insurance to lapse due to the insolvency but would have covered him if he had been disabled while employed by a self-insured employer who became insolvent (MCL 418.611; MSA 17.237[611]).
    3. Workmen’s Compensation — Self-Insurers—Self-Insurers’ Security Fund — Assessments—Statutes.
    Private self-insured employers are assessed and are required to pay into the self-insurers’ security fund, insured employers do not pay into this fund; therefore, it would be unfair to self-insurers to impose upon them the burden of compensating employees of employers who did not contribute to the fund (MCL 418.551[3]; MSA 17.237[551][3]).

      Rosenbaum, Bloom, Kaufman, Appel & Moses (by Lawrence A. Meyerson), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eileen Zielesch and Steve N. Yardley, Assistants Attorney General, for defendant.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   R. B. Burns, J.

Plaintiff petitioned for worker’s compensation benefits for an injury suffered during a period of time in which his employer permitted its worker’s compensation insurance coverage to lapse. The employer subsequently filed a petition in bankruptcy; a receiver was appointed, the employer was adjudicated bankrupt, the company reorganized, and control was eventually restored to the employer. Plaintiff amended his petition for worker’s compensation benefits to include the Self-Insurers’ Security Fund as a party defendant, claiming he was entitled to benefits from the fund during the period in which his employer was under the jurisdiction of the bankruptcy court. The hearing referee awarded benefits from the fund upon finding the employer was an insolvent, private, self-insured employer. MCL 418.502; MSA 17.237(502). The Workmen’s Compensation Appeal Board reversed, however, finding the employer was not self-insured. MCL 418.601(b); MSA 17.237(601)(b). We affirm.

A disabled employee may receive benefits from the fund where he is entitled to receive benefits from "a private self-insured employer who becomes involvent * * * and is unable to continue the payments.” MCL 418.537(1); MSA 17.237(537)(1). A literal interpretation of MCL 418.502; MSA 17.237(502) would support plaintiff’s argument that he is entitled to benefits, for that statute defines "an insolvent private self-insured employer” as one "who files for relief under the bankruptcy act or * * * against whom bankruptcy proceedings are filed or * * * for whom a receivor is appointed in a court of this state”. However, this statute must be read in conjunction with MCL 418.601; MSA 17.237(601), which provides in part that "[wjhenever used in this act: * * * (b) 'self-insurer’ means an employer authorized to carry its own risk”. Since plaintiff’s employer was not "authorized to carry its own risk”, it was not "a private self-insured employer who [became] insolvent”. Consequently, plaintiff is not entitled to benefits from the fund.

Plaintiff argues that this interpretation of the act deprives him of equal protection of the law, US Const, Am XIV, for employees of insolvent self-insurers are provided with greater protection than employees of insolvent, noncomplying employers. However, the Legislature could reasonably conclude that, while a fund was needed to back up self-insurers who might become insolvent, no such fund would be needed for employers who elect to insure, and are therefore backed by insurance companies or the accident fund. See MCL 418.611; MSA 17.237(611). The scheme contains penalties for noncompliance, designed to insure adequate financial backing. MCL 418.641, 418.645, 418.647; MSA 17.237(641), 17.237(645), 17.237(647). The classification bears a reasonable relation to the object of the legislation. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 671; 232 NW2d 636, 642 (1975). Moreover, it would be unfair to self-insurers to impose upon them the burden of compensating employees of employers who did not contribute to the fund. MCL 418.551(3); MSA 17.237(551X3).

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    ACKRON CONTRACTING COMPANY, INC. v OAKLAND COUNTY
    Docket No. 77-4155.
    Submitted October 17, 1978, at Detroit
    Decided November 28, 1978.
    Leave to appeal denied, 406 Mich 915.
    Plaintiff Ackron Contracting Co., Inc., brought an action against defendant Oakland County for money due on construction contracts. Oakland County denied liability and counterclaimed against Ackron. At the same time, Oakland County filed a motion to add Argonaut Insurance Company, the company which issued performance bonds on the contracts, as a defendant to the counterclaim. The plaintiff consented to this request and an order adding Argonaut to the cause of action was entered. The Oakland Circuit Court, William John Beer, J., then granted a default judgment of liability in favor of defendant Oakland County and against Argonaut Insurance Company on the counterclaim by Oakland County. Argonaut appeals. Held:

    The trial court did not abuse its discretion in entering the default judgment of liability due to Argonaut’s noncompliance with court-ordered discovery since the case had been pending 19 months, Argonaut had ignored two notices to produce documents, the trial was adjourned four times so discovery could be completed, Argonaut did not dispute the reasonableness of the court’s order of discovery nor heed Oakland County’s repeated warnings about the consequences of nonproduction, and Argonaut did not attempt to explain the delay until the day default judgment was entered.
    Affirmed.
    Beasley, P.J., dissented and would hold that Argonaut’s defaults in granting discovery should not become a penalty by which a harsh result is obtained, and therefore, he would set aside the default judgment conditioned upon payment of substantial costs, if the trial court has been satisfied that the discovery order has been complied with.

      References for Points in HeadNotes

       5 Am Jur 2d, Appeal and Error § 854.
    23 Depositions and Discovery §§ 146, 260. 47 Am Jur 2d, Judgments § 1158.

       23 Am Jur 2d, Depositions and Discovery §§ 146, 260.

      Opinion of the Court
    1. Appeal and Error — Judgment—Default Judgments — Abuse of Discretion — Counterclaims—Discovery—Noncompliance— Court Rules.
    A trial court did not abuse its discretion, in an action for money due on a construction contract, in entering a default judgment of liability in favor of a defendant and against a defendant which has been added as a party and against which a counterclaim has been filed by the original defendant where the default judgment was entered due to the noncompliance with court-ordered discovery, where the added defendant ignored two notices to produce documents and tangible things filed by the original defendant, where the trial was adjourned four times, pursuant to the parties’ stipulation, so that discovery could be completed, where the added defendant did not dispute the reasonableness of the court’s order of discovery or heed the original defendant’s repeated warnings about the consequences of non-production of the documents, where the added defendant did not attempt to explain the delay until the day default judgment was finally entered, and where the case had been pending for 19 months (GCR 1963, 313.2[2][c]).
    Dissent by Beasley, P.J.
    2. Discovery — Purpose—Just Results — Default in Discovery— Harsh Results — Penalties.

      Discovery is a preliminary process of recent origin designed to promote more just results in litigation; the fact that a party defaults in granting court ordered discovery should not become a penalty by which a harsh result is obtained.

      Dickinson, Wright, McKean, Cudlip & Moon (by John K. Renke, II), for defendant-appellee Oakland County.

      Keywell & Rosenfeld (by Sidney L. Frank), for defendant-appellant Argonaut Insurance Company.

      Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   R. B. Burns, J.

Counter-defendant appeals from the entry of a default judgment in favor of defendant. Default judgment was entered due to counter-defendant’s noncompliance with court-ordered discovery. GCR 1963, 313.2(2)(c).

Our examination of the record convinces us that the trial court did not abuse its discretion in entering default judgment. Two notices to produce documents and tangible things were filed by defendant. Counter-defendant ignored these notices. The trial was adjourned four times, pursuant to the parties’ stipulation, so that discovery could be completed. Never were the requested documents produced. Never did counter-defendant dispute the reasonableness of the court’s order of discovery. Counter-defendant did not heed defendant’s repeated warnings about the consequences of non-production of the documents. Not until the day default judgment was finally entered was there an attempt to explain the delay. The case had already been pending for 19 months. There was no abuse of discretion in the entry of the default judgment. First Bank of Cadillac v Benson, 81 Mich App 550; 265 NW2d 413 (1978), Humphrey v Adams, 69 Mich App 577; 245 NW2d 167 (1976).

Affirmed.

J. H. Vander Wal, J., concurred.

Beasley, P.J.

(dissenting). I respectfully dissent. I would set aside the default judgment conditioned upon payment of substantial costs. Discovery is, after all, a mere preliminary process of recent origin designed to promote more just results in litigation. While I do not condone appellant’s defaults in granting discovery, such fact should not become a penalty by which a harsh result is obtained.

       It is represented appellant has complied with the discovery order; this dissent assumes satisfying the trial court of such compliance.


author: D. F. Walsh, J.

text:
    PEOPLE v LaROSE
    Docket No. 77-4294.
    Submitted June 21, 1978, at Lansing.
    Decided November 28, 1978.
    Leave to appeal applied for.
    Gary M. LaRose presented an insufficient funds check at a bank and subsequently was convicted, on his plea of guilty, of obtaining money by false pretenses with intent to defraud, Jackson Circuit Court, James G. Fleming, J. Defendant appeals, alleging that the requisite factual basis for his plea was not established. Held:

    The defendant should have been prosecuted under the statute which prohibits delivery of an insufficient funds check rather than the false pretenses statute. The insufficient funds check statute is a more specific statute and is therefore an exception to the more general false pretenses statute. The defendant’s only false pretense was his false representation that he had funds on deposit from which the check would be paid upon presentation.
    Reversed.
    1. Criminal Law — Prosecutors—Discretion—Instituting Charges.
    A prosecuting attorney has broad discretion in determining under which of two possible applicable statutes a prosecution shall be instituted; however, that discretion is not unlimited.
    2. Statutes — General Statutes — Specific Statutes — Conflicts.
    A statute specific in language and enacted subsequent to a general statute covering the same subject matter constitutes an exception to the general statute if there appears to be a conflict between the two statutes.
    3. False Pretenses — Insufficient Funds Checks — Criminal Law— Statutes.
    Presentation of an insufficient funds check may, if accompanied by additional false representation, justify conviction of obtaining money under false pretenses with intent to defraud; however, where a defendant’s only false pretense was his false representation that he had funds on deposit to cover a check that he was presenting he should be charged under the specific statute which fits the particular facts, delivery of an insufficient funds check with intent to defraud (MCL 750.131, 750.218; MSA 28.326, 28.415).

      References for Points in Headnotes

       41 Am Jur 2d, Indictments and Informations §§ 86 et seq., 226. 63 Am Jur 2d, Prosecuting Attorneys §§ 25, 26.

       73 Am Jur 2d, Statutes §§ 415, 416.

       32 Am Jur 2d, False Pretenses §§ 73-76. 37 Am Jur 2d, Fraud and Deceit §§ 142, 446.

       73 Am Jur 2d, Statutes §§ 313, 316.

      4. False Pretenses — Insufficient Funds Checks — Criminal Law— Statutes — Intent of Legislature.
    It was clearly the intent of the Legislature, in enacting the statute prohibiting delivery of an insufficient funds check with intent to defraud, to create an exception to the statute prohibiting obtaining money by false pretenses, and to provide for a lesser penalty for the delivery of an insufficient funds check (MCL 750.131, 750.218; MSA 28.326, 28.415).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.
    P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

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

   D. F. Walsh, J.

Defendant appeals his plea-based conviction of obtaining money (in an amount over $100) by false pretenses with intent to defraud. MCL 750.218; MSA 28.415. Defendant was sentenced to a prison term of 2-1/2 to 10 years. He was originally charged with one count of obtaining money by false pretenses and one count of delivering an insufficient funds check with intent to defraud. MCL 750.131; MSA 28.326. Pursuant to a plea bargain in which other outstanding charges were dropped and charges for other alleged crimes were not brought, the second count was dropped and defendant pled guilty to count one.

The offense to which defendant pled guilty is defined in MCL 750.218; MSA 28.415:

"Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property than was bargained for, if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00.”

The offense described in count two of the information filed against defendant is defined in MCL 750.131; MSA 28.326:

"Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft or order for the payment of money, to apply on account or otherwise, upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in or credit with such bank or other depository, for the payment of such check, draft, or order, in full, upon its presentation, or any person who, with the intent to defraud, shall make, draw, utter or deliver any check, draft or order for the payment of money to apply on account or otherwise, upon any bank or other depository and who shall not have sufficient funds for the payment for same when presentation for payment is made to the drawee, except where such lack of funds is due to garnishment, attachment, levy, or other lawful cause, and such fact was not known to the person who made, drew, uttered or delivered the instrument at the time of so doing, shall, if the amount payable in the check exceeds $50.00, be guilty of felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00. If the amount payable in the check is $50.00 or less, such person shall for the first offense be guilty of a misdemeanor; and for the second offense, the same being charged as a second offense, shall be guilty of a misdemeanor punishable by imprisonment in the county jail not more than 6 months or by a fine of not more than $250.00; and for a third and subsequent offense, the same being charged as a third or subsequent offense, shall be guilty of a felony, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00.”

The relevant facts are not disputed. The charges arose out of defendant’s presentation of an insufficient funds check to the National Bank of Jackson in the amount of $150. The check was drawn on the Onsted Bank. At the plea-taking proceedings defendant testified that, when he presented the check to the National Bank of Jackson, he knew that the Onsted account did not have sufficient funds to cover it and that he intended to defraud the National Bank of Jackson.

On appeal defendant challenges the adequacy of the factual basis supporting his conviction of obtaining money by false pretenses. We agree that the requisite factual basis was not established.

Prosecuting attorneys have broad discretion in determining under which of two possible applicable statutes a prosecution shall be instituted. People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942), People v Heber, 42 Mich App 582; 202 NW2d 571 (1972). Prosecutorial discretion is not, however, unlimited. People v Birmingham, 13 Mich App 402, 406-407; 164 NW2d 561 (1968).

It is necessary to distinguish between cases where the two possible applicable statutes prohibit the same conduct and cases where the statutory crimes are distinct. In People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975), aff'd 402 Mich 460; 265 NW2d 1 (1978), for example, the defendants argued that the prosecutor had abused his discretion in charging them with assault with intent to rob while unarmed, MCL 750.88; MSA 28.283, instead of with unarmed robbery, MCL 750.530; MSA 28.798. The defendants contended that it was a denial of equal protection to have two statutes with different penalties prohibiting the same conduct. Because the assault charge required an assault, whereas the robbery charge required either an assault or force and violence, the two statutes prohibited different conduct. The prosecutor, therefore, had discretion to charge under either statute. Also see People v Graves, 31 Mich App 635; 188 NW2d 87 (1971), where this Court noted that a conviction of larceny in a building, MCL 750.360; MSA 28.592, in contrast to simple larceny, MCL 750.356; MSA 28.588, requires proof of the additional aggravation of stealing from a building. Since the statutes are distinct, the prosecutor had not abused his discretion in charging the greater offense. And in People v Shaw, 27 Mich App 325; 183 NW2d 390 (1970), lv den 385 Mich 760 (1971), this Court found no error in charging the defendant with forgery, MCL 750.248; MSA 28.445, instead of with the misdemeanor of unauthorized use of a credit card, MCL 750.219a; MSA 28.416(1). While recognizing that general statutes are controlled by specific statutes, the Court emphasized that the specific credit card offense did not necessarily involve the same elements as the more general forgery statute.

In contrast to the foregoing cases, in the instant case the only "false pretense” shown is the presentation of an insufficient funds check. People v Vida, 2 Mich App 409; 140 NW2d 559 (1966), aff'd 381 Mich 595; 166 NW2d 465 (1969), and People v Niver, 7 Mich App 652; 152 NW2d 714 (1967), are readily distinguishable due to the proof of false representation, in addition to presentation of an insufficient funds check, by the defendants in those cases. The instant defendant’s only false pretense was his "false representation, either express or implied, incident to the giving of a check, that the maker then has funds on deposit from which the bank will pay the check on presentation”. People v Jacobson, 248 Mich 639, 642; 227 NW 781 (1929).

It is a basic rule of statutory construction that a statute specific in language and enacted subsequent to a general statute covering the same subject matter constitutes an exception to the general statute if there appears to be a conflict between the two statutes. State Highway Comm’r v Detroit City Controller, 331 Mich 337, 358; 49 NW2d 318 (1951), People v McFadden, 73 Mich App 232; 251 NW2d 297 (1977), People v Bachman, 50 Mich App 682; 213 NW2d 800 (1973), lv den 392 Mich 776 (1974), People v Rodgers, 18 Mich App 37; 170 NW2d 493 (1969).

Although presentation of an insufficient funds check may, if accompanied by additional false representation, justify conviction under the false pretenses statute (see People v Vida, supra), we hold that the instant facts preclude prosecution under that statute. It was clearly the Legislature’s intent, in enacting the insufficient funds statute, to carve out an exception to the false pretenses statute and to provide for a lesser penalty for the particular type of false pretense involved in presentation of an insufficient funds check. See State v Marshall, 202 Iowa 954; 211 NW 252 (1926), LaFave and Scott, Criminal Law, § 92, pp 678-681. The crime described in MCL 750.131; MSA 28.326 carries a substantially lower maximum penalty than that set forth in MCL 750.218; MSA 28.415. Compare People v Heber, supra. The prosecutor was bound to charge defendant under the statute which fit the particular facts and not under the more general statute. People v Shears, 84 Mich App 175; 269 NW2d 519 (1978).

Reversed.


author: J. H. Gillis, P.J. D. E. Holbrook, J. R. M. Maher, J.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN v BOWER
    Docket No. 77-5092.
    Submitted October 3, 1978, at Escanaba.
    Decided November 28, 1978.
    Leave to appeal applied for.
    Defendant Lenord Bower sustained personal injuries when he was pinned between a barn door opening and an uninsured truck. Mr. and Mrs. Bower filed a lawsuit against the owner and driver of the truck which resulted in a verdict of no cause of action. Mr. Bower received personal income protection benefits and medical expense benefits under the no-fault provisions of his contract of insurance with plaintiff, Farm Bureau Insurance Company of Michigan. In addition, Mr. and Mrs. Bower filed a demand for arbitration under the uninsured motorist provisions of the contract. Plaintiff filed an action against Mr. and Mrs. Bower to declare the rights of the parties under the contract. The Delta Circuit Court, Clair J. Hoehn, J., declared that: (a) the jury verdict against defendants was res judicata as to the insurer’s liability to its insured under the uninsured motorist provisions; (b) if the Bowers are entitled to arbitration, plaintiff can offset payments made under the no-fault provisions against like benefit payments to its insured under the uninsured motorist provisions; (c) the uninsured motorist coverages of the policy may be stacked; and (d) plaintiff was not obligated to arbitrate the claim. Defendants appeal and plaintiff cross-appeals. Held:

    1. The doctrine of res judicata does not bar a demand for arbitration under the uninsured motorist provisions of an insurance contract where a prior lawsuit by the insured against the uninsured motorist resulted in a verdict of no cause of action.
    2. Uninsured motorist coverages of an insurance policy may be stacked to increase the insurer’s liability.
    3. The reduction of an insurer’s liability under uninsured motorist coverage by the amount of whatever payments the insurer makes under personal protection coverage is proper where a provision of an automobile insurance policy clearly authorizes such a reduction.

      References for Points in Headnotes

       7 Am Jur 2d, Automobile Insurance § 135.
    Rights and liabilities under "uninsured motorists” coverage. 79 ALR2d 1252.

      Reversed and remanded.
    J. H. Gillis, P. J., wrote the opinion embodying the holding of the panel.
    D. E. Holbrook, J., concurred in holdings 1 and 2 but would hold that the insurer may not offset payments to the insured under the no-fault provisions against payments made under the uninsured motorist provisions.
    R. M. Maher, J., concurred in holdings 1 and 3 but would hold that the uninsured motorist coverages in the policy may not be stacked to increase the insurer’s liability.
    Opinion op J. H. Gillis, P.J.
    1. Arbitration and Award — Insurance—Automobiles—Uninsured Motorists — Res Judicata.
    The doctrine of res judicata does not bar a demand for arbitration under the uninsured motorist provisions of an insurance contract where a prior lawsuit by the insured against the uninsured motorist resulted in a verdict of no cause of action.
    2. Insurance — Automobiles—Uninsured Motorists — Stacking.
    Uninsured motorists coverages of an insurance policy may be stacked to increase the insurer’s liability.
    3. Automobiles — Insurance—Uninsured Motorists — Set-Off Provision.
    The reduction of an insurer’s liability under uninsured motorist coverage by the amount of whatever payments the insurer makes under personal protection coverage is proper where a provision of an automobile insurance policy clearly authorizes such a reduction.
    Opinion of D. E. Holbrook, J.
    4. Automobiles — Insurance—Uninsured Motorists — Set-Off Provision.

      An automobile insurance policy provision which authorizes a reduction in uninsured motorist coverage beneñts by the amount paid by the insurer under personal protection coverage is inequitable and unjust and should not be enforced where the insured believed that he was contracting for full coverage of both personal protection and uninsured motorists beneñts and where a permissible inference from the deñnitions in the policy

      is that the two types of coverage are coextensive each with the other.

    Opinion of R. M. Maher, J.
    5. Insurance — Automobiles—Uninsured Motorists — Stacking.

      Uninsured motorist coverages of an insurance policy may not be stacked to increase the insurer’s liability.

      Butch, Quinn, Rosemary & Jardis, P.C., for plaintiff.

      Hansley, Nieman, Peterson, Beauchamp, Stupak & Bergman, P.C., for defendants.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   J. H. Gillis, P.J.

This case involves a dispute over an insurer’s liability under the uninsured motorist provisions of an insurance contract.

On February 4, 1974, defendant Lenord Bower sustained personal injuries when he was pinned between the loading ramp of a truck and a barn door opening as the truck was being backed into the barn to pick up cattle. The vehicle was not insured. A suit against the driver and owner of the truck resulted in a jury verdict of no cause of action. No appeal was taken from the judgment.

Defendant Lenord Bower filed for and received personal income protection benefits and medical expense benefits under the no-fault provisions of his contract of insurance with plaintiff. Defendants Lenord and Katherine Bower also filed a demand for arbitration under the uninsured motorist provisions of the insurance contract.

Plaintiff thereupon filed an action in the Delta County Circuit Court for a judgment declaring the rights of the parties under the contract. The court entered its order on December 14,1977, declaring:

(1) The jury verdict is res judicata as to the insurer’s liability to its insured under the uninsured motorist provisions.

(2) If defendants are entitled to arbitration, plaintiff can offset payments made under the no-fault provisions against like benefit payments to its insured under the uninsured motorist provisions.

(3) The uninsured motorist coverages of the policy may be stacked.

The court thereupon found that plaintiff was not under an obligation to arbitrate the claim of its insured. Defendants appeal and plaintiff cross-appeals.

I

The judgment of no cause of action in the Bowers’ case against the uninsured motorist is not a bar to a demand for arbitration under the insurance contract with Farm Bureau. This issue was addressed in Auto-Owners Ins Co v Higby, 69 Mich App 485, 488; 245 NW2d 102 (1976), wherein it was stated:

"To begin with, we find the doctrine of res judicata inapplicable because two lawsuits are not involved here. We are concerned here with the effect of a lawsuit on contractual rights, rather than the effect of one lawsuit on another lawsuit.”

The Court in Auto-Owners went on to discuss whether the insureds had waived their contractual right to arbitration and concluded that under the facts of that case they had not. No allegation has been made in the instant case that defendants waived their right to arbitration so we need not address that issue here. Rather, on the authority of Auto-Owners, supra, we conclude that the trial court erred in holding that the issue of liability is res judicata.

Moreover, examination of the language of the contract makes it clear that the judicial decision is not conclusive of the issue of liability. Part IV of the contract of insurance provides, in part, as follows:

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this Coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
"No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.” (Emphasis supplied.)

The first paragraph states that the issue of liability is to be determined, absent agreement, by arbitration. The second paragraph indicates that a judgment against an uninsured motorist will be conclusive of the issues of liability and damages if written consent to the action is given by the insurer. This paragraph expressly applies only when a judgment is rendered against the uninsured motorist. If the insurer had wished to make a judgment against the insured conclusive of the issues it would have been simple to insert appropriate language. In construing the language in an insurance policy prepared by the insurer, the policy should be construed most strongly against the insurer and liberally in favor of the insured. Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), The Travelers Indemnity Co v Duffin, 28 Mich App 142; 184 NW2d 229 (1970), rev’d on other grounds, 384 Mich 812; 184 NW2d 739 (1971).

As neither principles of res judicata nor the terms of the insurance policy itself made the judgment of no cause of action conclusive of the issues of liability and damages the trial court erred in holding that the insurer was not obligated to arbitrate the claim of its insured.

II

Having determined the matter must go to arbitration, we next proceed to review the trial court’s determination of the "offset” and "stacking” issues.

The trial court correctly determined that the uninsured motorist coverage could be stacked. Detroit Automobile Inter-Ins Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978), Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978).

However, the trial court erred in holding that the insurer could only set off payments under the no-fault provisions against similar benefits under the uninsured motorist provisions. The language of § 4, 1| G, of the no-fault provisions of the policy provides:

"Any amount payable under the Family Protection [uninsured motorist] Coverage of this policy shall be reduced by the amount of any personal protection benefits paid or payable under this or any other automobile insurance policy because of bodily injury to an eligible injured person.”

The language of this provision is nearly identical to that construed by the Court in American Fidelity Fire Ins Co v Williams, 80 Mich App 125; 263 NW2d 311 (1977), and Schigur v West Bend Mutual Ins Co, 80 Mich App 640; 264 NW2d 83 (1978). In those cases the Court held that the above provision clearly and unambiguously authorized the insurer to offset, against its liability under the uninsured motorist coverage, any personal protection benefits it paid. We see no basis for concluding otherwise in the instant case.

Reversed and remanded for entry of an order consistent with this opinion. No costs, neither plaintiff nor defendants having prevailed in full.

D. E. Holbrook, J.

(concurring in part, dissenting in part). This writer concurs with my brother Judge Gillis in his ruling that the jury verdict is not res judicata of the insurer’s liability to its insured under the uninsured motorist provisions and his ruling that uninsured motorist coverages of the policy may be stacked. However, as to the second issue in which the majority rule that plaintiff can offset payments under the no-fault provisions against payments to the insured under the uninsured motorist provisions, this writer is constrained to disagree.

The majority cite the cases of American Fidelity

Fire Ins Co v Williams, 80 Mich App 125; 263 NW2d 311 (1977), lv gtd, 402 Mich 950s (1978), and Schigur v West Bend Mutual Ins Co, 80 Mich App 640; 264 NW2d 83 (1978), lv gtd, 402 Mich 950q (1978), in support of its position. After reading both of these cases, together with the dissenting opinions of my Brother Judge N. J. Kaufman, it appears that the dissents in the two cases properly consider and rule on this issue.

This writer, therefore, adopts the dissenting opinions of Judge N. J. Kaufman in each of these cited cases in ruling on this issue. This writer believes that only through this interpretation of the no-fault contracts can an insured be made whole, thereby satisfying the purpose of the no-fault statute.

R. M. Maher, J.

(concurring in part, dissenting in part). I concur in the result reached on issue I and I agree with the majority that plaintiff is entitled to offset of personal protection benefits. However, I dissent from the holding that the uninsured motorist coverages in the policy may be stacked, for the reasons set forth in Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977).


author: Beasley, P.J.

text:
    GREEN v CITY OF DETROIT
    Docket No. 78-166.
    Submitted October 16, 1978, at Detroit.
    Decided November 28, 1978.
    Loraine Green brought an action in Wayne Circuit Court against the City of Detroit for damages resulting from a fall on an allegedly defective city sidewalk. Myron H. Wahls, J., granted accelerated judgment to defendant based on the two-year statute of limitations applicable to the defective highway statute. The two-year statute had run by the time plaintiff filed her action in circuit court. Plaintiff claims that she followed the claims procedure delineated in a city ordinance and that this served to stop the statute of limitations from running. Held:

    1. The City of Detroit is not estopped from applying the statute of limitations in a damage action against the city where the city’s representatives neither deceived nor misled plaintiff into believing that her claim would be settled without suit.
    2. The statute of limitations bars an action for damages against a municipal corporation even though a city ordinance provides that such actions "shall be brought only in the court provided by law” because actions provided for in the ordinance are governed by the very same statute of limitations as applies where an action is brought without reference to the ordinance.
    Affirmed.
    1. Limitation of Actions — Municipal Corporations — Torts—Deception — Estoppel.
    A municipal corporation will not be estopped from asserting the statute of limitations unless it was responsible for deceiving a plaintiff and inducing him to postpone his action for damages .upon some reasonably well grounded belief that his claim would be settled without suit.
    References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions §§ 116, 431 et seq.

    Limitation period as affected by requirement of notice or presentation of claim against governmental body. 3 ALR2d 711.

       51 Am Jur 2d, Limitation of Actions § 353.

      2. Limitation of Actions — Municipal Corporations — Torts—Deception-Estoppel.
    There is no basis for application of the doctrine of estoppel so as to halt the running of the statute of limitations against a city for a claim for damages against the city where the city’s representatives neither deceived nor misled plaintiff into believing that her claim would be settled.
    3. Municipal Corporations — Torts—Limitation of Actions — Ordinances — Courts.
    An action for damages against a municipal corporation under the defective highways statute is barred by the two-year statute of limitations unless an action is commenced in circuit court; following the claims procedure delineated in a city ordinance does not serve to stop the statute of limitations from running where the very same statute of limitations applies both to actions described in the ordinance ("shall be brought only in the court provided by law”) and to actions brought without reference to the ordinance.

      Eugene J. Stroia and W. Dow Heimbrook, for plaintiff.

      Roger E. Craig, Corporation Counsel, and Mercedes Mueckenheim, Assistant Corporation Counsel, for defendant.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Beasley, P.J.

Plaintiff appeals as of right from the granting of accelerated judgment to the defendant based on the two-year statute of limitations applicable to the "defective highways” statute.

Plaintiff alleges that on July 29, 1974, she suffered injuries by falling on a defective sidewalk in the City of Detroit. However, she did not file suit for damages in the circuit court until November 14, 1977. Thus, on its face, the two-year statute of limitations has run and bars plaintiff’s action.

In trying to avoid this result, plaintiff claims that she followed the claims procedure delineated in defendant’s ordinance and that this served to stop the statute of limitations from running.

In 1974, defendant city amended its ordinance entitled "Processing of Claims Against the City” to add six sections. The amendment is described as "to determine the extent and manner of processing and settling claims against the City”. Among other things, the ordinance now provides that all claims "shall be first submitted to and reviewed by the Law Department, that the Law Department [of the city] shall promptly notify the claimant of its decision, and if the claim is denied, of claimant’s right to appeal such decision to the Auditor General [of the city]”, that the claimant has 20 days to make such appeal to the auditor general, and that the auditor general shall hold a hearing within 45 days, after having given at least 10 days notice to claimant. Within 15 days after completion of the hearing, the auditor general is directed to make a determination regarding the disputed claim which determination is final, subject to any appeal which "shall be brought only in the court provided by law”. Settlements may be made only with the consent of the city council. Last, the ordinance provides:

"Sec. 2-2-15. All claims of whatever kind against the City must be filed in accordance with the general law of the State applicable to the filing of claims against governmental agencies; otherwise no claim for money or damages may be brought against the City.”

In this case, plaintiff made written claim against the city on November 7, 1974, of the July 29, 1974, fall and was assigned claim number 28235. On December 16, 1975, plaintiff was informed her claim had been denied, and that she had a right to appeal to the auditor general. She claims that on December 30, 1975, she appealed to the auditor general; defendant city denies ever receiving such an appeal. Defendant city alleges that twice in 1976 plaintiffs attorneys wrote regarding "documentation of the damage claim”. Defendant city says that eventually the subject of the appeal to the auditor general came up and that they gave plaintiff "the advantage of the doubt” and sent the appeal to the auditor general on May 10, 1977. On July 21, 1977, the auditor general held a hearing and, on September 26, 1977, the auditor general advised plaintiff that the claim was denied.

As indicated, plaintiff then filed suit for damages on November 14, 1977, but was met by defendant’s motion for accelerated judgment on the ground that the two year statute of limitations had run, which motion was granted.

We do not interpret the cited ordinance as requiring resort to and compliance with it by a claimant as a condition precedent to bringing suit in the circuit court.

In some respects, the ordinance prescribes an internal procedure for processing and handling of claims against the city by the city.

We note that MCL 691.1404; MSA 3.996(104) requires verified notice to the governmental agency of the occurrence of the injury and the defect. We do not interpret the ordinance as freeing a claimant of his duty under that statute.

The type of issue here raised by plaintiff-appellant is not new in Michigan. In Klass v Detroit, which was a 1901 case, plaintiff claimed to have suffered injury on December 31, 1895, as a result of failure to repair a street, made claim to the common council on January 7, 1896, and started suit on March 23, 1897. The then statute required notice of injury within three months and commencement of suit within one year. Hearings had been held before defendant’s committee on claims and accounts as late as March 1897. When the city attorney advised counsel for plaintiff in March, 1897, that the claim was being denied, plaintiff promptly started suit within about ten days. The issue was whether the circumstances of the case estopped defendant city from availing itself of a defense that the statute of limitations had run. The court said not, holding that defendant will not be precluded from asserting the statute of limitations unless defendant was responsible for deceiving the plaintiff and inducing him "to postpone action upon some reasonably well grounded belief’ that his claim would be settled without suit.

In Renackowsky v Board of Water Commissioners of Detroit, plaintiff alleged injury by defendant’s negligence in 1893, but did not start suit until 1897. The trial court dismissed plaintiffs action on the ground that the statute of limitations had run. In reversing, the Supreme Court noted defendant had made payments to plaintiff in response to his claim and interpreted defendant’s conduct to constitute a promise to pay. The Supreme Court concluded that defendant, by its course of conduct, led plaintiff to believe a lawsuit to enforce his claim was unnecessary and, therefore, defendant was estopped from asserting the statute of limitations as a bar to plaintiff’s action.

More recently, a similar issue was raised in Yarger v Hastings. Plaintiff claimed she was injured on April 29, 1961, in a fall in a hole in the sidewalk more than two inches deep. On May 12, 1961, plaintiff made claim to defendant city for compensation for her injury. Thereafter, sporadic communications passed back and forth between plaintiff’s counsel and defendant’s insurance carrier until August, 1963, when the insurance carrier denied the claim on the ground that the statute of limitations had run. When plaintiff started suit, defendant sought to avail itself of the statute of limitations, and plaintiff responded by claiming defendant’s conduct estopped application of the statute of limitations. The Supreme Court affirmed the trial court’s ruling that plaintiff’s claim was barred because the statute of limitations had run. In declining to find estoppel, the Supreme Court held that the limitation "was not of the remedy but of the right under the very statute creating that right” and that a waiver or estoppel cannot be worked against this kind of limitation by a defendant’s misrepresentations.

Hughes v Detroit was another injury from defective sidewalk case. Plaintiff claimed the injury was sustained on October 14, 1947, but did not start suit until May 5, 1950. At that time, the statute of limitations was two years. The Supreme Court affirmed dismissal of the suit by the trial court on the basis of the statute of limitations, saying that defendant city made no false promises of payment nor inducements to delay.

Review of these cases poses the issue here. Were the circumstances of this case such as to lead plaintiff to believe that defendant would not assert the statute of limitations in defense?

As a general proposition, courts incline to find an estoppel from asserting the statute of limitations where there is misleading conduct. However, the cited Michigan cases indicate a disinclination to apply estoppel to running of the statute of limitations. In this case, there is no basis for finding a promise not to assert the statute of limitations. Here plaintiff argues that the language of the ordinance, the fact that when defendant’s law department advised plaintiff that her claim was denied, they also advised her of her right to appeal to the auditor general and the fact that the hearing before the auditor general commenced on July 21, 1977, after the statute of limitations had run under defendant’s theory of its applicability, should give rise to estopping defendant city from availing itself of the statute of limitations.

In the within case, when, on December 16, 1975, defendant city’s law department advised plaintiff that her claim was denied, the statute of limitations had not run and there was ample time for plaintiff to file suit in the circuit court.

Plaintiff had a choice. Either plaintiff could file suit or plaintiff could, under the ordinance, appeal the denial recommended by the law department to the auditor general for a hearing and determination. Plaintiff chose the latter.

The record does not indicate that the city’s representatives deceived or misled plaintiff. If plaintiff misinterpreted the effect of the ordinance and assumed the statute of limitations was stopped by resort to appeal to the auditor general of the city, that error cannot be attributed to or laid at the doorstep of the city’s representatives.

Fair reading of the cases we have cited, considered in conjunction with what happened here, does not indicate a basis for application of the doctrine of estoppel so as to halt the running of the statute of limitations. It was not error for the trial court to conclude that plaintiff’s suit for damages was barred by expiration of the statute of limitations, at least insofar as we view it as an original action.

In her complaint, plaintiff alleged she was bringing action pursuant to § 2-2-12(h) of defendant’s ordinance. As indicated, the language of that section of the ordinance is "shall be brought only in the court provided by law”.

Since claims such as plaintiff’s would fall under the governmental immunity rule, but for the exception contained in the defective highways statute, we interpret the ordinance to refer to the "defective highways” statutes.

Thus, an appeal, as provided for in the ordinance, is governed by the very same statute of limitations as applies where a damage suit is brought without reference to the ordinance.

Consequently, we conclude that, regardless of which theory we attribute to plaintiff, her claim is barred by the statute of limitations.

Affirmed

       MCL 691.1411; MSA 3.996(111).

       Contrary to MCL 691.1402; MSA 3.996(102).

       City of Detroit Ordinance 920-G provides:
      "Sec. 2-2-10. All claims of whatever kind against the City, excluding claims by City Employees arising out of the employment relationship, claims against the Department of Water and Sewerage, and undisputed claims for services, labor, and materials furnished to City Departments shall be first submitted to and reviewed by the Law Department.”

       The amendment became effective July 1, 1974, adding new sections known as 2-2-10, 2-2-11, 2-2-12, 2-2-13, 2-2-14 and 2-2-15.

       129 Mich 35; 88 NW 204 (1901).

        Klass v Detroit, supra, p 40.

       122 Mich 613; 81 NW 581 (1900).

       375 Mich 413; 134 NW2d 726 (1965).

        Yarger v Hastings, supra, p 419.

       336 Mich 457; 58 NW2d 144 (1953).

       Dawson, Estoppel and Statutes of Limitation, 34 Mich L Rev 1 (1935).

       City of Detroit Ordinance 920-G, § 2-2-12(h) provides:
      "(h) The Auditor General, within 15 days after the completion of such hearing, shall make a determination on such disputed claim; the determination by the Auditor General shall be final; any appeals from such determination shall be brought only in the court provided by law:”


author: Per Curiam.

text:
    PEOPLE v BRAGER
    Docket No. 29113.
    Submitted February 16, 1978, at Detroit.
    Decided November 28, 1978.
    Charles Brager was convicted of breaking and entering an occupied dwelling with the intent to commit a larceny therein, Recorder’s Court of Detroit, Joseph E. Maher, J. The defendant appeals, alleging that the trial court erred in refusing to instruct the jury on the charge of breaking and entering an unoccupied dwelling with intent to commit larceny therein and on the further charge of larceny from a building. Held:

    1. The failure of the trial court to give the requested instruction on breaking and entering an unoccupied dwelling was proper since the evidence presented at trial indicated that an occupied dwelling was involved and, under the facts of the case, breaking and entering an unoccupied dwelling was not a "cognate” lesser offense of the crime charged.
    2. There was no reason to instruct the jury on the offense of larceny in a building since it is neither a necessarily included offense nor a "cognate” lesser offense of the crime charged.
    Affirmed.
    1. Criminal Law — Lessee Included Offenses — Instructions to Jury.
    The duty of a trial judge to instruct on lesser included offenses is determined by the evidence; if evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction on the lesser included offense is reversible error.
    2. Criminal Law — Lesser Included Offenses — Necessarily Included Offenses — Evidence—Breaking and Entering.
    Evidence which supports a greater offense will always support a lesser offense where the lesser offense is one that is necessarily included within the greater; therefore, in order for the offense of breaking and entering an unoccupied dwelling to be a lesser offense necessarily included within the offense of breaking and entering an occupied dwelling, the evidence adduced at trial must support a conviction for the former offense.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 876.

       75 Am Jur 2d, Trial § 422.

       13 Am Jur 2d, Burglary §§ 3-6, 8, 10, 27.

      3. Criminal Law — Breaking and Entering — Occupied Dwelling— Crime Against Habitation — Crime Against Property.
    The crime of breaking and entering an occupied dwelling and the crime of breaking and entering an unoccupied dwelling are of separate and independent origin; the former is an offense against habitation, the latter is an offense against property.
    4. Criminal Law — Breaking and Entering — Occupied Dwelling— Unoccupied Dwelling.
    The statutory offenses of breaking and entering an occupied dwelling and breaking and entering an unoccupied dwelling are constructed so as to be mutually exclusive, because each requires proof of an element which would necessarily preclude conviction under the other (MCL 750.110; MSA 28.305).
    5. Criminal Law — Breaking and Entering — Occupied Dwelling— Unoccupied Dwelling — Lesser Included Offenses.
    Breaking and entering an unoccupied dwelling is not a lesser included offense of a charge of breaking and entering an occupied dwelling where the facts indicate that the dwelling in question was occupied.
    6. Criminal Law — Breaking and Entering — Occupied Dwelling— Unoccupied Dwelling — Cognate Lesser Offense.
    Breaking and entering an unoccupied dwelling is not a "cognate” lesser offense of the crime of breaking and entering an occupied dwelling where the evidence adduced at trial will not support a conviction of the lesser offense.
    7. Larceny — Larceny in a Building — Necessarily Included Offense — Cognate Lesser Offense — Breaking and Entering.
    Larceny in a building is neither a necessarily included offense nor a "cognate” lesser offense of breaking and entering an occupied dwelling with intent to commit larceny therein.

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

      Alvin C. Sallen, for defendant on appeal.
    Before: D. E. Holbrook, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Defendant was charged in a one-count information with the offense of breaking and entering an occupied dwelling with the intent to commit a larceny therein, contrary to MCL 750.110; MSA 28.305.

Carlton Clayburn testified that he resides at 17621 Meyers, Detroit, Michigan, and that on November 6, 1975, he left for work after having secured his home. He further testified that he identified certain of his personal property at the 12th Police Precinct subsequent to the breaking and entering and stated the said property was in his dwelling at the time he left for work.

There was evidence that a police officer viewed the defendant entering the rear door of complainant’s home and later placing various objects on the rear seat of a car parked in the alley. Defendant was arrested after a high-speed automobile chase.

Defendant was convicted of the offense charged in a jury trial and was sentenced to a term of from 10 to 15 years in prison and now appeals as of right.

The trial court charged the jury on the charged offense and also on the charge of entering without breaking an occupied dwelling with the intent to commit larceny therein. The defendant claims error in the trial court’s refusal to instruct the jury on the charge of breaking and entering an unoccupied dwelling (building) with the intent to commit larceny therein, and the further charge of larceny from a building.

We first deal with the failure of the trial court to instruct on the offense of breaking and entering of an unoccupied dwelling (building) with intent to commit a larceny therein.

In People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), our Supreme Court defined the term "necessarily included offenses” as follows:

"The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36, People v Hamilton, 76 Mich 212; 42 NW 1131 (1889).
"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.”

In order for the offense of breaking and entering an unoccupied dwelling to be a lesser offense necessarily included within the offense of breaking and entering an occupied dwelling, then, the evidence adduced at trial must support a conviction of the defendant for the former offense. Defendant contends that the two offenses are identical except that conviction of the latter requires proof of an additional element: occupation. This is not the case, however.

The two offenses codified by MCL 750.110; MSA 28.305 are of separate and independent origin. Common-law burglary was the antecedent of the statutory offense of breaking and entering an occupied dwelling: as such that offense is clearly an offense against habitation. People v Winhoven, 65 Mich App 522, 526-527; 237 NW2d 540 (1975), 12 CJS, Burglary, § 16, p 678. Breaking and entering an unoccupied dwelling is a similar but clearly distinct offense, clearly an offense against property. As noted in 12 CJS, Burglary, § 23, pp 683-684:

"Where there are statutes punishing burglary of a dwelling house, and also other provisions punishing as a separate offense the breaking and entry of a store or other building 'not adjoining to or occupied with a dwelling-house,’ it is a necessary element of the latter offense that the building broken into should not adjoin, nor be occupied as, a dwelling house.” (Footnote omitted.)

The Michigan Supreme Court has adopted this approach in interpreting the statutory forerunners of MCL 750.110. In Koster v People, 8 Mich 431, 432-433 (1860), the Court said:

"It is a plain principle of law, that where the statutes enumerate several elements as combining to create a crime, the crime can not properly be described without including all these elements. An entry into a shop or warehouse in the night, with intent to commit a felony, is not a crime under this statute, unless it also appears that the shop or warehouse is neither adjoining to nor occupied with a dwelling. Burglary, at common law, must be committed in such a place as is within the definition of a dwelling, which term has received an enlarged signification. Entering other buildings was not regarded in the same light. In making a new crime, the legislature have seen fit to select a peculiar class of buildings, and it can not be enlarged or varied.”

In People v Levey, 206 Mich 129, 133; 172 NW 427 (1919), the Court, in applying 3 Comp Laws 1915, § 15292, the predecessor of MCL 750.110, stated that:

"There was no testimony in the case that the store which was broken into was not adjoining to or occupied with a dwelling house. This is a necessary element of the offense (3 Comp. Laws 1915, § 15292) and should be proved.” (Emphasis added.)

We adopt the same approach in the construction of MCL 750.110. In order for breaking and entering an unoccupied dwelling to be a necessarily included lesser offense in the instant case, it would be necessary that the facts show the additional element of an unoccupied dwelling. On the contrary, however, the facts indicate that the subject dwelling was occupied. This demonstrates that the statutory offenses were intended and constructed so as to be mutually exclusive. Each requires proof of an element which would necessarily preclude conviction under the other.

Breaking and entering an unoccupied dwelling is thus not a lesser included offense in the subject case under the test adopted in Ora Jones, supra. Furthermore, the opinion in Ora Jones states at 390 that:

"In the area of 'cognate’ lesser offenses, the evidence in each case adduced at the particular trial must be examined to determine whether that evidence would support a conviction of the lesser offense.”

Thus, in the case at bar, considering the evidence adduced at trial, breaking and entering an unoccupied dwelling was also not a "cognate” lesser offense of the crime charged.

In reference to the failure of the trial court to have charged the jury on the separate and distinct offense of larceny in a building, we find that the same is not a necessarily included offense nor is it a "cognate” lesser offense under the law in Michigan of breaking and entering an occupied dwelling with intent to commit larceny therein. People v Page, 73 Mich App 667, 670; 252 NW2d 239 (1977), People v Robert Brown, 72 Mich App 749, 750; 250 NW2d 522 (1976), People v Huffman, 315 Mich 134; 23 NW2d 236 (1946).

In this regard we rule that the trial court’s refusal to charge as to larceny in a building was proper.

Affirmed.

M. F. Cavanagh, J., concurs in the result only.


author: Per Curiam. N. J. Kaufman, P.J.

text:
    PEOPLE v HENSON
    Docket No. 77-1601.
    Submitted June 13, 1978, at Detroit.
    Decided November 28, 1978.
    Jarrell Henson was convicted of possession of heroin with intent to deliver, Recorder’s Court of Detroit, Michael J. Connor, J. Defendant appeals, claiming (1) that it was reversible error to permit evidence of unproven criminal activity, other than the crime with which the defendant was charged, allegedly involving a third party and the defendant to be placed before the jury, and (2) the prosecutor’s remarks in closing argument were prejudicial. Held:

    1. Evidence of defendant’s involvement with the third party was admissible as part of the res gestae of the crime charged.
    2. Any error in the prosecutor’s closing argument was cured by timely court instructions to the jury.
    Affirmed.
    N. J. Kaufman, P.J., dissented. He would hold that a prosecutor’s remarks should not appeal to the civic duty of a jury to convict a defendant or express his opinion as to a defendant’s guilt; a new trial is required where the prosecutor’s improper argument was not cured by proper instructions to the jury.
    Opinion of the Court
    1. Criminal Law — Evidence—Res Gestae — Admissibility.
    Generally, evidence of unproven criminal activity, other than that with which a defendant is charged, involving the defendant and a third party, may not be placed before a jury; however, there may be an exception to this rule where the defendant’s actions in the alleged criminal activity are part of the res gestae of the crime charged.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320 et seq., 708, 713, 715.

       75 Am Jur 2d, Trial §§ 317, 708.
    Propriety and prejudicial effect of prosecuting attorney’s arguing new matter or points in his closing summation in criminal case. 26 ALR3d 1409.

       75 Am Jur 2d, Trial §§ 225-234, 317, 708.
    Guilt of accused, propriety and effect of prosecuting attorney’s argument to jury indicating his belief of knowledge as to. 50 ALR2d 978.
    Propriety and prejudicial effect of prosecutor’s argument to jury indicating his belief or knowledge as to guilt of accused — modern cases. 88 ALR3d 449.

      2. Criminal Law — Prosecutors—Closing Argument — Prejudicial Error — Jury Instructions.
    Error in a prosecutor’s closing argument may be cured by a timely instruction of the court.
    Dissent by N. J. Kaufman, P.J.
    3. Criminal Law — Prosecutor’s Remarks — Jury—Civic Duty to Convict — Improper Argument — Cure by Instructions — Prejudice.

      Prosecutorial remarks which appeal to the civic duty of a jury to convict a defendant and which express his opinion of a defendant’s guilt are improper; a new trial is required where the prejudice to a defendant, created by the prosecutor’s improper argument, was not cured by the court’s jury instructions.

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

      Gerald M. Lorence, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Jarrell Henson was convicted of possession of heroin with intent to deliver, in violation of MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and sentenced to not more than 40 nor less than 10 years imprisonment. He appeals as of right.

An examination of the record and briefs discloses no prejudicial error. The testimony of which defendant complains was properly admitted as part of the res gestae. People v Savage, 225 Mich 84, 86; 195 NW 669 (1923), People v Scott, 61 Mich App 91; 232 NW2d 315 (1975). Any error in the closing argument was cured by a timely instruction. People v Hall, 396 Mich 650, 656; 242 NW2d 377 (1976), People v Castaneda, 81 Mich App 453, 462; 265 NW2d 367 (1978).

Affirmed.

N. J. Kaufman, P.J.

(dissenting). I respectfully dissent.

The defendant contends that the remarks of the prosecutor were improper because they appealed to the civic duty of the jury to convict the defendant and expressed the prosecutor’s opinion of the defendant’s guilt without reference to evidence.

Specifically, the defendant complains of three remarks:

1) " * * * I think the suggestion has been made about well, I think the observation should be made that when considering the intent in this case you got to remember who had the money. It wasn’t Mr. Wilson, it was Mr. Henson and dope dealers don’t sell heroin for free.”
2) "Ladies and gentlemen, this is your community. They are your streets. They do not belong to the dope peddlar [sic]. They do not belong to the people who sell poison.”
3) "If you are unconvinced as to whether the elements of intent has [sic] been proven in this case, but you are convinced that Mr. Henson possessed heroin at one time that evening, that he had the three packets of heroin, then it is your duty to find him guilty of possession of heroin. I would suggest, ladies and gentlemen, that if you find him guilty of simple possession of heroin, you will be doing Mr. Henson a favor.”

Immediately after the second complained-of statement, the defendant objected and the court sustained that objection. The court ordered the remark to be disregarded.

The trial court in upholding the objection stated:

"THE COURT: Well, this is argument. I allow a great deal of leeway on that. That comment may have been primarily appealing to the emotions. Of course counsel can do that in argument. All right, I will strike that, tell the jury to disregard it.”

While the court’s instructions cured any prejudice as far as the first and third remarks, supra, are concerned, the mere statement "All right, I will strike that, tell the jury to disregard it” certainly was not enough to cure the error as to the second remark. People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). I am not unmindful of the Supreme Court’s decision in People v Hall, 396 Mich 650, 656-657; 242 NW2d 377 (1976). However, in Hall there was no objection and the majority opinion stated:

"Whether or not in total context this language is improper, we cannot agree with defendant that appropriate cautionary instructions given on request would not have cured any error. Indeed, the trial court gave the following agreed-upon and appropriate instruction:
" '[Arguments of counsel are not evidence in the case and should not be construed by you [the jury] as such. The purpose of arguments of counsel is to assist you in coordinating, summarizing and drawing conclusions from what testimony and evidence you have heard.’ ” (Emphasis added.)

I would reverse and remand for a new trial.

       'The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.’ ” 36 Mich App at 299, (footnote omitted), quoting AJBA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d).


text:
    PEOPLE v SICKMILLER
    Docket No. 77-2308.
    Submitted October 5, 1978, at Grand Rapids.
    Decided November 28, 1978.
    Donald R. Sickmiller was convicted, on his plea of nolo conten-dere, of second-degree criminal sexual conduct, Wexford Circuit Court, William R. Peterson J. Defendant appeals, alleging that the trial court’s failure to advise him that he might be charged as an habitual offender resulted in a reversible error, and that the case should be remanded because the trial court failed to indicate on the record why a plea of nolo contendere would be appropriate in this case. Held:

    1. The failure to advise the defendant, who had previously been convicted of a felony, that if his plea was accepted he could be charged as an habitual offender and his sentence could be increased was not reversible error where the defendant was not in fact charged as an habitual offender.
    2. The record indicates that sufficient reason existed for acceptance of the plea of nolo contendere, and a remand for supplementation of the record in this case would be a useless formality.
    Affirmed.
    1. Criminal Law — Plea-Based Conviction — Habitual Offenders— Court Rules.
    A defendant’s plea-based conviction may not be used as the final or triggering offense in an habitual offender information unless at the plea-taking proceeding the trial court advises the defendant who has previously been convicted of a felony that upon acceptance of his plea he may be charged as an habitual offender and his sentence increased (GCR 1963, 785.7[l][c]).

      References for Points in Headnotes

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 7, 19.
    Propriety, under statute enhancing punishment for second or subsequent offense, of restricting new trial to issue of states as habitual criminal. 79 ALR3d 826.

       21 Am Jur 2d, Criminal Law §§ 497-502.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 7, 19.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.

       21 Am Jur 2d, Criminal Law §§ 497-502.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.

      2. Criminal Law — Plea of Nolo Contendere — Habitual Offenders.
    The failure of a trial court to advise a defendant, while taking his nolo contendere plea, that if his plea were accepted he might be charged as an habitual offender and the maximum possible sentence increased was not reversible error where the defendant was not in fact charged as an habitual offender.
    3. Criminal Law — Plea of Nolo Contendere — Remand.
    A defendant’s plea of nolo contendere was accepted for adequate reasons where the plea was the result of a plea bargain in which one count of the information was dismissed and the defendant was to have psychiatric evaluation prior to sentencing for an offense involving criminal sexual conduct.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Burton Hines, Jr., Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P.J., and T. M. Burns and C. J. Byrns, JJ.

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

   Per Curiam.

Defendant, Donald R. Sickmiller, was convicted on his plea of nolo contendere of criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3). He was sentenced to a term of 10 to 15 years in prison and appeals.

Defendant first claims that his plea must be set aside because the trial judge failed to advise him that, if his plea was accepted, he might be charged as an habitual offender and the maximum possible sentence increased. GCR 1963, 785.7(l)(c).

The claim is without merit. There is no showing that the defendant in this case has been charged as an habitual offender, People v Jones, 73 Mich App 91, 93; 250 NW2d 554 (1976), People v Love, 76 Mich App 379, 382; 256 NW2d 602 (1977). Since GCR 1963, 785.7(l)(c) requires that the trial court advise a defendant who has previously been convicted of a felony that if his plea of guilty is accepted, he may be charged as an habitual offender and his sentence increased, it follows that no plea-based conviction may be used as the final or triggering offense in an habitual offender information unless the required advice was given at the plea-taking proceeding.

Second, defendant claims that remand is required because the trial judge failed to state on the record why a plea of nolo contendere was appropriate in this case. We have carefully reviewed the record of the plea-taking proceeding. Defendant entered his plea pursuant to a plea agreement under which Count I of the information was dismissed and defendant was to have psychiatric evaluation prior to sentencing. The offense involved criminal sexual conduct. We are persuaded that defendant’s nolo plea was accepted for adequate reasons and that a remand for supplementation of the record in this case would be a useless formality. See People v Love, 72 Mich App 413, 424; 250 NW2d 94 (1976).

Defendant’s conviction is affirmed.


text:
    GARTSIDE v YOUNG MEN’S CHRISTIAN ASSOCIATION
    Docket No. 77-4211.
    Submitted June 7, 1978, at Grand Rapids.
    Decided November 28, 1978.
    Leave to appeal denied, 406 Mich 915.
    Sharon L. Gartside, the wife of Stewart Gartside, a teacher for the Ludington Area School District, was injured when she was thrown from a horse at a camp operated by the YMCA. The school district had contracted with the YMCA for the use of the camp for a period of four days; the injury occurred on the evening of the day preceding the contractual period. The Gart-sides filed a suit for damages against the Young Men’s Christian Association of Metropolitan Chicago Foundation and the Board of Trustees of the Young Men’s Christian Association of Chicago. The YMCA filed a third-party complaint against the Ludington Area School District for indemnification pursuant to an indemnity clause in the contract between the parties. The school district moved for summary judgment on the third-party claim, which was granted by the Mason Circuit Court, Charles A. Wickens, J. The YMCA appeals. Held:

    1. The YMCA’s claim that the indemnity provision was intended to apply to an accident which occurred the day prior to the contractual period is not so clearly unenforceable as a matter of law that no factual development could possibly sustain it. Therefore, the trial court erred in granting summary judgment on that basis.
    2. The indemnity contract, although it is to be strictly construed, should be enforced so as to effectuate the intentions of the parties. Those intentions are to be ascertained considering not only the language of the contract but also the situation of the parties and the circumstances surrounding the contract. Applying these considerations, there are some factual developments possible which may establish the YMCA’s right to indemnification.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 104. 5 Am Jur 2d, Appeal and Error § 853. 73 Am Jur 2d, Summary Judgment § 40.

       41 Am Jur 2d, Indemnity §§ 14-16.

       73 Am Jur 2d, Summary Judgment § 26.

      Reversed and remanded.
    1. Judgment — Summary Judgment — Failure to State a Claim— Appeal and Error — Court Rules.
    A motion for summary judgment based on failure to state a claim upon which relief can be granted is to be considered by the trial court on an examination of the pleadings alone, and a reviewing court, accepting the well-pled facts in the plaintiffs complaint as true, must determine whether the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    2. Indemnity — Contracts—Sole Negligence op Indemnitee — Construction op Contract.
    A contract to indemnify an indemnitee for damages caused by the sole negligence of the indemnitee is not unenforceable or contrary to public policy except where subject to statute; however, such a contract is subject to strict construction and will not be construed to indemnify one against the consequences of his own negligence unless it clearly appears that such was the intent of the parties.
    3. Indemnity — Contracts—Construction op Contract.
    Indemnity contracts are construed most strictly against the party who drafts them and against the indemnitee.
    4. Indemnity — Summary Judgment — Possible Factual Developments — Court Rules.
    A trial court’s grant of summary judgment in favor of a contractual indemnitor in an action by the indemnitee was in error where, considering the situation of the parties and the circumstances surrounding the contract, there are some possible factual developments which may establish the indemnitee’s right to indemnification (GCR 1963,117.2[1]).

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

      Cholette, Perkins & Buchanan (by Edward D. Wells), for defendant Ludington Area School District.

      Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Per Curiam.

On June 7, 1973, defendant (hereinafter YMCA), and third-party defendant, Luding-ton Area School District (hereinafter the school district), entered into a contract which provided that the school would have the exclusive use of the YMCA camp from September 24, 1973, to September 28, 1973. On September 23, 1973, plaintiffs, a teacher for the Ludington Area School District and his wife, were at the YMCA camp in anticipation of the school’s use of the camp beginning on the following day. During the evening, plaintiff Sharon Gartside was injured when she was thrown from a horse which she was riding at the camp. As a result of these injuries, plaintiffs filed a suit against the YMCA alleging that they negligently encouraged her to ride a very spirited and quick-tempered horse and negligently provided her with defective riding equipment. The YMCA then filed a third-party complaint against the school district for indemnification. The school district made a motion for summary judgment, GCR 1963, 117.2(1), which was granted, and the YMCA appeals.

The standard of review for determining the correctness of a ruling on a motion for summary judgment pursuant to GCR 1963, 117.2(1), is set out in Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179-180; 230 NW2d 363, 366 (1975):

"A motion based solely on subsection 1, challenges the legal sufficiency of a plaintiff’s claim and is to be considered by an examination of the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). [The] job [of] a reviewing court is to accept as true the well-pleaded facts in plaintiffs complaint, * * * , Weckler v Berrein [sic] County Road Commission, 55 Mich App 7, 9; 222 NW2d 9 (1974), and to determine whether these claims are so 'clearly unenforceable as a matter of law that no factual development can possible [sic] justify a right to recovery.’ Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).”

The YMCA’s claim for indemnification is based on a provision of its contract with the school district, whereby the school district promised:

"(f) To indemnify YMCA against, and to hold YMCA, its agents and employees harmless from, all claims, demands, costs or damages (including attorneys’ fees) because of bodily injury, including death, or property damage to any person or legal entity at any time arising out of or in any way connected with School’s use of the Camp and its facilities.”

The trial court granted the school district’s motion for summary judgment on the basis that the contract provision for indemnification was only intended to apply during the period of the contract: September 24, 1973, to September 28, 1973. While this is one possible interpretation of the contract provision, the indemnity clause is not free from ambiguity on this point. Accepting the well-pleaded facts in the YMCA’s complaint as true, its claim that the indemnity provision was intended to apply to an accident which occurred on September 23, 1973, is not so clearly unenforceable as a matter of law that no factual development could possibly sustain it. Accordingly, the trial judge erred in granting the school district’s motion for summary judgment on this basis.

The school district also contends that even if the trial judge erred in granting the motion for summary judgment on the basis that the contract provision did not apply to an injury occurring on September 23, 1973, the order of summary judgment should be affirmed because the indemnity provision of the contract did not bind the school district to indemnify the YMCA for damages caused by its sole negligence.

Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties, Title Guaranty & Surety Co v Roehm, 215 Mich 586; 184 NW 414 (1921). Contracts to indemnify the indemnitee for damages caused by the indemnitee’s sole negligence are not unenforceable or contrary to the public policy of this state, but see, MCL 691.991; MSA 26.1146(1). However, a contract which purportedly indemnifies one against the consequences of his own negligence is subject to strict construction and will not be so construed unless it clearly appears that it was intended to cover the indemnitee’s own negligence, Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977), Hubbert v Acme Equipment Co, 55 Mich App 313; 222 NW2d 224 (1974), Klann v Hess Cartage Co, 50 Mich App 703; 214 NW2d 63 (1973), Geurink v Herlihy Mid-Continent Co, 5 Mich App 154; 146 NW2d 111 (1966), Meadows v Depco Equipment Co, 4 Mich App 370; 144 NW2d 844 (1966). Also, indemnity contracts are construed most strictly against the party who drafts them and the indemnitee, Fireman’s Fund, supra. Recognizing these strict rules of construction, the YMCA argues that the contract provisions clearly show the parties’ intention that the school district was to indemnify the YMCA even for damages caused by its own negligence. Alternatively, the YMCA argues that even if the language used in the written contract provision does not sufficiently show the parties’ intention to have the school district indemnify the YMCA for the damages suffered in this case, the contract provision when considered in light of the situation of the parties and the surrounding circumstances, when the facts are properly developed, clearly shows the parties’ intention that the school district would indemnify the YMCA in this case.

Although indemnity contracts are strictly construed, they are to be enforced so as to effectuate the intentions of the parties. Accordingly, in ascertaining the intentions of the parties, one must consider not only the language used in the contract but also the situation of the parties and the circumstances surrounding the contract, see, Title Guaranty, supra. As the Supreme Court stated in Vanden Bosch v Consumers Power Co, 394 Mich 428; 230 NW2d 271 (1975),

"Although not 'expressly’ stated in the agreement, we are persuaded from our reading of that agreement, in light of the surrounding circumstances, that the parties intended that Consumers Power be indemnified against liability for its own negligence of the type precipitating this litigation.”

Applying this reasoning to the facts in this case, we conclude that there are some factual developments possible under the allegations in the YMCA’s pleadings which may establish its right to indemnification. We recognize that the YMCA may not be able to establish, at trial, that the parties clearly intended to provide for indemnification for the indemnitee’s own negligence, see, Fireman’s Fund, supra, Hubbert, supra, Klann, supra, see also Geurink, supra. In the cases cited above, the trial judge ruled that the indemnitees had failed to prove that the written contract provisions, when considered in light of the surrounding circumstances, clearly showed the parties’ intention to indemnify the indemnitee for his own negligence. However, these rulings on the indemnitor’s motion for a directed verdict were made after trial so that the indemnitee was given an opportunity to prove the parties’ intention.

In Meadows, supra, this Court affirmed the trial judge’s decision to grant the indemnitor’s motion for summary judgment but only because the contract provision in that case was barren of any reference to the concept of indemnity for damages caused by the indemnitee’s own negligence. In Vannoy v City of Warren, 2 Mich App 78; 138 NW2d 520 (1965), this Court affirmed the denial of a motion for summary judgment since the written contract terms were equivocal and uncertain as to this point and because the construction of those terms must wait until after the trial court has had an opportunity to consider evidence of the situations of the parties and the circumstances surrounding the contract. This reasoning is also applicable to this case. Although the YMCA may not be able to carry the heavy burden it will bear at trial of persuading the trier of facts that the parties clearly intended that the contract was to cover the YMCA’s own acts of negligence, the YMCA’s complaint does contain a claim which could be factually developed at trial so as to justify a right of recovery. Accordingly, the order of summary judgment entered under GCR 1963, 117.2(1), is reversed and this case is remanded to the trial court for further proceedings.

Reversed and remanded for further proceedings not inconsistent with this opinion. Costs to defendant-third-party plaintiffs.

       In Geurink v Herlihy Mid-Continent Co, 5 Mich App 154; 146 NW2d 111 (1966), the trial court granted the indemnitor’s motion for summary judgment. However, it must be seen that in Geurink, supra, the motion was granted after trial, see White v McLouth Steel Corp, 18 Mich App 688; 171 NW2d 662 (1969).