author: Cynar, J. D. E. Holbrook, P.J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v RUUSKA
    Docket No. 78-820.
    Submitted December 7, 1978, at Lansing.
    Decided June 19, 1979.
    Leave to appeal applied for.
    Gloria Carlson, while driving her father Arvid Carlson’s car,' collided with a motorcycle driven by Dale Ruuska. Gloria Carlson resided in her father’s home, and each of them owned an automobile insured by State Farm Mutual Automobile Insurance Company. Ruuska sued Gloria, and State Farm does not dispute insurance coverage under Arvid Carlson’s policy as Gloria was driving his car with his permission. However, State Farm brought an action for a declaratory judgment to determine whether or not it would be liable for any amounts under Gloria’s policy should the judgment for Ruuska exceed the limits of Arvid’s policy. Named as defendants in the declaratory judgment action were Ruuska, both Carlsons, and Kenneth Kemp, a defendant in the Ruuska suit. The Marquette Circuit Court, Edward A. Quinnell, J., held that a provision in Gloria Carlson’s policy which excludes liability coverage where she is driving a car not owned by her but owned by a member of her household is void under the pertinent provisions of the no-fault act. State Farm appeals. Held:

    The no-fault insurance statute has not impliedly repealed the financial responsibility laws, which determine the extent of liability coverage required under the no-fault statute. Under the financial responsibility laws, it is permissible for an insurer not to provide liability coverage when the insured is driving a particular automobile or class of automobiles other than the automobiles owned by the insured. However, in this case, the exclusion is created by a definition of a "non-owned vehicle” which is contrary to the common, ordinary meaning of the phrase and is not included within the list of exclusions in the policy nor highlighted in any way. Because the exclusion fails to meet the standards required by statute, it will not be enforced.

      References for Points in Headnotes
    [1, 7, 9] 7 Am Jur 2d, Automobile Insurance §§ 105, 106.
    Exclusion from "drive other cars” provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household. 86 ALR2d 937.

       7 Am Jur 2d, Automobile Insurance §§ 4-7, 105, 106.
    . Exclusion from "drive other cars” provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household. 86 ALR2d 937.
    ' Automobile liability insurance: operator’s policies. 88 ALR2d 995.

       73 Am Jur 2d, Statutes § 200.

       44 Am Jur 2d, Insurance § 1981.

       43 Am Jur 2d, Insurance § 279.

       7 Am Jur 2d, Automobile Insurance § 107.
    What is a "non-owned” automobile within the meaning of the coverage clause of an automobile liability policy. 83 ALR2d 926.

       73 Am Jur 2d, Statutes § 274.

      Affirmed.
    D. E. Holbrook, P.J., concurred in the result reached by the majority. However, he would hold that the trial court was correct in declaring the exclusion void on the basis of the provisions of the no-fault act, which requires that in addition to a motor vehicle being insured its owner is likewise insured against residual liability whenever he or she is legally using a motor vehicle. Judge Holbrook also would hold that the provision of the financial responsibility law which authorizes only an exclusion for a named person is exclusive as to permissible exclusions. Therefore, the exclusion involved in the present case is void.
    Opinion of the Court
    1. Insurance — Automobiles — Liability Insurance — No-Fault — Statutes.
    The owner or registrant of a motor vehicle is required to maintain security for payment of residual liability insurance benefits; nothing in the no-fault insurance act requires a person to have residual liability coverage for injuries occurring when that person is driving another’s vehicle (MCL 500.3101; MSA 24.13101).
    2. Insurance — Automobiles — Liability Insurance — Exclusions — Statutes.
    The provision of the financial responsibility act governing the issuance of an owner’s liability insurance policy indicates by implication that liability coverage need not be provided for the insured when driving a particular automobile or class of automobiles, therefore, an exclusion to liability coverage when driving a particular vehicle or class of vehicles is valid, and an owner’s policy need only provide liability coverage for those cars owned by the insured (MCL 257.520[b]; MSA 9.2220[b]).
    3. Statutes — Construction — Surplusage.
    No provision of a statute is to be treated as surplusage if at all possible.
    4. Insurance •— Insurance Policies — Construction.
    Insurance policies must be construed in accord with the ordinary and popular sense of the language used therein, and when drafted by the insurer must also be construed in favor of the insured in order to uphold coverage.
    5. Insurance — Insurance Policies — Limitations.
    An insurer has a duty to clearly express the limitations in its policy in order that those limitations may be given full effect.
    6. Insurance — Automobiles — Liability Insurance — Exclusions.
    An exclusion in an automobile liability insurance policy is void where the exclusion is created by a definition of a "non-owned vehicle” which is not in accord with the ordinary, commonly-used meaning of the phrase and which is not highlighted by boldface type or a warning nor included in the list of exclusions provided in the policy.
    Concurrence by D. E. Holbrook, P.J.
    7. Insurance — Automobiles — Liability Insurance — Statutes.

      An owner of an automobile which is properly insured is likewise insured against residual liability when he or she is legally using a motor vehicle, regardless of the ownership of the vehicle (MCL 500.3131, 500.3135; MSA 24.13131, 24.13135).

      8. Statutes — Construction — Things Specifically Included.

      It is a general rule of statutory construction that the inclusion of a thing by speciñc mention excludes that which is not mentioned.

    9. Insurance — Automobiles — Liability Insurance — Exclusions
    — Statutes.

      A section of the Insurance Code which provides for the minimum amounts of liability coverage to be afforded in an automobile insurance policy and sets forth the basis upon which an exclusion may be permissible is exclusive as to permissible exclusions; under that statute an insurance policy provision which excludes residual liability insurance to an insured who is driving a vehicle owned by another is invalid (MCL 500.3009; MSA 24.13009).

      DeGrand & DeGrand and Fraser, Trebilcock, Davis & Foster, for plaintiff.

      Robins, Davis & Lyons (by Stanley E. Karon and Terry L. Wade) (McDonald & Smith, of counsel), for defendant Dale Ruuska.

      Before: D. E. Holbrook, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   Cynar, J.

Plaintiff appeals as of right from an entry of summary judgment declaring void an exclusion in a policy issued to Gloria Carlson. Plaintiff contends that it was entitled to summary judgment on the basis of the policy exclusion.

The relevant facts are not in dispute. In June of 1975 Gloria Carlson resided in the household of Arvid Carlson, her father. Each of them owned an automobile and each was insured by plaintiff.

On June 19, 1975, while driving her father’s car, Gloria Carlson collided with a motorcycle driven by Dale Ruuska. Ruuska sustained serious injuries and filed suit against Gloria Carlson. Plaintiff does not dispute coverage of Gloria Carlson under her father’s policy, as she was driving his car with his consent. However, as it appeared that the judgment for Ruuska might exceed the limits on that policy, plaintiff sought a declaratory judgment to determine its liability for any residual amount under the policy issued to Gloria Carlson.

Gloria Carlson’s policy provides that if she owns a motor vehicle covered by the policy, such liability insurance as is afforded by the policy with respect to the owned motor vehicle is also provided when using a non-owned vehicle, with the permission of the owner. Under the section labeled "Exclusions,” none of the exclusions apply to the present situation. In the definitional section of the policy is the following:

"Non-Owned Automobile — means an automobile, trailer or detachable living quarters unit, not (1) owned by, (2) registered in the name of, or (3) furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household, other than a temporary substitute automobile. ”

The effect of this definition is to provide an exception to liability coverage when the insured is operating an automobile that is owned by another member of her household or which is available for her frequent use. Plaintiff claims that this type of exclusion is valid and acts to eliminate liability coverage for Floria Carlson under her policy in the circumstances of this case.

In declaring the policy exclusion void, the trial judge relied solely upon provisions of the no-fault insurance act. MCL 500.3101 et seq.; MSA 24.13101 et seq. He noted that MCL 500.3101; MSA 24.13101 requires that the owner or registrant of a motor vehicle maintain security for payment of benefits under residual liability insurance. He further noted that residual liability coverage is covered by MCL 500.3131; MSA 24.13131 which reads:

"Residual liability insurance shall cover bodily injury and property damage which occurs within the United States, its territories and possessions or in Canada. This insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs. In this state this insurance shall afford coverage for automobile liability retained by section 3135.”

He also referred to MCL 500.3135; MSA 24.13135, which sets out those instances where tort liability is retained in Michigan. The trial judge read these sections together and concluded that residual liability coverage for tort liability was required under the act.

Although somewhat appealing, we cannot concur in the trial court’s analysis. MCL 500.3101; MSA 24.13101 requires only that the owner or registrant of the vehicle maintain security for payment of residual liability insurance benefits. Such benefits are provided for in the policy of Arvid Carlson, the owner of the vehicle involved in the accident. Similarly, Gloria Carlson’s policy provides liability coverage when operating her car. There is nothing in the no-fault act which requires one to have residual liability coverage for injuries occurring when one is driving another’s vehicle.

According to the second-to-last sentence of MCL 500.3131; MSA 24.13131, the financial responsibility laws of the place where the injury occurs should be referred to in determining the scope of the liability coverage required in the policy. Plaintiff argues that this provision is inapplicable to injuries incurred in this state. However, in State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51, 56; 272 NW2d 555 (1978), the Court looked to the Michigan financial responsibility laws to determine the required scope of liability coverage with respect to an injury incurred in this state. Furthermore, in Ziehm v State Farm Mutual Automobile Ins Co, 88 Mich App 576; 278 NW2d 678 (1979), a panel of this Court concluded that a portion of Michigan’s financial responsibility act had not been impliedly repealed by the enactment of the no-fault act and that the financial responsibility laws determined the extent of liability coverage required under no-fault. Therefore, plaintiff’s argument is without merit.

The financial responsibility laws of Michigan are contained in the financial responsibility act, MCL 257.501 et seq.; MSA 9.2201 et seq. MCL 257.517; MSA 9.2217 states that proof of financial responsibility may be given by filing a certificate of insurance, a bond, or a certificate of deposit of money or securities. MCL 257.518; MSA 9.2218 deals with the filing of certificates of insurance. It reads:

"(a) Proof of financial responsibility may be furnished by filing with the secretary of state the written certificate of any insurance carrier duly authorized to do business in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Such certificate shall give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certificate, and shall designate by explicit description or by appropriate reference all motor vehicles covered thereby, unless the policy is issued to a person who is not the owner of a motor vehicle.
"(b) No motor vehicle shall be or continue to be registered in the name of any person required to file proof of financial responsibility unless such motor vehicle is so designated in such a certificate.” (Emphasis added.)

The last part of subsection (a) notes that the policy need not describe the vehicles covered when it is issued to one who does not own an automobile. This distinction between one who does not own an automobile and one who does is also carried over to MCL 257.519; MSA 9.2219, which deals with a nonresident’s insurance.

MCL 257.520; MSA 9.2220 sets out the scope of coverage required in a "motor vehicle liability policy”. That section distinguishes between an "operator’s” policy of liability insurance and an "owner’s” policy of liability insurance. However, it fails to define these terms. We believe the distinction noted in MCL 257.518; MSA 9.2218 and MCL 257.519; MSA 9.2219 was again carried forward to MCL 257.520; MSA 9.2220. When one does not own a car, the liability policy issued is an "operator’s policy”; when one does own a car, an "owner’s policy” is issued.

It is undisputed that Gloria Carlson owns a motor vehicle covered by a policy issued by plaintiff. Therefore, the requirements of her liability coverage are governed by the requirements of an "owner’s policy”. MCL 257.520(b); MSA 9.2220(b) states:

"Such owner’s policy of liability insurance:
"(1) Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
"(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such- named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and, subject to said limit for 1 person, $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident, and $10,000.00 because of injury to or destruction of property of others in any 1 accident;
"(3) When a certificate is filed showing that a policy or policies have been issued covering all motor vehicles owned by the insured but not insuring such person when operating any motor vehicle not owned by him, it shall be unlawful for such person to operate any motor vehicle not owned by him or not covered by such certificate.”

We believe that the exclusion created in plaintiff’s policy is in conformity with the requirements of an owner’s liability policy. Subsection (1) of MCL 257.520(b); MSA 9.2220(b) requires that those vehicles covered by the policy be expressly designated. By implication, this provision indicates that liability coverage need not be provided for the insured when she is driving a particular automobile or class of automobiles. This conclusion is further supported by subsection (3) which contemplates a situation involving a certificate of insurance covering only motor vehicles owned by the insured. If such a policy could not be issued, this subsection would have been mere surplusage. However, in interpreting statutes no provision is to be treated as surplusage if at all possible. Baker v General Motors Corp, 74 Mich App 237, 246; 254 NW2d 45 (1977), lv gtd 402 Mich 828 (1977), Scott v Budd Co, 380 Mich 29, 37; 155 NW2d 161 (1968).

Therefore, we hold that an exclusion to liability coverage when driving a particular vehicle or class of vehicles is valid. An owner’s policy need only provide liability coverage for those cars owned by the insured. The policy in this case satisfies this requirement and also provides coverage when the insured is driving an automobile not owned by him or by a member of the household and not available for their frequent use. This additional coverage, although not required, is permissible as an insurer may provide liability coverage in excess of that required. See MCL 257.520(g); MSA 9.2220(g).

We further note that an identical clause has been upheld as applied to uninsured motorist insurance in Garrison v Farm Bureau Mutual Ins Co, 84 Mich App 734; 270 NW2d 678 (1978), and Detroit Automobile Inter-Ins Exchange v Reynolds, 81 Mich App 710; 265 NW2d 799 (1978). As noted in Garrison, supra, at 738:

"The purpose of the 'drive other cars’ provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurer without a corresponding increase in the premium. The policy is not intended to cover the insured against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to use. More specifically, the evident intention of the limitation with respect to other automobiles is to prevent a situation in which the members of one family or household may have two or more automobiles actually or potentially used interchangeably but with only one particular automobile insured.”

This function of the exclusion is equally applicable in the case of liability insurance. Furthermore, such an exclusion would tend to prevent the "stacking” of the policy limit of the owner of a vehicle with that of the driver’s policy. We have no difficulty concluding that liability policies may be drafted with such goals in mind.

Having determined that an exclusion to liability coverage when the insured is driving particular vehicles is valid, we now turn to the form of the exclusion in plaintiffs policy.

Defendant Ruuska first contends that the language creating the exclusion is ambiguous. Specifically, he challenges the language defining "non-owned vehicle” and notes that similar language was deemed ambiguous in Travelers Indemnity Co v Pray 204 F2d 821 (CA 6, 1953).

"Non-owned vehicle” is defined in the policy as follows:

"Non-Owned Automobile — means an automobile, trailer or detachable living quarters unit, not (1) owned by, (2) registered in the name of, or (3) furnished or available for the frequent or regular use of the named insured, his spouse, or any relative of either residing in the same household, other than a temporary substitute automobile. ”

Unlike the clause in Travelers Indemnity, supra, the definition is drafted so that it is clear that its last three lines apply to all three subsections of the definition. Therefore, we conclude that this definition is not ambiguous.

Defendant’s final argument is that the exclusion created by the definition is improperly designated and should not be given effect. He claims that, to be valid, this "exclusion” must have been included in the list of exclusions to liability coverage contained in the policy.

In addressing this issue, we are guided by some general rules. Insurance policies must be construed in accord with the ordinary and popular sense of the language used therein. Michigan Mutual Liability Co v Mesner, 2 Mich App 350, 353; 139 NW2d 913 (1966). Insurance policies drafted by the insurer must also be construed in favor of the insured to uphold coverage. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62, 64; 250 NW2d 541 (1976). This same rule applies to exclusion provisions in the policy. Kalamazoo Aviation, Inc v Royal Globe Ins Co, 70 Mich App 267, 270; 245 NW2d 754 (1976). To be given full effect, an insurer has a duty to clearly express the limitations in its policy. Francis v Scheper, 326 Mich 441, 447-448; 40 NW2d 214 (1949), Union Investment Co v Fidelity & Deposit Co of Maryland, 549 F2d 1107, 1110 (CA 6, 1977), and Ornamental Iron & Stair Co v General Accident & Life Assurance Corp, Ltd, 68 Mich App 259, 263; 242 NW2d 544 (1976). A technical construction of policy language which would defeat a reasonable expectation of coverage is not favored. Crowell v Federal Life & Casualty Co, 397 Mich 614, 623; 247 NW2d 503 (1976).

The deposition testimony of Gloria Carlson established that she believed her policy provided coverage under these circumstances. Such a conclusion is not surprising, in light of the provision in the policy providing coverage when driving a "non-owned vehicle”. To the layperson "non-owned vehicle” would naturally include a vehicle owned by one’s father. Thus, by defining the phrase "non-owned vehicle” by reference to its ordinary, commonly-used meaning, liability coverage would be provided under Gloria Carlson’s policy. In order to determine that coverage was not provided under the circumstances of this case, it would have been incumbent upon one to read the definition of "non-owned vehicle” provided in another part of the policy in conjunction with the provision providing coverage when operating such "non-owned vehicles”.

According to MCL 257.520(b)(1); MSA 9.2220(b)(1), an owner’s policy of liability coverage must designate "by explicit description or by appropriate reference” all motor vehicles covered by the policy. We believe that plaintiffs policy fails to meet this standard. The definition used for "non-owned vehicle” is in conflict with its normal usage. Moreover, the exclusion created by the definition is hidden among the provisions of the policy. It is not highlighted in any way by boldface type or by a warning. See MCL 500.3009(2); MSA 24.13009. Nor is it included in the lengthy list of exclusions provided in the policy. Under the doctrine of ex-pressio unius est exclusio alterious, the failure to include this exclusion in the list of exclusions implies that no other exclusions to liability coverage exist.

Therefore, under the circumstances of this case, we hold that the exclusion created by the definition is void. Although such an exclusion is theoretically sound, we refuse to enforce it as written in Gloria Carlson’s liability policy. Since the common meaning of the phrase "non-owned vehicle” would include the vehicle in question here, we conclude that Gloria Carlson’s policy provided liability coverage in the present case.

Affirmed. No costs, interpretation of statutes being involved.

D. E. Holbrook, Jr., J., concurred.

D. E. Holbrook, P.J.

(concurring). This writer agrees completely with the result called for in the majority opinion, however, is constrained to respectfully disagree with the reasoning upon which that opinion is based. The factual background therein appears to be correctly stated and only other pertinent facts will be added in this concurring opinion.

The trial court based its opinion requiring the plaintiff to cover residual liability under Gloria Carlson’s insurance policy on the applicable provisions of the Michigan no-fault insurance act. MCL 500.3101 et seq.; MSA 24.13101 et seq.

Specifically, MCL 500.3101 requires insurance coverage as follows:

"(1) The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.
"(3) Security may be provided under a policy issued by an insurer duly authorized to transact business in this state which affords insurance for the payment of such benefits. A policy of insurance represented or sold as providing security shall be deemed to provide insurance for the payment of the benefits.”

Residual liability, the main concern in this case, is provided for in MCL 500.3131; MSA 24.13131:

"Residual liability insurance shall cover bodily injury and property damage which occurs within the United States, its territories and possessions or in Canada. This insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs. In this state this insurance shall afford coverage for automobile liability retained by section 3135.”

MCL 500.3135;. MSA 24.13135 is relied on to determine the scope of residual liability coverage required by law.

"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.” (Emphasis added.)

The trial court, relying on these provisions, concluded that any policy purporting to comply with the requisites of no-fault must provide coverage for residual liability arising from the use of another automobile and that the non-owned exclusion in this policy which acted to diminish the coverage was void.

In this connection it is pointed out that in this case there are two automobile insurance policies issued by plaintiff under the laws of our state. The one insuring Arvid Carlson and his automobile, and the other insuring Gloria Carlson, Arvid Carlson’s daughter, and her automobile. Both paid the requisite premiums for their respective policies. Plaintiff admits it is liable under the policy issued to Arvid Carlson for the serious bodily injuries to Dale Ruuska. Gloria Carlson is likewise liable under the residual provision of the statute for the serious injuries to Dale Ruuska because she was the driver (user) of a motor vehicle — the tortfeasor at the time of the accident.

Such is the case because the no-fault statute requires residual liability coverage insurance in MCL 500.3131, specifically as follows: "In this state this insurance shall afford coverage for automobile liability retained by section 3135”. (Emphasis added.) Section 3135 set forth hereinabove provides that "A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle. ” (Emphasis added.)

Reading these sections of the statute together mandates that in addition to the motor vehicle being insured, the owner likewise is insured against residual liability when he or she is using a motor vehicle legally. There is no question Gloria Carlson was using her father’s motor vehicle legally at the time of the accident.

Therefore this writer finds that the trial court was correct in its ruling and in citing the subject statute as the basis for its decision.

However, this writer also finds there is still another premise upon which this result can legally be reached — in fact mandated by our law.

In 1971 our Legislature in its wisdom amended the Insurance Code of 1956 and added 1971 PA 210, which has been placed in MCL as 500.3009 and MSA 24.13009, which reads as follows:

"(1) An automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for property damage, bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless such liability coverage as is provided therein is subject to a limit, exclusive of interest and costs, of not less than $20,000.00 because of bodily injury to or death of 1 person in any one accident, and, subject to said limit for 1 person, to a limit of not less than $40,000.00 because of bodily injury to or death of 2 or more persons in any one accident, and to a limit of not less than $10,000.00 because of injury to or destruction of property of others in any accident.
"(2) When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance referred to in subsection (3) of section 4 of Act No. 198 of the Public Acts of 1965, as amended, being section 257.1104 of the Compiled Laws of 1948: Warning — when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.”

The plaintiff argues this statute was prompted by our decision in the case of Allstate Ins Co v Motor State Ins Co, 33 Mich App 469; 190 NW2d 352 (1971), and our Supreme Court’s denial of leave to appeal, 386 Mich 760 (1971), which denied the insurance company therein from excluding liability where a named person was driving the motor vehicle. Further, plaintiff argues that the Courts’ previous rulings limiting other exclusions in motor vehicle liability insurance policies were set aside by the statute and plaintiff was permitted to legally incorporate the present subject exclusion in Gloria Carlson’s insurance policy thus relieving it of any liability.

Even assuming that the Legislature was prompted to enact said amendment by reason of our decision in the Allstate case, which may or may not be the complete reason, the result claimed thereby by plaintiff cannot and does not follow.

The defendant asserts that the canons of statutory construction and subsequent case law indicated that MCL 500.3009; MSA 24.13009, was to be exclusive as to permissible exclusions. This writer agrees.

It is a general rule of statutory construction that the inclusion of a thing by specific mention excludes that which is not mentioned. Van Sweden v Van Sweden, 250 Mich 238, 241; 230 NW 191 (1930). The very grant of specific powers under restrictions is an exclusion of other powers in reference to the same subject matter not granted by the legislation. Sebewaing Industries, Inc v Sebewaing, 337 Mich 530, 546; 60 NW2d 444 (1953). Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971).

The great majority of case authority appears to support the exclusive nature of MCL 500.3009; MSA 24.13009. In Citizens Mutual Ins Co v Central National Ins Co, 65 Mich App 349, 353; 237 NW2d 322 (1975), this Court found that the basic provision of Allstate had not been affected by the subsequent legislative action, in the following language:

"Citizens, to a large extent, relies on Allstate Ins Co v Motor State Ins Co, 33 Mich App 469; 190 NW2d 352 (1971), and other decisions of this Court construing the former statute and in effect argues that the 1971 amendment of §2 (d) did not work a change in the public policy of this state as enunciated in those decisions. We agree with this position.”

In that case, this Court voided an attempt to exclude passengers on motorcycles from coverage. Also see, Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977).

The recent case of Allstate Ins Co v DeFrain, 81 Mich App 503, 506-508; 265 NW2d 392 (1978), deals properly with the issue before this Court in the instant case, wherein it is stated:

"MCLA 500.3009(2); MSA 24.13009(2) allows the exclusion of liability coverage when a vehicle is operated by a named person, not where, as here, the exclusionary clause is designed to avoid liability when certain persons involved in the operation of the motor vehicle (such as the wife in the instant case) are injured.
"Plaintiff argues that the Legislature intended to exclude members of an insured’s household from residual liability coverage by its enactment of § 3114 of the no-fault act (MCLA 500.3114; MSA 24.13114), providing for personal protection insurance for members of the insured’s household. We disagree. The statutory amendment as to coverage, MCLA 257.520(b)(2); MSA 9.2220(b)(2), allows an exclusion only where a named person operates the automobile and such exclusion is authorized by the insured. The statute does not provide for any exclusion such as the one in this case.
"In determining the legislative intent, we must examine the pertinent statutes. MCLA 500.3009(1); MSA 24.13009(1) provides for setting the minimum limits for coverage under a liability policy which insures against loss resulting 'from liability imposed by law for * * * bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle’. * * *
"MCLA 500.3131; MSA 24.13131 of no-fault provides that '[r]esidual liability insurance shall cover bodily injury and property damage * * * [and that the] insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs * * *. In this state this insurance shall afford coverage for automobile liability retained by section 3135’ of the act. These statutes being in pari materia must be construed together and a reasonable construction at preserving the force and effect of each is to be sought. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943), Moyer v Wayne County Road Commission, 52 Mich App 285; 217 NW2d 53 (1974), People v Martin, 59 Mich App 471; 229 NW2d 809 (1975).
"We conclude that the exclusionary clause here in question is invalid. It is neither authorized by statute, nor in harmony with the legislative purpose to provide insurance coverage for bodily injuries as set forth in the above-cited statutes.” (Emphasis supplied.)

Also see, State Farm Mutual Automobile Ins Co v Taylor, 83 Mich App 603; 269 NW2d 242 (1978).

The more recent case of Detroit Automobile Inter-Ins Exchange v Van Slyke, 82 Mich App 237, 241; 266 NW2d 771 (1978), is also authority for the same ruling, wherein it is stated:

"We turn now to appellant’s contention that an exclusionary clause which denies coverage to an insured for claims brought against him by a third person, defined by the policy as a 'named insured’, violates public policy and is therefore void.
"On September 2nd, 1973, when the policy involved in the case at bar was issued, persons who owned or operated motor vehicles on Michigan highways were required to have an insurance policy in effect with liability coverage as specified in MCLA 500.3009; MSA 24.13009. That statute provides that no automobile liability policy shall be delivered or issued for delivery in this state unless it provides liability coverage of specified minima. The statute provides for only one exclusion, clearly inapplicable here. The exclusion contained in the policy before this Court is not authorized by the statute.” (Emphasis added.) (Footnotes omitted.)

The proper construction and application of the legislative purpose and intent in enacting MCL 500.3009; MSA 24.13009 calls for limiting instead of expanding permissible exclusions in motor vehicle liability insurance policies to be issued thereunder and is in harmony with the public policy of our state.

Affirming the trial court’s ruling based upon the construction of the statute, MCL 500.3009; MSA 24.3009, as contained in this concurring opinion permits the respective provisions under the Michigan no-fault automobile insurance act, requiring liability insurance for owners and operators of motor vehicles, to be given effect and is compatible with the liability of both owners and operators of motor vehicles recognized under the pertinent portion of the Michigan Vehicle Code. MCL 257.401; MSA 9.2101.

For the reasons herein stated this writer also votes for affirmance of the trial court.


source: Caselaw Access Project

author: Cynar, J.

license: Public Domain

text:
    TIGNER v TIGNER
    Docket No. 78-1800.
    Submitted April 9, 1979, at Lansing.
    Decided June 19, 1979.
    Nancy L. Tigner brought an action for divorce against Ronald G. Tigner. A judgment of divorce was entered, Midland Circuit Court, Tyrone Gillespie, J. The defendant appeals, alleging 1) that the trial court lacked jurisdiction because the marriage was void as the plaintiff was only 15 years of age at the time they were married, 2) that the division of the marital property improperly gave the plaintiff the bulk of the marital estate, and 3) that the trial court erred in awarding attorney fees to the plaintiff. Held:

    1. While the plaintiff was only 15 years of age at the time the parties were married, and, by statute, the ceremonial marriage was void, the parties had a valid common-law marriage when they continued to live together openly as husband and wife after the wife turned 16 years of age. The statute invalidating common-law marriage in Michigan only affects those entered into on or after January 1, 1957. The parties in the instant case had a valid common-law marriage prior to that date. The court had jurisdiction.
    2. The plaintiff did receive the. bulk of the marital estate. The division of property can be justified by the disparate earning capacities of the parties, the defendant’s responsibility in causing the marital breakdown and the needs of the couple’s minor children.
    3. In dividing the property the trial court properly considered the defendant’s pension rights. The rights were vested, and, while the pension was not payable until the defendant’s termination from employment or, at his option, upon reaching the age of 60 or 65, the court was not barred from consideration of the cash value of the pension in dividing the marital estate.

      References for Points in Headnotes

       52 Am Jur 2d, Marriage §§ 53, 54.

       24 Am Jur 2d, Divorce and Separation § 933.

       24 Am Jur 2d, Divorce and Separation §§ 632, 932.5 (supp).
    Pension of husband as resource which court may consider in
    determining amount of alimony. 22 ALR2d 1421.

       24 Am Jur 2d, Divorce and Separation § 573.

      4. The division of property indicates that the parties had little cash and few liquid assets. Under these circumstances, the award of attorney fees was not an abuse of discretion.
    Affirmed.
    1. Marriage — Common-Law Marriage — Validity — Statutes.
    Common-law marriages entered into on or after January 1, 1957, are invalid; however, this statutory provision in no way affects the validity of a common-law marriage entered into before that date (MCL 551.2; MSA 25.2).
    2. Divorce — Division of Marital Assets — Factors to Consider.
    A division of property in a contested divorce action whereby one of the parties received the bulk of the marital estate can be justified by factors such as the disparate earning capacities of the parties, the other party’s responsibility in causing the marital breakdown and the needs of the couple’s minor children.
    3. Divorce — Division of Marital Assets — Pension — Cash Value of Pension — Vested Rights in Pension.
    A trial court in devising a division of marital property as part of a judgment of divorce is not barred from consideration of the present cash value of a pension of one of the parties where that party’s rights in the pension are vested.
    4. Divorce — Attorney Fees — Award of Attorney Fees — Discretion — Appeal and Error.
    Attorney fees are awarded in a divorce action when necessary to enable a party to carry on or defend the litigation; such an award of attorney fees in a divorce action will not be disturbed on appeal except upon a showing of a manifest abuse of discretion.

      Wilson & Beale, for plaintiff.

      Sinclair & Clulo, for defendant.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Cynar, J.

On April 17, 1978, a judgment of divorce was entered in the present action, dissolving the marriage between the parties. Defendant’s subsequent motion to reopen the proofs was denied and defendant now appeals as of right.

Defendant first contends that his marriage to plaintiff was void because plaintiff was only 15 years of age at the time she was married. Therefore, he argues, the court lacked jurisdiction to enter a judgment of divorce.

The record supports defendant to a certain extent. Plaintiff was born on August 21, 1940. On September 15, 1955, the date of her marriage, she was only 15 years of age. MCL 551.51; MSA 25.21 provides in part: "No marriage, common law or ceremonial, in this state shall be contracted where the female is under the full age of sixteen [16] years, and any such marriage, if entered into, shall be void.” As applied to the present case, this statute renders the ceremonial marriage between the parties absolutely void. See Evans v Ross, 309 Mich 149, 152; 14 NW2d 815 (1944).

However, on August 21, 1956, plaintiff turned 16 years old. After this point in time, unlike the situation in Evans, supra, the parties continued to live together openly as husband and wife. Therefore, we conclude that, as of August 21, 1956, plaintiff and defendant were parties to a valid common-law marriage. Ryan v Randall, 252 Mich 501, 505; 233 NW 394 (1930), In re Leonard Estate, 45 Mich App 679, 681; 207 NW2d 166 (1973). See also Shane v Hackney, 341 Mich 91, 95; 67 NW2d 256 (1954). Although MCL 551.2; MSA 25.2 invalidated common-law marriages entered into on or after January 1, 1957, this in no way affects the validity of a valid common-law marriage entered into before that date. In re Leonard Estate, supra, at 680, fn 1. Therefore, defendant’s argument is without merit.

Defendant raises several other issues concerning the division of the marital assets and an award of attorney fees to plaintiff.

As part of this divorce decree, the trial judge awarded plaintiff the house valued at $45,500, $1000 in cash, a 1974 Chevrolet Xmpala, household furnishings and a garden tractor. Defendant received $918 in cash, a 1973 Jeep, a boat and motor, tools, and pension rights valued at $5400. Furthermore, plaintiff was granted $750 in attorney fees.

We agree with defendant’s contention that plaintiff received the bulk of the marital estate. However, this division can be justified by the disparate earning capacities of the parties, Charlton v Charlton, 397 Mich 84, 95, fn 5; 243 NW2d 261 (1976), defendant’s responsibility in causing the marital breakdown, Chisnell v Chisnell, 82 Mich App 699, 707; 267 NW2d 155 (1978), and the needs of the couple’s minor children, Westrate v Westrate, 50 Mich App 673, 675; 213 NW2d 860 (1973). In light of these circumstances we will not disturb the trial court’s property division.

In dividing the property, the trial judge properly considered defendant’s pension rights. It is clear that defendant’s rights in the pension had vested at the time of the divorce. In fact, the parties stipulated below that the pension had a present cash value of $5400, the value assigned to it by the trial judge. Further, even if defendant terminated his employment immediately, the pension would be worth $200 per month upon reaching 60 years of age or $300 per month at age 65. Although the pension was not payable until defendant’s termination from employment or, at his option, upon reaching age 60 or 65, this does not bar consideration of its present cash value in dividing the marital estate. See Miller v Miller, 83 Mich App 672, 677; 269 NW2d 264 (1978).

Defendant also contends that the trial court erred in awarding plaintiff $750 in attorney fees.

We disagree. An award of attorney fees in a divorce action will not be disturbed on appeal except upon a showing of a manifest abuse of discretion. Abadi v Abadi, 78 Mich App 73, 80; 259 NW2d 244 (1977). Such fees are awarded in a divorce action when "necessary to enable a party to carry on or defend the litigation”. Radway v Radway, 81 Mich App 328, 333; 265 NW2d 202 (1978). In the present case, the property division indicates that the parties had little cash and few liquid assets. Under these circumstances, the award of attorney fees was not an abuse of discretion.

Affirmed. Costs to plaintiff.

       At the time of the divorce, plaintiif was earning approximately $3000 per year as a beauty shop operator. Defendant, on the other hand, was earning $8.25 per hour as a lab technician.


text:
    PEOPLE v GIBSON (ON REMAND)
    Docket No. 43862.
    Submitted April 10, 1979, at Lansing.
    Decided June 19, 1979.
    Robert L. Gibson was convicted of armed robbery, Jackson Circuit Court, James G. Fleming, J. The defendant appealed. The Court of Appeals, in an order dated August 8, 1978, docket no. 77-4191, granted the prosecution’s motion to affirm. The defendant then applied for leave to appeal to the Supreme Court. The Supreme Court, in lieu of granting leave, vacated the order of the Court of Appeals affirming the defendant’s conviction and remanded the matter to the Court of Appeals for plenary consideration, 405 Mich 818 (1979). The only issue addressed by the Court of Appeals on remand is whether the circumstances of the case required the trial judge sua sponte to disqualify himself. Held:

    In this case the defendant made no motion for disqualification of the trial judge. However, under certain circumstances a trial judge is required to raise the issue of his disqualification on his own motion. Judge Fleming had presided over the separate trial of the defendant’s codefendant in a bench trial. The separate trial was necessitated by the confession of the codefendant which inculpated the defendant in the charged offense. The trial judge found the codefendant guilty of armed robbery as charged and, in his finding of fact, determined that the codefendant and the defendant had committed the crime together.
    In light of the trial judge’s earlier determination regarding the commission of the charged offense, he was under an affirmative duty to raise the issue of bias sua sponte.

    The trial judge’s statement at the codefendant’s trial, expressing his belief that defendant Gibson had participated in the armed robbery, required the judge to disqualify himself from subsequently hearing the defendant’s case. This statement, which was made prior to the defendant’s trial on the charge, amounted to prejudgment of the defendant’s case.

      References for Points in Headnotes

       46 Am Jur 2d, Judges §§ 166-172.
    Disqualification of judge for bias against counsel for litigant. 23 ALR3d 1416.

       5 Am Jur 2d, Appeal and Error § 614.
    46 Am Jur 2d, Judges § 199.

      Reversed and remanded for a new trial before a different trial judge.
    1. Judges — Disqualification of Judge — Bias — Prejudice — Court Rules.
    Disqualification of a trial judge is warranted when the judge is personally biased or prejudiced for or against any party or attorney (GCR 1963, 405.1[3]).
    2. Judges — Criminal Law — Disqualification of Judge — Raising the Issue Sua Sponte — Appeal and Error.
    A trial judge, in some circumstances, is required to raise, on his own motion, the issue of disqualification; where the circumstances of a case are such that a trial judge has an affirmative duty to raise the issue of bias sua sponte, a defendant’s failure to raise the issue in the trial court does not preclude consideration of the issue by the Court of Appeals.
    3. Judges — Criminal Law — Disqualification of Judge — Preconceived Notion of Guilt.
    Disqualification of a trial judge is required where the record discloses actual bias on the part of the judge or where the judge expresses a preconceived notion as to a defendant’s guilt or innocence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Bronson, and Cynar, JJ.
   On Remand

Cynar, J.

On July 11, 1977, following a bench trial, defendant was convicted of armed robbery. MCL 750.529; MSA 28.797. On August 11, 1977, he was sentenced to serve 7-1/2 to 20 years imprisonment and defendant appealed this conviction as of right. The prosecution’s motion to affirm defendant’s conviction was granted by a panel of this Court in an order dated August 8, 1978. However, this order was vacated by the Supreme Court on February 6, 1979, and the case was remanded to this Court for full consideration of the issues raised by defendant. 405 Mich 818 (1979).

The robbery in question was allegedly committed by defendant and a co-defendant, Richard Peete. At trial the complainant testified that on February 3, 1977, defendant, Peete and two women came to his room at the Stowell Hotel in Jackson. After a period of conversation Peete unexpectedly struck the complainant on the head with a bottle. Defendant and Peete then dragged the complainant into another room where defendant brandished a knife. The complainant was subsequently bound and robbed.

Defendant testified that he played no part in the robbery. He claimed that the robbery was committed solely by Peete and that he had no prior knowledge of it. He testified that he left the premises when Peete struck the complainant with the bottle.

On appeal defendant raises several issues. However, we need only address one: whether the circumstances of this case required the trial judge to disqualify himself sua sponte.

Although the charges against defendant and co-defendant Peete were brought in a single complaint, the proceedings against the two defendants were completely separate. They had separate arraignments, preliminary examinations, and trials and were represented by separate counsel. The separate treatment of the two defendants was necessitated by the existence of Peete’s confession, which inculpated defendant in the crime.

Peete was tried on April 26, 1977. He waived a jury trial and was tried before Jackson County Circuit Court Judge James G. Fleming. In finding Peete guilty of armed robbery the trial judge concluded:

"I find that as far as the elements that the defendant in this case, together with another acting in concert did take from MR. HUNT the sum of Seventy-seven Dollars ($77.00) in his wallet. Immediately following the hitting of MR. HUNT over the head with this pop bottle and tying him up after forcing him down, and took it from MR. HUNT against his will and while he was under physical attack. There is no question in the Court’s mind that this was done by MR. PEETE and MR. GIBSON, his companion, this assault with intent to steal from MR. HUNT his monies or other things of value that they found in the vicinity.” (Emphasis added.)

Defendant claims that the above findings amounted to a prejudgment of his case requiring Judge Fleming to have disqualified himself from sitting as trier of fact at defendant’s trial.

At the time of defendant’s trial, the disqualification of judges was covered by GCR 1963, 405. This rule provided that the issue of disqualification may be raised "by motion of any party or by the judge upon his own motion”. Disqualification is warranted when the judge "is personally biased or prejudiced for or against any party or attorney”. GCR 1963, 405.1(3).

We note initially that no motion to disqualify Judge Fleming was ever made by defendant. However, this factor is not dispositive of this issue. In some circumstances, a trial judge is required to raise the issue of disqualification on his own motion. See People v Dixson, 403 Mich 106, 109; 267 NW2d 423 (1978).

The bias alleged in the present - case is apparent only to one who had attended the Peete trial or one who had read a transcript thereof. There is no evidence that defendant or his attorney were present at this trial or that they were aware of Judge Fleming’s statement at the trial. Under these circumstances we conclude that Judge Fleming was under an affirmative duty to raise the issue of bias sua sponte. Therefore, defendant’s failure to raise this issue below does not preclude consideration of it by this Court.

The question of course, remains whether there was sufficient evidence of bias to require Judge Fleming to disqualify himself. Generally, disqualification of a trial judge is required where the record discloses actual bias on the part of the judge or where the judge expresses a preconceived notion as to defendant’s guilt or innocence. People v Koss, 86 Mich App 557, 560; 272 NW2d 724 (1978), People v Alexander, 76 Mich App 71, 78; 255 NW2d 774 (1977). Disqualification for bias has been held to be warranted when the trial judge admitted some degree of personal animus toward the defendant, People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975), when the trial judge worked on the case as counsel for one of the parties, Armstrong v Ann Arbor, 58 Mich App 359; 227 NW2d 343 (1975), and when the judge was made aware of inadmissible polygraph test results, People v Hale, 72 Mich App 484; 250 NW2d 103 (1976).

We conclude that Judge Fleming’s statement at Peete’s trial, expressing his belief that this defendant had committed an armed robbery, required Judge Fleming to disqualify himself from subsequently hearing defendant’s case. This statement, which was made prior to defendant’s trial on the charge, amounted to a prejudgment of defendant’s case. Although there is no evidence during defendant’s trial of bias on the part of the trial judge we conclude that, in light of the prejudgment, defendant’s conviction cannot stand. In accord, see People v Robinson, 18 Ill App 3d 804; 310 NE2d 652 (1974).

In so concluding, we in no way mean to impugn the integrity of Judge Fleming in these proceedings. Because of the separate proceedings against Peete and defendant, Judge Fleming was required to make findings of fact at the conclusion of Peete’s trial which would necessarily include reference to defendant. Thus, the "prejudgment” was necessitated by the exigencies of the circumstances. We hope that nothing stated herein will tend to deter trial judges from continuing to make thorough findings in bench trials. However, when such findings do amount to a prejudgment of the case of a yet-to-be-tried defendant, the trial judge should then disqualify himself from Consideration of such a defendant’s case.

Reversed and remanded for á new trial before a different trial judge.

       As a general rule, where possible bias is discovered after trial, defendant should raise the issue below via a post-trial motion for new trial. In this way a complete record can be provided the reviewing court. See People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973), Brill v Brill, 75 Mich App 706, 711; 255 NW2d 739 (1977). In the present case, however, the alleged bias is embodied in the transcript of Peete’s trial and no further record is necessary.

       Nothing said herein should be construed as requiring disqualification of a trial judge merely on the basis of rulings made in the course of a defendant’s case or statements made in conjunction with such rulings. See for example People v Mexicott, 288 Mich 671; 286 NW 121 (1939), People v Rorke, 80 Mich App 476; 264 NW2d 30 (1978), and People v Rayford Johnson, 68 Mich App 54; 242 NW2d 35 (1976), rev’d on other grounds 397 Mich 686; 246 NW2d 836 (1976). It is the trial judge’s prejudgment, rather than an exercise of his judgment, which requires disqualification in the present case.


author: Danhof, C.J.

text:
    BERKOWSKI v HALL
    Docket No. 78-950.
    Submitted April 17, 1979, at Detroit.
    Decided June 20, 1979.
    Thomas A. Berkowski was injured in an automobile collision and subsequently died. Joseph Berkowski, administrator of the estate, brought suit against the driver of the automobile which struck the automobile in which decedent was riding, the owners and operators of a bar which allegedly served intoxicants to the driver of the other automobile, members of the Dearborn Fire Department individually, and the City of Dearborn and the Dearborn Fire Department. Plaintiff alleged that the members of the Dearborn Fire Department negligently delayed transporting decedent to the hospital. Plaintiff sued the City of Dearborn and Dearborn Fire Department on a theory of vicarious liability for the negligence of the members of the Dearborn Fire Department. Defendants City of Dearborn and Dearborn Fire Department moved for accelerated judgment on the basis of governmental immunity. The Wayne Circuit Court, Andrew DiMaggio, J., granted the motion for accelerated judgment. Plaintiff appeals. Held:

    1. The standard used to determine whether a governmental operation is a "governmental function” within the meaning of the governmental immunity statute is no longer the "common good of all” test, but rather the "governmental essence” test.
    2. The "governmental essence” test is applicable to a suit which was pending on the date the Supreme Court adopted that test. There is no indication that the Supreme Court intended this new test to have prospective effect only, and there is no showing that applying the new test would result in injustice to governmental units.
    3. The operation of an emergency medical services unit by a municipal fire department is not protected by the cloak of governmental immunity, since the operation of such a service is not a governmental function under the "governmental essence” test adopted by the Supreme Court.

      References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 31.

       20 Am Jur 2d, Courts § 233.

       57 Am Jur 2d, Municipal, School and State Tort Liability § 27.

      Reversed.
    1. Statutes — Governmental Immunity — Governmental Function — Words and Phrases.
    The standard used to determine whether a governmental operation is a "governmental function” within the meaning of the governmental immunity statute is no longer the "common good of all” test, but is rather the "governmental essence” test (MCL 691.1407; MSA 3.996[107j).
    2. Municipal Corporations — Governmental Immunity — Application of New Test.
    The "governmental essence” test for determining governmental immunity is applicable to a suit brought against a local governmental unit which was pending when the Supreme Court adopted that test, there being no indication that the Supreme Court intended this new test to have prospective effect only, and there being no injustice in applying the "governmental essence” test to pending cases.
    3. Municipal Corporations — Torts — Governmental Immunity — Emergency Medical Service — Governmental Function.
    The operation of an emergency medical services unit by a municipal fire department is not protected by the cloak of governmental immunity, since the operation of such a service is not a governmental function under the "governmental essence” test adopted by the Supreme Court.

      James F. Finn and Stanley T. Bartnicki, for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, for defendants.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   Danhof, C.J.

This appeal entails application of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), to the operation of an emergency medical services (EMS) unit by a municipal fire department. The trial judge has granted accelerated judgment for the City of Dear-born and Dearborn Fire Department on grounds that such an operation is a "governmental function”. We reverse.

Plaintiffs decedent was injured in an automobile collision. An emergency vehicle from the Dearborn Fire Department was summoned to the scene of the accident to administer first aid and transport victims to the hospital. Plaintiff alleges negligent delay by the vehicle’s attendants in transporting plaintiffs decedent to the hospital caused the decedent’s death. Plaintiff has brought suit against the City of Dearborn and Dearborn Fire Department on a theory of vicarious liability for the attendants’ negligence.

When moving for accelerated judgment, the city and fire department relied extensively on this Court’s decision in Parvu v Harrison Twp Fire Dep’t, 75 Mich App 484; 255 NW2d 655 (1977). In Parvu, we specifically held the operation of an EMS unit is a "governmental function” under the "common good of all” test formulated in Gunther v Cheboygan County Road Comm’rs, 225 Mich 619; 196 NW 386 (1923). The Parvu panel analogized the operation of an EMS unit to the operation of a public hospital, which had been held to be governmental in several cases under the "common good of all” test. See e.g., Nicholson v Detroit, 129 Mich 246; 88 NW 695 (1902). In their brief on appeal, the defendants city and fire department again relied on Parvu.

Since briefs were submitted in this case, the Supreme Court has altered the definition of "governmental function”. The test no longer is whether the operation in question is for the common good, but instead, whether it is "of essence to governing”. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978).

Applying the "governmental essence” test in Parker v Highland Park, supra, a majority of four, composed of Justices Kavanagh, Levin, Fitzgerald and Moody, found the operation of a general hospital by a municipality to be nongovernmental. Thereby, the majority overruled Nicholson and, by apparent analogy, Parvu. In a companion case, Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), a different majority of four, composed of Justices Williams, Coleman, Ryan and Moody, found the operation of a mental hospital to be governmental.

In both cases, Justices Williams, Coleman and Ryan rejected the "governmental essence” test. They reasoned such a test was contrary to the legislative directive to look to the common law, as it stood at the time of the immunity statute’s enactment, for purpose of defining governmental tort liability. Justice Moody, who provided the swing vote in each case, adopted the "governmental essence” test, but found the operation of a mental hospital had attributes essential to governing. Specifically, he based his distinction between general and mental hospitals on differences in (1) competition between public and private hospitals, (2) financial involvement by the state, (3) state responsibility for the placing of patients, (4) public need for the segregation of patients, and (5) voluntary nature of commitment.

At oral argument in the instant case, the city and fire department responded to Parker and Perry in two ways. First, defense counsel contended the "governmental essence” test should be given prospective effect only, according to the principles announced in Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960). Defense counsel asserted public bodies have substantially relied on the old rule, and have failed to protect themselves by purchasing available insurance. Therefore, counsel maintained, the operation of an EMS unit for purposes of this cause of action is governmental under the "common good of all” test as applied in Parvu. Secondly, the city and fire department claimed, even if the "governmental essence” test is given present effect, operation of the EMS unit in question here is governmental. Defense counsel argued the operation is more like the operation of a mental hospital than a general hospital, since it is part and parcel of a public fire department and since public fire departments are not in significant competition with private fire departments.

We hold the "governmental essence” test is applicable to the present case. If the test was not intended to have present effect, we believe the majority in Parker v Highland Park, supra, would have said so. In Parker v Port Huron Hospital, supra, and in other cases overruling longstanding precedent, e.g., Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), the Supreme Court has expressly delimited the effective dates of decision.

Moreover, even if the "governmental essence” test is to be given prospective effect, an exception should be made for cases, like the one here, that were pending when the test was adopted. In determining whether any rule of law should have retroactive or prospective effect, and to what extent, Justice Edwards has written:

"It is evident that there is no single rule of thumb which can be used to accomplish the maximum of justice in each varying set of circumstances. The involvement of vested property rights, the magnitude of the impact of decision on public bodies taken without warning or a showing of substantial reliance on the old rule may influence the result.” Williams v Detroit, supra, at 266.

No doubt the Supreme Court’s adoption of the "governmental essence” test will have a profound impact on public bodies in this state. The present appellees have not shown (merely asserted) substantial reliance on the old rule, but we can take notice of that probability. Still, the change was not entirely without warning. Courts of this state and other jurisdictions for years have been steadily eroding the doctrine of governmental immunity, especially as to municipalities. See Williams v Detroit, supra. Further, the detriment public bodies may have incurred in reliance on the old test for governmental immunity must be balanced against the injuries suffered by plaintiffs which, according to the most enlightened thinking, should be compensable by governmental agencies. Thus, we find no injustice in applying the "governmental essence” test to cases pending when the test was adopted.

Applying that test to the facts of this case, we hold the operation of the subject EMS unit is not a "governmental function”. Searching for the factors enumerated by Justice Moody in Parker and Perry, we do not find the attributes that would make the operation essentially governmental.

The appellees’ focus on competition between private and public fire departments in their principal operations is misplaced. Clearly, in Parvu the panel focused on the precise operation involved, rather than overall or principal departmental operations, in applying the then-accepted definition of "governmental”. That focus was correct under prior case law. See Dohm v Acme Twp, 354 Mich 447; 93 NW2d 323 (1958). The only relevant change in the law since Parvu has been in the definition of "governmental”.

Thus, we find the Dearborn Fire Department’s operation of the subject EMS unit is more like the operation of a general hospital than a mental hospital. According to Parker and consistent with Perry, therefore, the operation is not protected by the cloak of governmental immunity.

Reversed. No costs, a public question.


author: M. J. Kelly, J.

text:
    VERMIGLIO v CONDOR MANUFACTURING, INC
    Docket No. 78-1725.
    Submitted March 19, 1979, at Detroit.
    Decided June 20, 1979.
    In lieu of leave to appeal, remanded to the Worker’s Compensation Appeal Board, 407 Mich 903.
    Andrew Vermiglio suffered a severe leg injury while employed by Triad Construction Company in 1965. Thereafter he was afflicted with recurrent osteomyelitis (infection of the bone). In 1969 he began work with Condor Manufacturing, Inc. In November of 1970, he was hospitalized and underwent further surgery. After this hospitalization he returned to Condor, but the pain persisted and he was laid off in 1972. In August of 1972, he began working for Tubular Sales Company, was again hospitalized in August of 1973, and upon being discharged from the hospital was laid off by Tubular Sales apparently because the company became aware of his leg condition. On November 5, 1973, he filed a complaint with the Workmen’s Compensation Bureau alleging total disability and requesting compensation from Triad Container, Tubular Sales and their insurance carriers. Later, the complaint was amended to include defendants Condor Manufacturing and National Ben Franklin Insurance Company, Condor’s insurance carrier. Plaintiff, with the approval of the referee, redeemed his claims against Triad Construction and Tubular Sales, but preserved his claim against Condor and its carrier. At a hearing in 1975, the referee found that plaintiff was partially disabled since the last day he worked for Condor and that Condor should pay continuing compensation. Defendants Condor and Ben Franklin Insurance appealed to the Workmen’s Compensation Appeal Board (WCAB). The WCAB modified the referee’s award, holding that benefits paid by Condor were to cease as of the day plaintiff ended his employment with Tubular Sales on August 13, 1973. The board further found that plaintiff’s subsequent employment at Tubular Sales had aggravated his condition and produced a last-day-of-work disability. According to the board, had it not been for a redemption of liability by Tubular Sales, it would now be wholly responsible as the last employer. Plaintiff appeals contending that the board’s opinion is internally inconsistent because it found, in effect, two "total” disabilities, the one at Condor and the second when he ended his employment with Tubular Sales. Plaintiff argues that because the board never found that plaintiff had recovered from his first total disability, his subsequent employment and any subsequent aggravation is irrelevant, and therefore, the board erred in ordering the cessation of benefits as of August 13, 1973. Defendants contend that the board’s opinion did not find two total disabilities; rather, the compensation awarded from Condor represents only a finding of a temporary total disability which did not become permanent until plaintiff left Tubular Sales on August 13, 1973. Defendants further contend that, because liability for an aggravated injury rests with the employer whose work last subjected plaintiff to the disabling conditions, the board’s finding that Tubular Sales was plaintiff’s last employer precludes an award of continuing benefits from Condor. Held:

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation § 552.

       82 Am Jur 2d, Workmen’s Compensation § 409.

       82 Am Jur 2d, Workmen’s Compensation § 564.

      1. Findings of fact by the WCAB are conclusive absent fraud. When a disability results from the aggravation of a condition over a period of time, then liability for compensation benefits rests with the employer where the employee last worked subject to the conditions resulting in his disability. There was sufficient evidence in the record to support the board’s finding that Tubular Sales was plaintiff’s last employer aggravating his leg condition, and therefore, exclusively liable for the payment of continuing benefits.
    2. The WCAB determination was not internally inconsistent or tantamount to a finding of two total disabilities. The hearing referee found that plaintiff was partially disabled after leaving Condor. The board, in its subsequent modification, implicitly adopted this finding when it awarded compensation benefits for only partial disability. Because plaintiff was found to be only partially disabled from his employment at Condor, the board’s finding that the subsequent aggravation at Tubular Sales culminated in a last-day-of-work disability is not fatally inconsistent.
    Affirmed.
    1. Workmen’s Compensation — Appeal Board — Findings op Fact — Support in Record — Appeal and Error.
    Findings of fact of the Workmen’s Compensation Appeal Board are conclusive absent fraud, thus appellate review is limited to determining if there is any evidence to support the board’s factual findings; where the board’s findings are supported by competent, material and substantial evidence on the record, they will be upheld on appeal.
    2. Workmen’s Compensation — Employee Disability — Aggravation of Conditions •— Liability for Benefits — Last Employer.
    The law is clear as to who, among several successive employers, is responsible for payment of compensation benefits to an injured employee; when a disability results from the aggravation of a condition over a period of time, then liability for compensation rests with the employer where the employee last worked subject to the conditions resulting in his disability (MCL 418.301[1], 418.435; MSA 17.237[301][1], 17.237[435]).
    3. Workmen’s Compensation — Appeal Board — Implied Findings op Fact — Appeal and Error.
    The Court of Appeals may note an implied finding of fact, not expressly stated by the Workmen’s Compensation Appeal Board, if that fact was necessarily determined in order to reach a certain conclusion.

      Ripple, Chambers & Steiner, P.C., for plaintiff.

      Sommers, Schwartz, Silver & Schwartz (by John F. Vos), for defendant.
    Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   M. J. Kelly, J.

Plaintiff, Andrew Vermiglio, appeals a March 13, 1978, determination of the Workmen’s Compensation Appeal Board (WCAB) modifying the decision of the hearing referee that defendant Condor Manufacturing, Inc., plaintiff’s second employer, and its insurer, were liable for payment of continuing disability benefits, and holding that defendants’ liability ceased on the last day of plaintiff’s employment with Tubular Sales, plaintiff’s third employer.

Testimony taken before the hearing referee on September 2, 1975, indicated the following: Plaintiff originally suffered a severe leg injury while employed by Triad Construction Company in 1965. Plaintiff was hospitalized several times before he was able to work again; but, as a result of the accident, he has suffered from recurrent osteomyelitis (infection of the bone).

In September of 1969, plaintiff began work with defendant Condor Manufacturing, Inc. His job as a "chucker”, according to plaintiff, required him to stand for 10 hours a day, 58 hours a week, feeding a machine. During the second year of his employment with Condor, plaintiff began to experience severe discomfort because his left leg would drain and swell. In November of 1970, he was hospitalized and underwent further surgery. As a result of plaintiff’s original injury and various hospitalizations, his left leg is two inches shorter than his right leg and he is unable to bend his left knee. After the 1970 hospitalization, plaintiff returned to Condor; however, the pain persisted and, according to plaintiff, he was laid off in 1972.

After having his brother take his preemployment physical, plaintiff began working for Tubular Sales as a warehouseman in August, 1972. This employment required that plaintiff load and unload trucks as well as cut steel tubing on a saw. Plaintiff was again hospitalized in August, 1973. Upon being discharged from the hospital, plaintiff was laid off by Tubular Sales, apparently because the company became aware of plaintiff’s leg condition. Plaintiff has not worked since.

On November 5, 1973, plaintiff filed a complaint with the Workmen’s Compensation Bureau alleging total disability and requesting compensation from Triad Container Corporation and Tubular Sales Company and their respective insurance carriers. On April 29, 1974, plaintiff amended his complaint to include defendants, Condor Manufacturing, Inc. and its insurance carrier, National Ben Franklin Insurance Company. Subsequently, with the approval of the referee, plaintiff and two of the defendants, Triad Container and Tubular Sales, and their insurance carriers, entered into an agreement to redeem liability. Plaintiff agreed to settle all his claims against these defendants in exchange for $35,000; however, plaintiff preserved his claim against Condor Manufacturing and its insurance carrier.

The medical testimony introduced at the September 2, 1975, hearing before the referee was contradictory. Although all five doctors agreed that plaintiff’s osteomyelitis was caused by his original injury in 1965, there was disagreement as to whether employment involving excessive standing, bending and lifting could exacerbate the condition. The hearing referee found that plaintiff was partially disabled since May 3, 1972 (the last day worked at defendant Condor), and that defendant should pay continuing compensation to plaintiff at the rate of two-thirds of the difference between his average weekly wage and his weekly earnings thereafter, not to exceed $101 per week.

On appeal to the WCAB, the defendants contended that plaintiff’s original injury had not been aggravated by his employment at Condor. Alternatively, it was asserted that any compensation for subsequent aggravation should be assessed solely against Tubular Sales, since plaintiff was. last subjected to the conditions resulting in his disability when he was employed there. MCL 418.435; MSA 17.237(435).

The appeal board found that stresses and strains during plaintiff’s employment at Condor aggravated and reactivated his chronic bone infection. However, the board altered the referee’s scheduled compensation benefits; it awarded benefits to plaintiff in the amount of $86 per week for any weekly wages lost from the time of his 1970 hospitalization until May 3, 1972, and $95 per week thereafter until increased to $101 per week on September 6, 1972 (when his son Thomas was born), and for two-thirds of the difference in any wage loss while employed by Tubular Sales not to exceed $101 weekly. In addition, the board also modified the referee’s award of continuing benefits, holding that benefits paid by defendant were to cease as of the day plaintiff ended his employment at Tubular Sales, August 13, 1973. The board further found that plaintiff’s subsequent employment at Tubular Sales had aggravated his condition and produced a last-day-of-work disability. According to the board, had it not been for a redemption of Tubular Sales’ liability, it would now be wholly responsible as the last employer.

It is this modification of the award which frames the issue on appeal: after finding that plaintiff had aggravated his disability while employed by defendant, did the appeal board err in holding defendant to be a "prior” employer, liable only until a subsequent aggravating exposure occurred, rather than a "last” employer and liable for the payment of continuing benefits?

In essence, plaintiff seeks to have Condor, his second employer, treated as his last employer under MCL 418.435; MSA 17.237(435), and therefore, liable for the payment of continuing disability benefits. The hearing referee adopted this position; however, the appeal board did not and ordered compensation to cease at the moment the subsequent employer’s liability accrued, that is, August 13, 1973. In attacking the appeal board’s modification of the compensation award, plaintiff asserts that the board’s opinion is internally inconsistent because it found, in effect, two "total” disabilities: the first occurring in November of 1970 while plaintiff was employed by Condor, the second occurring on August 13, 1973, when plaintiff’s employment with Tubular Sales ended. Proceeding from that premise, plaintiff argues that because the board never found that plaintiff had recovered from his first "total” disability, his subsequent employment and any subsequent aggravation is irrelevant, and thus, the board erred in ordering the cessation of disability benefits as of August 13, 1973.

Defendant counters with a two-step defense. Focusing on the cornerstone of plaintiff’s position, defendant argues that the board’s opinion did not find two "total” disabilities; rather, the compensation awarded from Condor represents only a finding of a "temporary” total disability which did not become "permanent” until plaintiff left Tubular Sales on August 13, 1973. Moreover, defendant asserts that, because liability for an aggravated injury rests with the employer whose work last subjected plaintiff to the disabling conditions, the board’s finding that Tubular Sales was plaintiff’s last employer precludes an award of continuing benefits from Condor.

Initially, we reiterate the applicable standard of review. Because findings of fact of the WCAB are conclusive absent fraud, we are limited to determining if there was any evidence to support the finding here in issue. MCL 418.861; MSA 17.237(861). The board’s finding of fact will be upheld where "supported by competent, material and substantial evidence in the record * * *”. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 250; 262 NW2d 629 (1978). We find the board’s opinion to be supported by the evidence and affirm the modified award.

In our opinion, the law is clear as to who, among several successive employers, is responsible for payment of compensation benefits to an injured employee. When a disability results from the aggravation of a condition over a period of time, then liability for compensation rests with the employer where plaintiff last worked subject to the conditions resulting in a disability. MCL 418.435; MSA 17.237(435), MCL 418.301(1); MSA 17.237(301)(1), Smith v Lawrence Baking Co, 370 Mich 169; 121 NW2d 684 (1963), Gilbert v Reynolds Metals Co, 59 Mich App 62; 228 NW2d 542 (1975), Aseltine v Leto Construction Co, 43 Mich App 559; 204 NW2d 262 (1972). As stated in Johnson v Valley Grey Iron Foundry, 58 Mich App 574, 581-582; 228 NW2d 469 (1975):

"The entire structure of the act seems to contemplate the imposition of liability upon a single employer * * *
"The most reasonable interpretation of the act is that the Legislature intended to give the plaintiff a single direct action against only his last employer * * *”.

Here, the board found Tubular Sales to be the last employer subjecting plaintiff to working conditions which could aggravate his leg injury, and thus, the sole employer liable for the payment of continuing disability benefits. Although the evidence concerning employment conditions at Tubular Sales was sparse compared to that concerning conditions at Condor, we find that there was sufficient evidence in the record to support the board’s conclusion. At the September 2, 1975, hearing, plaintiff acknowledged that his subsequent employment entailed loading and unloading trucks and was a "standing up” job. In addition, two of the doctors who believed that employment could aggravate osteomyelitis stated that they could not distinguish between the aggravation stemming from each employment. Finally, plaintiff’s August, 1973, hospitalization suggests the likelihood of further aggravation while at Tubular Sales. We find this evidence to be sufficient to support the board’s finding that Tubular Sales was plaintiffs last employer aggravating his leg condition, and thus, exclusively liable for the payment of continuing benefits.

In any event, we are unprepared to accept the predicate upon which plaintiff’s argument proceeds, for we do not find the board’s determination to be internally inconsistent and tantamount to a finding of two "total” disabilities. The hearing referee specifically found that plaintiff was partially disabled after leaving the defendant’s employ. We find that the appeal board, in its subsequent modification of the award, implicitly adopted this finding because it ¿warded compensation benefits for partial disability equal to two-thirds of the difference between the employee’s average weekly wages and the average weekly wages he was able to earn after the injury. MCL 418.361; MSA 17.237(361). This Court may note an implied finding of fact not expressly stated if that fact was necessarily determined in order to reach a certain conclusion. Clark v Apex Foundry, Inc, 7 Mich App 684, 688; 153 NW2d 182 (1967). Because plaintiff was found to be only partially disabled from his employment at Condor, the board’s finding that the subsequent aggravation at Tubular Sales culminated in a last-day-of-work disability is not fatally inconsistent.

We therefore affirm the board’s determination that Tubular Sales was plaintiffs last employer at the time when plaintiff was permanently disabled, and as such, would be solely responsible for the payment of continuing compensation benefits to plaintiff had its liability not been redeemed.

Affirmed.

       Even on such a finding below, if that were the finding, we would not necessarily find an error of law. Workers have been retained as employees earning wages even though physically disabled to such an extent that medical experts could find total disability. One is reminded of the slogan "hire the handicapped” and of the opportunities for employment of the blind and physically disabled.