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Brooks v. State Farm Mutual Auto Insurance Co.11/19/2002
UNPUBLISHED
Plaintiff appeals as of right from the circuit court's order granting summary disposition of her claims. Plaintiff sought declaratory relief to compel defendants Auto Club Insurance Association (ACIA) and/or State Farm Mutual Insurance Company (State Farm) to proceed with arbitration of her claim for uninsured motorist coverage. We affirm.
On February 18, 1993, plaintiff sustained injuries while traveling as a passenger in a motor vehicle that collided with another motor vehicle, which was uninsured. Plaintiff's State Farm insurance policy provides uninsured motorist coverage of $100,000 per person and $300,000 per occurrence for bodily injury that a named insured is legally entitled to collect from the owner of an uninsured motor vehicle. However, if the named insured sustains bodily injury while an occupant of a vehicle not owned by the named insured and the driver of the vehicle is insured under another policy, State Farm limits its uninsured motorist coverage by the following policy provision:
If There Is Other Coverage
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3. If the insured sustains bodily injury while occupying a vehicle not owned by you, your spouse or any relative, and;
a. such vehicle is described on the declarations page of another policy providing uninsured motor vehicle coverage, or
b. its driver, other than you, your spouse or any relative, is an insured under another policy, this coverage applies:
a. as excess to any uninsured motor vehicle coverage which applies to the vehicle or driver, but
b. only in the amount by which it exceeds the primary coverage.
Under the terms of the State Farm policy, the insured must give State Farm written notice of the accident and pertinent details as soon as reasonably possible. The policy also provides that a person making a claim for uninsured motorist coverage must "send [State Farm] a copy of all suit papers at once when the party liable for the accident is sued for these damages." Upon written request of the insured, State Farm is required to arbitrate whether the insured is entitled to collect damages from the owner or driver of the uninsured vehicle and the amount of the damages.
The driver of the vehicle in which plaintiff was injured was insured by ACIA. The driver's ACIA policy also provides uninsured motorist coverage of $100,000 per person and $300,000 per occurrence. The policy provides uninsured motorist coverage to an occupant of the driver's vehicle, if the damage is caused by an accident arising out of the use of an uninsured vehicle and an insured person is legally entitled to recover from the owner or operator of the uninsured vehicle. An insured person, as defined in the ACIA policy, includes any person occupying the named insured's vehicle. The ACIA policy also contains an arbitration clause. However, the policy specifies that the insured person must file a demand within three years of the date of the accident to invoke arbitration.
On November 7, 1994, plaintiff brought a tort action against the uninsured motorist and the driver. The driver was voluntarily dismissed from the suit and on April 5, 1996, the trial court entered a default judgment in the amount of $125,000 against the uninsured motorist.
On July 29, 1998, more than five years after the accident, plaintiff made a written request for State Farm to arbitrate her claim for uninsured motorist benefits. State Farm denied her request. On February 16, 1999, plaintiff made a demand upon ACIA to arbitrate her claim for uninsured motorist coverage via the complaint in this case. Both defendants moved for summary disposition under MCR 2.
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