Lee v. Auto-Owners Insurance

554 N.W.2d 610 (1996) 218 Mich. App. 672 Blake LEE, Plaintiff-Appellee, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellant, and Abood, Abood & Rheaume, P.C., and David P. Pasichnyk, Defendants-Appellees. Docket No. 175571. Court of Appeals of Michigan. Submitted May 21, 1996, at Lansing. Decided September 10, 1996, at 9:15 a.m. Released for Publication October 25, 1996. *611 Jan Paul Benedict, Lansing, for Blake Lee. Fraser Trebilcock Davis & Foster, P.C., Lansing (by C. Mark Hoover and Charyn K. Hain), for Auto-Owners Insurance Company. Willingham & Cote', P.C., East Lansing (by Ray Foresman and Anthony S. Kogut), for Abood, Abood & Rheaume, P.C., and David P. Pasichnyk. Before: MICHAEL J. KELLY, P.J., and MARILYN J. KELLY and TAYLOR, JJ. ON SECOND REMAND MICHAEL J. KELLY, Presiding Judge. This case is before us a third time, on second remand. We initially reversed the trial court's denial of defendant Auto-Owners' motion for summary disposition and affirmed the trial court's dismissal of Auto-Owners' claim of release. Lee v. Auto-Owners Ins. Co., 201 Mich.App. 39, 505 N.W.2d 866 (1993), vacated 445 Mich. 908, 519 N.W.2d 890 (1994). On the first remand, we determined that M.C.L. § 500.2254; M.S.A. § 24.12254 does not affect the insurance contract between plaintiff Lee and Auto-Owners and that plaintiff was not entitled to arbitration under the policy. Lee v. Auto-Owners Ins. Co. (On Remand), 208 Mich.App. 207, 527 N.W.2d 54 (1994), vacated 451 Mich. 874, 549 N.W.2d 565 (1996). In an order dated April 23, 1996, the Supreme Court, in lieu of granting leave to appeal, vacated our earlier judgment and remanded the case to this Court as on rehearing granted. 451 Mich. 874, 549 N.W.2d 565 (1996). Our Supreme Court directed us to "consider and decide whether a condition of prejudice should be incorporated into the exclusionary clauses contained in the policy of insurance." We conclude that it should not and reverse the trial court's denial of summary disposition in favor of defendant Auto-Owners. Plaintiff was a passenger in an automobile involved in an accident. He had underinsured/uninsured motorist coverage with defendant Auto-Owners for up to $50,000. Plaintiff's Auto-Owners policy provided that the uninsured motorist coverage "shall not apply ... to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured,... shall, without written consent of the Company, make any settlement with any person or organization who may be legally liable therefor." Plaintiff sued the driver and subsequently settled for $20,000, the limits of the driver's policy. Plaintiff entered into this settlement and discharged the driver from all future liability without the knowledge or approval of Auto-Owners. Following the settlement, plaintiff sought PIP and underinsured motorists benefits from Auto-Owners. Auto-Owners paid plaintiff PIP benefits, but denied his claim for underinsured motorist coverage. Auto-Owners asserted that plaintiff's claim for underinsured motorist benefits was barred by *612 his unauthorized settlement with the driver. Plaintiff moved for partial summary disposition to strike Auto-Owners' affirmative defenses. The trial judge agreed with plaintiff's position that Auto-Owners would have to show prejudice in order to assert that plaintiff's breach of policy conditions barred him from recovering underinsured motorist benefits. Michigan courts have consistently upheld policy exclusions barring recovery of benefits where the insured party releases a tortfeasor from liability without the insurer's consent, recognizing that such a release of liability destroys the insurance company's right to subrogation. Flanary v. Reserve Ins. Co., 364 Mich. 73, 75, 110 N.W.2d 670 (1961); Stolaruk v. Central Nat'l Ins. Co. of Omaha, 206 Mich.App. 444, 448-450, 522 N.W.2d 670 (1994); Adams v. Prudential Property & Casualty Ins. Co., 177 Mich.App. 543, 544-545, 442 N.W.2d 641 (1989); Poynter v. Aetna Casualty & Surety Co., 13 Mich.App. 125, 128-129, 163 N.W.2d 716 (1968). A plaintiff's settlement with a negligent motorist or other responsible party destroys the insurance company's subrogation rights under the policy and bars plaintiff's action for uninsured motorist benefits unless the insurer somehow waives the breach of the policy conditions. Adams at 544-545, 442 N.W.2d 641. The language of Auto-Owners' policy exclusion is unambiguous and does not contravene Michigan law or public policy. Michigan law recognizes that an insured's release of a potentially liable tortfeasor is prejudicial to the insurer because such a release destroys any possibility that the insurer could recoup some of the amounts paid via its right to subrogation. Flanary at 75, 110 N.W.2d 670; Adams at 544-545, 442 N.W.2d 641; Poynter, at 128-129, 163 N.W.2d 716. There is no need to require Auto-Owners to actually prove prejudice due to the loss of its right to subrogation. Clear and specific exclusions contained in policy language must be given effect. Allstate Ins. Co. v. Keillor, 450 Mich. 412, 417, 537 N.W.2d 589 (1995). The exclusion in Auto-Owners' policy must be enforced as written, without incorporating a condition of prejudice. We remand to the trial court for entry of an order of dismissal as to defendant Auto-Owners Insurance Company. Reversed in part. We do not retain jurisdiction. TAYLOR, J., concurs. MARILYN J. KELLY, Judge (dissenting). I respectfully dissent. The breach of a consent to settlement provision, like the breach of any other provision of a contract, must be material in order to adversely affect the parties' rights. Walker & Co. v. Harrison, 347 Mich. 630, 634, 636, 81 N.W.2d 352 (1957). In this case, plaintiff's failure to comply with the consent to settle clause was not material and did not defeat his right to recover underinsured benefits for which he had paid a premium unless defendant Auto-Owners can show that it was prejudiced. I would hold that a condition of prejudice should be incorporated into the exclusionary clause in the policy of insurance under consideration. Therefore, I would affirm the trial court's denial of summary disposition for defendant Auto-Owners.