Underwood v. Rechsteiner

R. M. Maher, J. Plaintiffs appeal from an order granting defendant’s motion for accelerated judgment, GCR 1963, 116. We affirm. Plaintiffs’ complaint, filed May 13, 1975, in circuit court, alleges personal injuries caused by defendant’s negligence in an accident on May 19, 1972, involving their automobile and an automobile driven by defendant. Also alleged was $2,000 damage to plaintiffs’ automobile. On April 11, 1975, plaintiffs, after receiving $4,149.13 from Allstate Insurance under their uninsured motorist coverage, entered into a "trust agreement”. They agreed to hold as trustees for the benefit of Allstate "all rights, claims and causes of action” they might have "because of bodily injury, sickness, or disease or death” arising out of the May 19, 1972, accident. The agreement goes on to provide that: "The Trustee agrees to take, through any representative designated by the Beneficiary, such action as may be necessary or appropriate to recover the damages suffered by the Trustee from any person or persons, organization, association or corporation other than the Beneficiary who may be legally liable therefor, such action to be taken in the name of the Trustee, the Beneficiary to pay all costs and expense in connection therewith. It is further agreed that any monies recovered by the Trustee as the result of judgment, settle [630] ment, or otherwise will be held in trust and paid to the Beneficiary, provided, however any sum recovered in excess of the total amount paid by the Beneficiary to the Trustee under the terms of the above-mentioned policy, shall be retained by the Trustee for his own use and benefit.” On May 1, 1975, an action against defendant was started in district court by plaintiffs as trustees for the use and benefit of Allstate. Recovery of $4,149.13 was sought. Defendant filed his motion for accelerated judgment in the circuit court action. The order granting the motion gave GCR 1963, 116.1(2)(4)(5) as its basis. That portion of plaintiffs’ complaint seeking recovery for personal injuries was properly dismissed under GCR 1963, 116.1(5): "the claim is barred because of * * * assignment or other disposition of the claim before commencement of the action.” The remainder of plaintiffs’ suit, for property damage to their automobile, fails to meet, when standing alone, the circuit court’s jurisdictional requirements, MCLA 600.8301; MSA 27A.8301, and therefore comes under GCR 1963, 116.1(2). Plaintiffs point out that they brought the circuit court action in their individual capacities, while in the district court action they are acting as trustees. This answers a motion for accelerated judgment in the circuit court action under GCR 1963, 116.1(4): "another action is pending between the same parties involving the same claim.” In view of the trust agreement, however, any action against defendant for personal injuries to plaintiffs arising out of the May 19, 1972, accident would have to be brought by plaintiffs as trustees. The agreement plainly states that plaintiffs will hold for Allstate’s benefit "all rights, claims and [631] causes of action”. Though the agreement provides for retention by plaintiff of any sum recovered in excess of the amount Allstate had previously paid, this does not lead to the conclusion that plaintiffs could maintain an action in their individual capacities. We think defendant could properly take the "trust agreement” as plaintiffs’ agreement to hold all their rights, claims and causes of action against him as trustees for the benefit of Allstate. Even though the second paragraph provides for the possible participation by plaintiffs in a recovery against defendant, it is the intent of this paragraph that this recovery would be had in an action commenced by plaintiffs as trustees. The agreement does not indicate any reservation by plaintiffs of the right to bring an action in their individual capacity. The agreement plaintiffs entered into was a "disposition of the claim before commencement of the action” that supported the grant of accelerated judgment against them. We will not speculate on why plaintiffs assented to this broad trust agreement, or what sort of advice was given them. Affirmed, costs to defendant. D. F. Walsh, J., concurred.