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01/08/76 RICE v. DETROIT AUTOMOBILE INTER-INSURANCE

January 8, 1976

RICE
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE



Appeal from Wayne, Charles Kaufman, J.

Leave to appeal denied, 396 Mich 858.

Lesinski, C. J., and J. H. Gillis and Allen, JJ.

SYLLABUS BY THE COURT

1. Automobiles -- Insurance -- Statutes -- Uninsured Motorist Coverage.

An insurance company was not obligated by statute to extend the uninsured motorist protection of an automobile liability policy to the named insureds' son, who was injured in an accident with an uninsured motorist, where the son's injury occurred while occupying a car in which he was not entitled to the liability coverage of the policy (MCLA 500.3010; MSA 24.13010).

2. Automobiles -- Insurance -- Statutes -- Uninsured Motorist Coverage.

An insurance company was obligated by statute (now repealed) to provide uninsured motorist protection only to the extent that an insured, other than a named insured, is covered for purposes of liability protection under the policy (MCLA 500.3010; MSA 24.13010).

The opinion of the court was delivered by: Allen

Complaint by John Q. Rice, Jr., against Detroit Automobile Inter-Insurance Exchange for a declaratory judgment concerning the coverage under an uninsured motorist provision of an automobile insurance policy. The Secretary of State intervened. Summary judgment for defendant. Plaintiff appeals.

We are confronted with the issue of whether an exclusion clause within the uninsured motorist coverage section of an automobile insurance policy contravenes public policy prescribed by MCLA 500.3010; MSA 24.13010, *fn1 insofar as the exclusion applies to one other than a named insured who, under the circumstances in this case, is not an insured under the liability section of the policy.

Plaintiff was involved in a motor vehicle accident with an uninsured motorist on November 18, 1971, as he was operating a 1968 Pontiac titled to him and his mother. Although he carried no automobile insurance on the Pontiac, *fn2 plaintiff's parents were named insureds on a policy of automobile insurance issued by Detroit Automobile Inter-Insurance Exchange (DAIIE) on a 1966 Mercury, and plaintiff was deemed an insured for certain purposes under the liability section and uninsured motorist section owing to his status as a relative who resided in the household of the named insureds. *fn3 Plaintiff brought this suit seeking a declaratory judgment that he was entitled to coverage under the uninsured motorist section in the policy. *fn4

In its answer to the complaint, DAIIE denied liability based upon the affirmative defense that no coverage was available to plaintiff owing to the following exclusion clause:

"The insurance afforded by this [uninsured motorist] coverage does not apply:

"(1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, except a non-owned automobile to which there is applicable and available to such insured no ...


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