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No. 119295
| Kay
Wilkie, Personal Representative |
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Thomas
A. Doyle (517) 323-7366 |
| of the Estate of Paul K. Wilkie, Deceased, |
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| and Janna Lee Frank, |
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Jonathan E. Maire (517) 487-8300 |
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Plaintiffs-Appellees,
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| vs (Appeal
from Ct of Appeals) |
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(Clinton
-- Martlew, J.)
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| Auto-Owners Insurance Company, |
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Lori M. Silsbury (517) 374-9150 |
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Defendant-Appellant.
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Donald S. Young |
Click to view briefs in Adobe format:
Plaintiff-Appellee Janna Lee Frank's
Brief on Appeal>>
Plaintiffs-Appellee Kay Wilkie's
Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Background
Plaintiff Janna Frank was seriously injured, and her passenger Paul
Wilkie was killed, when a vehicle driven by Stephen Ward collided with
the vehicle Frank was driving. Ward was also killed in the collision.
Ward's vehicle was insured by Citizens Insurance Company under a policy
that had a $50,000 single limit of liability. The car that Frank drove
was owned by Wilkie's mother Kay Wilkie and was insured by Auto-Owners
Insurance Company. The Auto-Owners policy provided underinsured motorist
coverage with policy limits of $100,000 per person, not to exceed a
total of $300,000 per occurrence. Kay Wilkie, as personal representative
of her son's estate, and Janna Frank split the $50,000 provided under
the Citizens Insurance policy. They also sued Auto-Owners, seeking underinsured
motorist insurance benefits. Auto-Owners contended that it owed each
plaintiff $50,000 (the $100,000 Auto-Owners policy limit minus the $50,000
provided by Ward's policy). Under the policy's "limit of liability"
provision, Auto-Owners argued, the plaintiffs could only receive the
amount over "the total limits of all bodily injury liability bonds
and policies available to the owner or operator of the underinsured
automobile." The policy further states that the "Limit of
Liability is not increased because of the number of ... claims made
or suits brought [or] persons injured..." Accordingly, the $50,000
Ward policy limit should be set off against the policy limit for each
plaintiff, Auto-Owners argued. Wilkie and Frank asserted that Auto-Owners
owed each of them $75,000 (the $100,000 policy limit minus the $25,000
each actually received under Ward's policy). Clinton County Circuit
Judge Jeffrey L. Martlew ruled in favor of the plaintiffs, finding that
only the amount each actually received, and not the entire $50,000 policy
limit, should be set off against the amount each plaintiff could receive
under the Auto-Owners policy. The Court of Appeals affirmed in a published
opinion. The court held that Auto-Owner's interpretation was inconsistent
with "reasonable expectations" of coverage. The court held
that the "reasonable expectation would be that the insured has
contracted to have the amount of the policy limits available to him,
whether paid by the underinsured motorist, or by the insured's policy."
Auto-Owners appeals.
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