TRIMBLE v. SAFECO INSURANCE COMPANY OF AMERICA, 96 Mich. App. 291

Bashara, J. On April 27, 1978, plaintiffs’ daughter was struck and injured by the driver of a hit- and-run automobile. Insurance coverage for the accident was provided by the plaintiffs’ no-fault automobile policy issued by defendant, Safeco Insurance Company of America. The policy covered two vehicles owned by plaintiffs for which separate premiums were charged and collected by defendant. Compensation for hit-and-run accidents was provided by the uninsured motorist

section of the policy. The amount of uninsured motorist coverage for each vehicle was $20,000 per person and $40,-000 per accident. Plaintiffs, Arthur and Donna Trimble, as next friend of their minor daughter, Tonna Trimble, instituted this suit for a declaratory judgment in the circuit court to stack the uninsured motorist coverage of each vehicle. The court rendered a judgment allowing stacking. The trial judge found that the policy was ambiguous because it contained provisions both suggesting and limiting stacking. The ambiguity was construed in favor of the insured. From this judgment, defendant appeals.

The standard for interpreting an insurance contract has been stated many times by this Court, most recently in Citizens Ins Co of America v Tunney, 91 Mich App 223; 283 NW2d 700 (1979). Tunney requires that a court first examine the policy to determine if an ambiguity exists: "If an ambiguity does exist, the policy must be liberally construed in favor of the insured and against the insurer who drafted the policy.” Id., 228.

The provisions of the policy which the trial judge found ambiguous pertain to uninsured motorist coverage and "Condition 4” which applies to all provisions of the policy except uninsured motorists: The uninsured motorist

section provides in part: "Limits of Liability "(

a) Regardless of the number of automobiles to which this policy applies the limit of bodily injury liability stated in the declarations as applicable to 'each person’ is the limit of Safeco’s liability.” whereas "Condition 4” states: "When two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each.” The trial judge interpreted the provisions as follows: "[T]he insurance policy * * * states that the terms shall apply separately to each vehicle in all respects, except for * * * Uninsured Motorist Coverage, thus implying, if not mandating that the Uninsured Motorist Coverage on each of the two vehicles, not being applied 'separately’ to each vehicle, are to be applied non-separately, i.e. together, or stacked.” (Emphasis in original.) The court concluded that because the policy did not unambiguously prohibit stacking, the insured was entitled to stack the coverage for each automobile.

We disagree. Condition 4 of the policy does not apply to the uninsured motorist

section because the uninsured motorist provision was specific on the same subject so as to limit stacking. We also consider it anomalous to give credibility to the language which makes Condition 4 inapplicable to the uninsured motorist provision and yet hold that the negative pregnant of Condition 4 is applicable to uninsured motorist coverage. We conclude that the above provisions, when read together, do not create an ambiguity. Moreover, we find that the policy clearly prohibits stacking.

Plaintiffs next urge us to consider Judge Kaufman’s dissent in Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977), as to stacking limitations. The reasoning of that dissent, which looks to the reasonable expectations of the insured rather than the contract language, was adopted in Detroit Automobile Inter-Ins Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978).

In Kozak, supra, 785, Judge Kaufman argued that the result would be unconscionable where the insured, expecting to stack coverage, was paying additional premiums without an actual increase in the dollar amount of coverage. This argument fails to consider the fact that additional premiums may be justified by the cost of insuring a second automobile. We prefer to follow the rationale of Tunney, supra, which holds that without evidence on the underwriting predicate of an insurance policy, a court lacks adequate information to make a determination of unconscionability.

The record reveals no evidence regarding the underwriting predicate on which the dual premium was based. We conclude that "[i]n the absence of proof of double payment warranting double recovery, we will not abrogate the unambiguous contract language limiting the insurer’s liability and permit 'stacking’ ”. Tunney, supra, 229. Reversed. Costs to appellant. J. H. Gillis, J., concurred.