Appendix — O'Donnell v. State Farm Mutual Automobile Insurance

Supreme Court brief1979

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Text

‘Supreme Court, Ua

FILED

IN THE

Supreme Court of the United States

October Term, 1978

—_o ——-

No -3i" 135 19

cnannidgrenains

HEATHER ELIZABETH O’DONNELL, and KATHLEEN ANNE

O’DONNELL, MICHAEL BRENT O’DONNELL, and

TIMOTHY HUGH O’DONNELL, by their next friend,

HEATHER ELIZABETH O’DONNELL,

Appellants,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE

COMPANY, an Illinois Insurance Corporation,

Appellee.

sliiteiataiai

AN APPEAL FROM THE SUPREME COURT OF MICHIGAN

—_ ———_

JURISDICTIONAL STATEMENT APPENDIX

+

CALDER, KIRKENDALL AND LOGEMAN

ROBERT E. LOGEMAN (P23789)

Counsel for Appellants

301 West Michigan Avenue

Suite Four Hundred

Ypsilanti, Michigan 48197

EUGENE F. BLACK

Coe-counsel for Appellants

2700 Strawberry Lane

Port Huron, Michigan 48060

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, MI 48226

962-8745 962-8746

'

w

TABLE OF CONTENTS

Page

Michigan Supreme Court Opinion

NEOreY DURIOM 20 ines ccc ccencensececens Al

Dissenting Opinions ........cncccccrecnseces A20

Michigan Supreme Court January 4, 1979,

og Gere rr reer ree A64

Michigan Supreme Court March 8, 1979, Order

Denying Rehearing ...............ceeeeeeees A65

Michigan Court of Appeals Opinion

Majority Opinions ......cccccccsscccceees A66,A73

Dissenting Opinions ... 0. cvccccssccsnevcess A76

Trial Court Order Granting Defendant a

Summary Judgment .........cccccccsccceeves A83

Notice of Taking Appeal to the Supreme Court of

Uae CITRON HORNED nn cece s secre nnnevccevases A85

Affidavit of Service Regarding Notice of Taking

PINE 6 ince ts Seccbearecesectaeheneccdveticess A87

Constitutional Provisions and Statutes Involved . A89

US Compt Amt MEV, Sec 2... ccs cccnvcccccescess A89

ee 3 | eee ree eer rer rere reer e A89

NOUN wes coop Cp he ce Disaesengh vies A89-A90

MCLA 500.3105(1), (2), (3)... cccvcccccvcccvvnes A90

GA OU DOU ccc svsnencsrsecscctavesecsates A91

Oe ID c orecc es cenecensstocrencres A91-A92

ee ea. ee rare A92

Page

1973 N.Y. Laws, Chp. 13 §671(2)(b) ............. A92

1974 Pa. Laws, Ne. 176, G20Gfa) 2... osc csccccees A93

1973 Hawaii Sess. Laws, Act 203, Sec. 294-5 ..... A93

1973 Nev. Stats, Vol 1, Chapter 530, §12, §33 .... A94

ISVS Ky. Acts, Chp. S55 GENE) oo. ce csncccccuns A94

1973 N.J. Laws, Chapter 70, §6 ..............0.. A95

1973 Utah Laws, Chap. 55, §7(3) .............45. A95

1971 Fla. Laws, Vol 1, at p. 1361-1362 ........... A95

H.R. 1597, 95th Cong., Ist Sess. (1977), §210,

DP. FF oc ccanevdVeceseeeu wee sak ane A%

S. 354, 94th Cong., 2d Sess. (1975) §208, p. 90-91. A%6

H.R. 5149, 95th Cong., Ist Sess. (1977) §208,

DD. GHGS 2 ois weicniace du us oun Cee A%-A97

H.R. 2300, 95th Cong., Ist Sess. (1977) §2(16),

a ge SETTTEAT Ee ee A97

H.R. 2508, 95th Cong., Ist Sess. (1977) §3(9),

he SEETETEET r A97,A98

H.R. 13048, 95th Cong., 2d Sess. (1978) §109,

a SETTER A99

S. 1381, 95th Cong., 2d Sess. (1977) §109, p. 41-42 A99

IN THE

Supreme Court of the United States

October Term, 1978

inti

No. ---

icine

HEATHER ELIZABETH O’DONNELL, and KATHLEEN ANNE

O’DONNELL, MICHAEL BRENT O’DONNELL, and

TIMOTHY HUGH O’DONNELL, by their next friend,

HEATHER ELIZABETH O’DONNELL,

Appellants,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE

COMPANY, an Illinois Insurance Corporation,

Appellee.

—_e ———_

AN APPEAL FROM THE SUPREME COURT OF MICHICAN

———_o ——_

JURISDICTIONAL STATEMENT APPENDIX

°

Al

OPINION

(State of Michigan

Supreme Court

(Filed January 4, 1979)

HEATHER ELIZABETH O’DONNELL and

KATHLEEN ANNE O’DONNELL, MICHAEL BRENT

O’DONNELL and TIMOTHY HUGH O’DONNELL, by

their next friend, HEATHER ANNE O’DONNELL,

Plaintiffs-Appellees, v STATE FARM MUTUAL

AUTOMOBILE INSURANCE COMPANY, an _ Illinois

Insurance Corporation, Defendant-Appellant. No 58833.

BEFORE THE ENTIRE BENCH

M. S. COLEMAN, J. (To reverse)

Section 3109(1)' of the Michigan No-Fault Insurance

Act? requires that the amount of benefits payable i nder

any no-fault insurance policy must be reduce’ by the

amount of benefits payable to a beneficiary by the state

or Federal government, but it does not also require an

analogous set-off of benefits payable to a beneficiary by

private health or accident insurance programs, which

persons may voluntarily add to the basic no-fault

insurance. The principal question presented is whether

§ 3109(1) discriminates against the recipients of

government benefits in violation of the Equal Protection

Clause of the state or Federal constitutions.* The Court

of Appeals ruled in a 2 to 1 decision that § 3109(1) was

unconstitutional.* We reverse the decision of the Court

of Appeals. The Legislature’s judgment that the

recipients of private benefits should be treated

differently from the recipients of government benefits is

supported by a rational basis and should therefore be

A2

sustained. This distinction rationally promotes the

legitimate legislative objectives of enabling persons

with economic needs and/or wages exceeding the

maximum benefits permitted under the No-Fault Act to

obtain the supplemental coverage they need and of

placing the burden of such extra coverage directly on

the shoulders of those persons, instead of spreading it

throughout the ranks of no-fault insureds.

A subsidiary question is whether § 3109(1) requires a

set-off of Federal social security survivors’ benefits such

as those received by the plaintiffs as a result of

decedent's death and, if so, whether this is totally

arbitrary and thus violative of the Due Process Clause

of the state or Federal constitutions.» We conclude that

§ 31091) does require a set-off of these government

benefits but is not arbitrary because the benefits are

paid as a result of the same accident and duplicate in-

varying degrees the no-fault benefits otherwise due. All

persons who receive redundant gavernment survivors’

benefits arising from one accident are treated the same

and all are guaranteed a maximum survivor's loss

benefit of $1000 per month for three years. It therefore

does not violate the Due Process Clause of the state or

Federal constitutions.

This opinion is confined to the facts before the Court

and does not purport to encompass other possible

government benefits.

I

Plaintiffs’ decedent was killed in an automobile

accident in 1974. Plaintiffs qualified for survivors’

benefits under certain subdivisions of § 402° of the

Federal Social Security Act? which provide for the

A3

payment of secondary benefits to the dependents of a

wage earner who is fully qualified to receive primary

social security benefits at the time of death.® Plaintiffs

also qualified for survivors’ benefits under the no-fault

insurance policy issued by the defendant to the

decedent.

Section 3109(1) of the No-Fault Act requires the

subtraction of government benefits from no-fault

benefits otherwise due:

“Benefits provided or required to be provided

under the laws of any state or the federal

government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.’””

The no-fault policy, issued by the defendant to the

decédent. incorporated this legislatively mandated

provision: ~~

“Any amount payable by the company under the

terms of this insurance shall be reduced by (a)

the amount paid, payable or required to be

provided under the laws of any state or the

federal government* * *.”"!”

Pursuant to this provision, the defendant subtracted

the amount of survivors’ benefits payable by the

Federal government to the plaintiffs from the amount of

survivors’ benefits payable under the decedent's

no-fault policy and sent the plaintiffs a monthly check

for the difference. The actual amount received by the

plaintiffs from the Federal government and the

defendant totaled $1000 per month, the maximum

amount authorized by § 3108'' of the No-Fault Act.

A4

Plaintiffs sued the defendant in circuit court, alleging

a breach of the insurance contract and contending that

§ 3109(1) violated the Due Process and Equal Protection

Clauses of the Michigan and United States

Constitutions. The Circuit court granted a defense

motion for summary judgment. The plaintiffs appealed

to the Court of Appeals and that court reversed in a 2 to

1 decision, the majority declaring that § 3109(1) was

unconstitutional.'? The defendant appealed and we

granted leave to appeal. )

I]

In Shavers v Attorney General, 402 Mich 554; 267

NW2d 72 (1978), Justice Williams explained the proper

approach this Court must take when confronted with an

equal protection or due _ process challenge to

socioeconomic legislation such as the No-Fault Act:

“[I]n the face of a due process or equal

protection challenge, ‘where the legislative

judgment is drawn in question’, a court’s

inquiry ‘must be restricted to the issue whether

any state of facts either known or which could

reasonably be assumed affords support for it’.

United States v Carolene Products Co, 304 US 144,

154; 58 S Ct 778; 8&2 L Ed 1234 (1938).

* * *[W]here the legislative judgment is supported

by ‘any state of facts either known or which could

reasonably be assumed’, although such facts may

be ‘debatable’, the legislative judgment must be

accepted. Carolene Products Co v Thomson, 276

Mich 172, 178; 267 NW 608 (1936).’’'4

Ina

A5

footnote at the very end of this passage, further

guidance was offered as to the limited nature of the

Court’s role:

The

‘See Ferguson v Skrupa, 372 US 726, 730-731; 83

S Ct 1028; 10 L Ed 2d 93 (1963), where the

United States Supreme Court stated:

“‘TCJourts do not substitute their social and

economic beliefs for the judgment of legislative

bodies, who are elected to pass laws. As this

Court stated in a unanimous opinion in 1941,

“we are not concerned * * * with the wisdom,

need, or appropriateness of the legislation.”

Legislative bodies have broad scope to

experiment with economic problems * * *. We

refuse to sit as a ‘super-legislature to weigh the

wisdom of legislation’’.’ ’’'®

proper test for judging socioeconomic legislation

such as the No Fault Act was also stated in Shavers

4

“The test to determine whether legislation

enacted pursuant to the police power comports

with due process is whether the legislation bears

a reasonable relation to a permissible legislative

objective. See Michigan Canners v Agricultural

Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976).

‘The test to determine whether a statute enacted

pursuant to the police power comports with

equal protection is, essentially, the same. As the

United States Supreme Court declared in United

States Dep't of Agriculture v Moreno, 413 US 528,

533; 93 S Ct 2821; 37 L Ed 2d 782 (1973):

“Under traditional equal protection analysis,

a legislative classification must be sustained, if

the classification itself is rationally related to a

legitimate governmental interest.’ “’'®

A6

This test recognizes and preserves the constitutional

principle of separation of powers, which forms the

fundamental framework of our system of government.

Its purpose is to make certain that the judiciary does

not substitute its judgment for that of the Legislature as

to what is best or what is wisest. So long as the

Legislature’s judgment is supported by a rational or

reasonable basis, the choices made and the distinctions

drawn are constitutional. The United States Supreme

Court and our Court have instructed:

“If the classification has some ‘reasonable basis’,

it does not offend the Constitution simply

because the classification ‘is not made with

mathematical nicety or because in practice it

results in some inequality’. * * * ‘The problems

of government are practical ones and may

justify, if they do not require, rough

accommodations* * *’ ”’.!7

“If it be said, the law is unnecessarily severe,

and may sometimes do injustice, without fault in

the sufferer under it, our reply is: these are

considerations that may very properly be

addressed to the legislature, but not to the

judiciary — they go to the expediency of the

law, and not to its constitutionality.”’'8

The responsibility for drawing lines in a society as

complex as ours — of identifying priorities, weighing

the relevant considerations and choosing between

competing alternatives — is the Legislature’s, not the

judiciary’s. Perfection is not required:

[T]he drawing of lines that create distinctions is

peculiarly a legislative task and an unavoidable

one. Perfection in making the necessary

classifications is neither possible’ nor

necessary.’’!”

A7

Nor is it necessary that the Legislature deal with

every aspect of a problem at the same time:

‘“TW]e are guided by the familiar principles that

a ‘statute is not invalid under the Constitution

because it might have gone farther than it did,’

* * * that a legislature need not ‘strike at all evils

at the same time,’ * * * and that ‘reform may

take one step at a time, addressing itself to the

phase of the problem which seems most acute to

the legislative mind’ * * *.’’7°

In short, we do not sit ‘‘as a superlegislature to judge

the wisdom or desirability of legislative policy

determinations’’.2! We sit as a court to determine

whether there is a rational basis for the Legislature’s

judgment. If there is, then that judgment must be

sustained:

“It is not this Court’s role to decide whether the

Legislature acted wisely or unwisely in enacting

this statute. We will not substitute our own

social and economic beliefs for those of the

Legislature, which is elected by the people to

pass laws.’’??

Ill

In order to facilitate analysis of whether 3 3109(1)

violates the Equal Protection Clause of the state or

Federal constitutions, we will first discuss the question

of whether it requires a set-off of the social security

survivors’ benefits received by the plaintiffs and, if so,

whether this violates the Due Process Clause of the

state or Federal constitutions.

A8

Section 3109(1) states:

‘Benefits provided or required to be provided

under the laws of any state or the federal

government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.’’?5

One of the most important principles of statutory

interpretation is that the words of the statute should be

construed in light of the Legislature’s intent. See, e.g.,

Moore v Department of Military Affairs, 398 Mich 324;

247 NW2d 801 (1976). The history of § 3109(1) indicates

that the Legislature’s intent was to require a set-off of

those government benefits that duplicated the no-fault

benefits payable because of the accident and thereby

reduce or contain the cost of basic insurance.

In a letter to the Governor from the Commissioner of

Insurance analyzing a series of proposed no-fault bills

introduced in 1971, none of which contained a set-off

provision, the Commissioner criticized the bills because

they tended to “increase the duplication and overlap

between auto insurance and other insurance programs,

sick leave programs and social security’’.2* Subsequent

bills did contain set-off provisions.?> The final version

of § 3109(1) was similar to an amendment suggested by

the Commissioner.?° According to the Commissioner,

the purpose of the amendment was “to provide a more

complete and effective coordination of benefits between

Michigan auto insurance and the benefits provided by

the laws of all the states and the federal government’’.?”

As noted by Justice Williams in his opinion in this

case, the Commissioner’s comments ‘make clear that

the: purpose of the § 3109(1) statutory scheme was

framed in terms of maintaining or reducing premium

costs for all insureds through the elimination of

duplicative benefits recovery’’.?8

A9Y

The survivors’ benefits received by the plaintiffs

pursuant to § 402 of the Federal Social Security Act

duplicated the survivors’ benefits they received

pursuant to the decedent’s no-fault insurance policy.

The survivors’ benefits received pursuant to the no-fault

policy were paid as a result of the decedent’s death and

were based on § 3108 of the No-Fault Act, which states:

“Personal protection insurance ‘benefits are

payable for a survivors’ loss which consists of a

loss, after the date ‘on which the deceased died,

of contributions of tangible things of economic

value, not including services, that dependents of

the deceased at the time of his death would have

received for support during their dependency

from the deceased if he had not suffered the

accidental bodily injury causing death” * *.’’°”

The survivors’ benefits received pursuant to § 402 of the

Social Security Act were likewise paid as a result o the

decedent’s fatal accident and served substantially the

same purpose as the no-fault benefits:

“As originally enacted in 1935, the Social

Security Act authorized a monthly benefit for

qualified wage earners at least 65 years old and a

death benefit payable to the estate of a wage

‘ earner who died at an earlier age. 49 Stat

622-624. In 1939 Congress created secondary

benefits for wives, children, widows, and parents of

wage earners. See 53 Stat 1362, 1364-1366. The

benefits were intended to provide persons dependent

on the wage earner with protection against the

economic hardship occasioned by loss of the wage

earner’s support. Mathews v DeCastro, 429 US 181,

185-186. Generally speaking, therefore, the

categories of secondary beneficiaries were

Al0

defined to include persons who were presumed

to be dependent on the wage earner at the time

of his death, disability, or retirement.’’

(Emphasis added.)*”

Thus, the benefits received by the plaintiffs from the

Federal government fell within the scope of § 3109(1)’s

set-off.

This set-off is not arbitrary ana it does have a rational

basis. It promotes the valid legislative objectives of

insuring payment for economic loss up to $1000 per

month for three years and of attempting to reduce or

contain the cost of no-fault insurance by eliminating

some of the benefit duplication that would otherwise

occur. The means chosen, a set-off of duplicative

government benefits, is rationally related to that end. It

reduces the amount that the insurance companies must

pay out, making it possible for them to reduce the

amount that they must charge, and it does so only in

those situations where the benefits are redundant.

Thus, as in the case at bar, all beneficiaries are eligible

for up to $1000 per month for three years of survivors’

benefits to compensate for their loss. Social security

survivors’ benefits are never interrupted. Having a

rational basis, § 3109(1) does not violate the Due

Process Clause of the state or Federal constitutions.

IV

The remaining question is whether § 31091)

discriminates against the recipients of government

benefits in violation of the Equal Protection Clause of

the State or Federal constitutions.

It is undisputed that § 3109(1) treats the recipients of

government benefits differently than it treats the

recipients of private health or accident insurance

All

benefits. It does not require that private benefits be set

off against no-fault benefits otherwise due. Unlike the

government benefit recipient, the recipient of private

benefits can receive full no-fault survivors’ benefits up

to the maximum of $1000 per month, plus full private

benefits as well.

The mere fact that the Legislature has chosen to draw

a distinction between government benefit recipients

and private benefit recipients does not mean that

§ 3109(1) is unconstitutional. If this distinction is

supported by a rational basis, then it passes

constitutional muster.

The Legislature had to wrestle with several competing

considerations when it was deciding whether the act

should contain any set-offs and, if so, what kind of

set-offs it should encompass.*! Because the first party

insurance proposed by the act was to be compulsory, it

was important that the premiums to be charged by the

insurance companies be maintained as low as possible.

Otherwise, the poor and the disadvantaged people of

the state might not be able to obtain the necessary

insurance. Thus, there was a viable need for cost

cutting measures of some kind. Set-offs were one

possibility. Another consideration was that the $1000

per month maximum established by § 3108 would leave

many persons with econumic losses and needs greater

than that amount without adequate compensation.

Large families would be especially hard hit by this cap

on survivors’ benefits. Of course, the maximum

recovery could be raised to some higher amount, but

this would increase the cost of the program and spread

higher premiums over all purchasers.

Al2

Faced with this dilemma, the Legislature chose to

experiment with a compromise solution. First, all

persons would be guaranteed up to $1000 per month

survivors’ loss benefits under § 3108. This would

provide adequate compensation for most people.

Second, by virtue of § 3109(1), duplicative government

benefits would be set off against no-fault benefits

otherwise due. This would make it possible for all

persons needing no-fault insurance to obtain it at less

cost. Third, no set off would be required for private

health or accident insurance benefits. This would

enable the persons with incomes or needs exceeding

$1000 per month to purchase the extra coverage their

families required by paying extra premiums without the

hardship of (1) purchasing no-fault insurance, for the

basic $1000 coverage and (2) purchasing another $1000

coverage to be set off against the basic insurance and

then finally (3) purchasing whatever amount of private

insurance in excess of that set-off $1000 required to

cover income loss and family needs — all to be

purchased with after tax — as opposed to tax — dollars.

It was finally resolved that these persons with extra

needs would directly bear the burden of those needs;

none of that burden would be borne by the no-fault

system. The payment of extra premiums would pay in

full for the extra coverage. Therefore, there would be no

discrimination in this totally voluntary option.

This solution promotes several valid legislative

objectives. It attempts to reduce the cost of basic

no-fault insurance for everyone and make it possible for

most persons to obtain most of the coverage they need.

(It could, in fact, be discriminatory to prevent it.)

Section 3109(1), the means chosen by the Legislature, is,

as outlined above, rationally related to these legitimate

objectives.

Al3

It is not necessary that we agree with the wisdom of

the judgments made by the Legislature in order to

uphold this section of the act. (We may or we may not

agree, but that makes no difference.) Nor is it necessary

that the supposed beneficial effects envisioned by the

Legislature be verified at this time. As stated just a few

months ago in Shavers with respect to other supposed

benefits of the act:

“The fact that these effects are not yet evident

does not diminish the legitimacy of the goals

sought to be achieved or the reasonableness of

the means adopted. At this early stage in the

functioning of the No-Fault Act these long-term

developments cannot yet fully be assessed.

Indeed, this litigation itself, with its resulting

uncertainty as to the viability of the No-Fault

Act, may slow the achievement of the act’s goals.

Our decision in Manistee Bank, supra, is

particularly relevant to this aspect of the case: it

is precisely because regulation in the economic

field often deals with long-term developments

that the Court treats such legislation with great

deference’’*?

In time the Legislature may decide that the benefits

originally associated with §3109(1) have not

materialized or that although they have materialized

they are not worth the social and economic costs.

However, the rational basis for the distinctions drawn

by the Legislature between the recipients of

government benefits and the recipients of private

benefits — primarily the desire to make it possible for

persons with requirements exceeding the benefits

assured by the No-Fault Act to obtain the extra

coverage they need without burdening other no-fault

insurance purchasers — requires us to hold that

§ 3109(1) is constitutional.

Al4

Vv

Section 3109(1) did not attempt to address the

problem of overlapping no-fault and private health or

accident insurance benefits. Soon after the No-Fault Act

was passed by the Legislature, however, an attempt

was made to fine tune the set-off provisions so that this

kind of duplication could be reduced while still

permitting persons with needs exceeding the benefits

provided by no-fault insurance to obtain the extra

coverage they required. The Legislature enacted

§ 3109a3 which states:

“An insurer providing personal protection

insurance benefits shall offer, at appropriately

reduced premium rates, deductibles and

exclusions reasonably related to other health and

accident coverage on the insured. The

deductibles and exclusions required to be offered

by this section shall be subject to prior approval

by the commissioner and shall apply only to

benefits payable to the person named in the

policy, the spouse of the insured and any

relative of either domiciled in the same

household.”

Althought the Legislature did not choose to make this

set-off mandatory, as it had done with § 3109(1)’s

government benefit set-off, this distinction is justified

by the perceived necessity of making it possible for

persons with greater needs to obtain the coverage they

require and pay reduced rates on the no-fault insurance

through deductibles and exclusions approved by the

commissioner. That some persons can still slip through

the colander of § 3109a and receive additional benefits

does not mean the statute is unconstitutional.

Mathematical precision is neither possible nor required.

Al5

Section 3109a promotes the valid legislative objeciive

of reducing duplicative benefits; the means chosen is

rationally related to that end; and the distinctions

drawn are supported by a rational basis. This statute is

also constitutional.

VI

Our brethren have raised the specter of Boettner v

State Farm Mutual Insurance Co, 388 Mich 482; 201

NW2d 795 (1972), and Blakeslee v Farm Bureau Mutual

Insurance Co, 388 Mich 464; 201 NW2d 786 (1972), in a

footnote to their opinion.*+ Neither of these cases was

raised in the application for leave to appeal or briefed

by any of the numerous parties who have participated

in this case — and for good reason. Both are inapposite

to the case. The question in each was whether certain

set-off provisions created by insurance companies

violated the Legislature’s statutorily declared public

policy in favor of full recovery. In the case at bar, the

Legislature has statutorily declared that the public

policy of this state now favors certain set-offs. We have

no authority to invalidate that legislative decision so

long as it is supported by some rational basis.

Vil

In Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L

Ed 2d 231 (1971), the United States Supreme Court was

faced with a challenge to a statute similar to th

challenge that we face today. The Federal Social Security

Act required a set-off of worker’s compensation benefits

from the social security benefits otherwise due, but did

not also require an analogous set-off of private benefits.

Al6

The plaintiff claimed this distinction violated the equal

protection guarantee implicit in the Due Process Clause

of the Federal constitution. The Court found that there

was a rational basis for the distinction and affirmed the

constitutionality of the set-off. The Court’s closing

words provide an appropriate conclusion for the case at

bar:

“We have no occasion, within our limited

function under the Constitution, to consider

whether the legitimate purposes of Congress

might have been better served by applying

the same offset to recipients of private insurance,

or to judge for ourselves whether the

apprehensions of Congress were justified by the _

facts. If the goals sought are legitimate, and the

classification adopted is rationally related to the

achievement of those goals, then the action of

Congress is not so arbitrary as to violate the Due

Process Clause of the Fifth Amendment.’’35

Reverse. No costs, a public question being involved.

s' Mary S. Coleman

‘s/ James L. Ryan

s) Thomas Giles Kavanaugh

s) Charles L. Levin

Al7

OPINION FOOTNOTES

' MCL 300.3109(1); MSA 24.13109(1).

+ 70 Mich App 487; 245 NW2d 801 (1976).

5 Const 1963, art 1, § 17; US Const, AM XIV.

® 42 USC 402.

7 42 USC 401 et seq.

* The pleadings do not indicate the specific subdivisions of

§ 402 under which the plaintiffs qualified for secondary benefits. We

assume that they qualified under subdivision e, widow's benefits,

andor subdivision g, mother’s benefits.

* MCL 500.3109(1); MSA 24.13109(1).

‘0 Appellant's appendix, p 12a.

't MCL 500.3108; MSA 24.13108.

Al18

12 70 Mich App 492-500; 245 NW2d 802-806.

13 397 Mich 848 (1976).

14 Shavers, supra, 613-614.

'S Id, fn 38, p 614.

‘© Id, 612-613.

17 Dandridge v Williams, 397 US 471, 485; 90S Ct 1153; 25 L Ed 2d

491 (1970); Weinberger v Salfi, 422 US 749, 769; 95S Ct 2457; 45 L Ed

2d 522 (1975).

18 Sears v Cottrell, 5 Mich 250, 254 (1858).

'‘% Massachusetts Board of Retirement v Murgia, 427 US 307, 314; 96

S Ct 2562; 49 L Ed 2d 520 (1976), Ohio Bureau of Employment Services

v Hodory, 431 US 471, 489; 97 S Ct 1898; 52 L Ed 2d 513 (1977).

20 Katzenbach v Morgan, 384 US 641, 657; 86 S Ct 1717; 16 L Ed

2d 828 (1966), New Orleans v Dukes, 427 US 297, 305; 96 S Ct 2513;

49 L Ed 2d 511 (1976).

21 New Orleans v Dukes, supra, 303.

22. McAvoy v HB Sherman Co, 401 Mich 419, 439; 258 NW2d 414

(1977).

Al9

23) MCL 500.3101(1); MSA 24. 13109(1).

24 Gretzinger, O'Donnell v State Farm Mutual Insurance Co: A

Judicial Attempt to Amend Michigan's No-Fault Act, 1977 DCL Rev 187,

192, fn 36.

25 Id., 192-193.

28 Opinion of Williams, J, p— fn 13.

2% MCL 500.3108; MSA 24.13109.

30 Califano v Jobst, 434 US 47, 50; 98 S Ct 95; 54 L Ed 2d 228

(1977).

31 See, generally, A Judicial Attempt to Amend Michigan's No Fault

Act, supra, 192-195.

32 Shavers, supra, 628-629.

33 MCL 500.3109a; MSA 24.13109(1).

34 Opinion of Williams, J, p ——, fn 20.

38 Richardson, supra, 84.

A20

OPINION

(State of Michigan

Supreme Court)

Heather Elizabeth O’Donnell, and Kathleen Anne

O’Donnell, Michael Brent O’Donnell and Timothy Hugh

O’Donnell, by their next friend, Heather Elizabeth

O’Donnell, Plaintiffs-Appellees, v State Farm Mutual

Automobile Insurance Company, an Illinois insurance

corporation, Defendant-Appellant. No. 58833

BEFORE THE ENTIRE BENCH

WILLIAMS, J.

This summary judgment case squarely raises both the

facial equal protection and due process! viability of

§ 3109(1) of the No-Fault Insurance Act,? MCL 500.3101,

et seq.; MSA 24.13101, et seq. Section 3109(1), commonly

referred to as the governmental ‘set-off’ provision,

reads as follows:

“(1) Benefits provided or required to be provided

under the laws of any state or the federal government

shall be subtracted from the personal protection

insurance benefits otherwise payable for the injury.’

MCL 500.3109; MSA 24.13109.

A similar set-off, however, is not likewise mandated

with respect to an insured’s directly financed private,

collateral insurance benefits.* As federal Social Security

survivors’ benefits supported by wage deductions are at

issue in this case, we are not called upon to determine

whether a set-off of free governmental transfer

payments is constitutionally permissible.

The present controversy arose when defendant

no-fault insurer sought to reduce its liability on the

A21

no-fault fund due plaintiffs, the no-fault insured’s

statutory dependents, by the amount of federal Social

Security survivors’ benefits for which contributions had

been made through Social Security wage deductions. 5

Plaintiffs first contend that the § 3109(1) statutory

scheme operates to deny equal protection of the laws to

the arbitrarily drawn class of governmental benefit

no-fault insureds. Distilled to its essence, plaintiffs’

argument proceeds as follows. All no-fault insureds pay

the same premium dollar for presumably identical

no-fault coverage. No-fault insureds entitled to the

receipt of certain governmental benefits, particularly

federal Social Security survivors’ benefits, monetarily

contribute to that governmental insurance system.°

No-fault insureds entitled to the receipt of private,

collateral insurance benefits likewise monetarily

contribute to that private insurance system. Further, the

nature of those injuries compensable by the

governmental insurance system are frequently also

compensable by funds emanating from the private

insurance system. Based on these premises shared by

both governmental and private, collateral insureds,

plaintiffs conclude their syllogism with the contention

that § 3109(1) affords these two artificially created

classes of similarly situated no-fault insureds widely

divergent treatment without rational basis, as the

disputed statutory scheme mandates the set-off of

certain collateral benefits while not requiring the set-off

of other similar collateral benefits solely on the basis of

the source or fund from which those benefits spring. In

short, plaintiffs contend that there exists no significant

difference between a contributory governmental benefit

program and a contributory private benefit program;

both, therefore, should be treated similarly.

A22

Formulating their analysis with reference to the

traditional equal protection test, plaintiffs elaborate that

there exists no rational relation between these two

legislatively created classes of no-fault beneficiaries, on

the one hand, and the admittedly permissible legislative

purposes of duplicative benefit elimination or pre-

mium cost reduction, on the other, sufficient to

constitutionally uphold the difference in treatment

afforded these two similarly situated classes under this

scheme. Plaintiffs allege that this conclusion is

inescapable as duplicative benefit elimination is neither

realized practically nor legally through the operation of

§ 3109(1) since the private beneficiary is permitted to

retain duplicative benefits. Further, since the

legisiatively desired reduction in premium rates, if any,

flows equally to both classes of no-fault insureds, its

achievement is discriminately borne exclusively by the

governmental benefit class of no-fault beneficiaries.

Plaintiffs additionally contend that § 3109(1) denies

governmental benefit no-fault beneficiaries due process

of law insofar as it mandates the set-off of all

governmental benefit paid for by the recipient whether

or not that benefit is casualty related as no-fault is. It is

plaintiffs’ position that this statutory scheme does not

bear a reasonable relation to an otherwise admittedly

permissible legislative purpose. For example, according

to its literal language; § 3109(1) would permit the set-off

of a contributory governmental longevity pension

benefit against a no-fault casualty benefit which is

patently not duplicative of the longevity award.

Our opinion, in its simplest form, concludes that it is

neither logical nor constitutionally permissible to either

eliminate benefit duplication or accomplish premium

reduction by subtracting personally paid-for Social

A23

Security survivors’ benefits from personally paid-for

no-fault benefits while not likewise requiring a

subtraction of analogous, personally paid-for private

insurance benefits. We reach this conclusion on the

following specific grounds: (i) § 3109(1) requires the

reduction of alleged duplication in a_ patently

discriminatory manner as it focuses its burden solely on

one class of similarly situated no-fault insureds; (ii) the

disputed statutory scheme operates to place the burden

of commonly shared premium cost reduction, if any, on

the Social Security survivor beneficiary class alone; and

(iii) there exists no rational basis for subtracting

paid-for longevity benefits from a _ paid-for casualty

benefit since in no sense are such paid-for benefits

duplicative. In reaching this conclusion, we are mindful

that we are not dealing with the elimination of

duplicative ex gratia governmental transfer payments.

We agree that, while a superficial distinction may

exist between a contributory governmental insure nce

system and a contributory private insurance system,

there exist no logically distinguishable characteristics

relevant to the permissible legislative judgment which

constitutionally justify the disparate treatment afforded

those persons receiving collateral governmental

benefits, where both classes have received a common

premium reduction, if any, and both, at least in the

case of federal Social Security survivors’ benefits, have

made payments to secure the coverage authorizing the

governmental and private benefits. See 42 USC 401. As

such, the § 3109(1) statutory scheme is facially

unconstitutional insofar as it creates two differently

treated classes based solely on the source from which

the collateral compensation emanates. We, therefore,

affirm the Court of Appeals’ reversal of the trial court’s

grant of summary judgment to defendant insurer with

respect to the constitutionality of this scheme.

A24

es:

FACTS

Gary O'Donnell was fatally injured in an automobile

collision on February 19, 1975. Plaintiffs are the wife

and children of decedent.

The decedent was insured under a “no-fault’’

automobile policy issued by defendant State Farm

Mutual Automobile Insurance Company, pursuant to

the Michigan No-Fault Insurance Act, 1972 PA 294

(hereinafter referred to as the “No-Fault Act” or “the.

Act’).

Plaintiffs are dependents of decedent for purposes of

Social Security survivors’ benefits under defendant's

insurance policy as well as under § 3110 of the No-Fault

Act.8

Decedent's insurance policy with defendant provided

that plaintiffs, as dependents, were entitled to recover

survivors’ benefits not to exceed $1,000 per 30-day

period. Section 3]08 of the No-Fault Act® provides that

plaintiffs are entitled to a maximum survivors’ benefits

recovery of $1,000 per 30-day period for three years

following decedent's death.

Decedent's insurance policy further provided, in

relevant part, that:

“(5) Any amount payable by the company

under the terms of this insurance shall be

reduced by (a) the amount paid, payable or

required to be provided under the laws of any

state or federal government; * * *”’ (See

Appellant’s Appendix, p 12a)

This reduction in payments mandated by paragraph

(5) (a) of defendant's insurance policy is similarly

A25

et

mandated by § 3109(1) of the No-Fault Act, which

states: ’

“Benefits provided or required to be provided

under the laws of any state or the federal

government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.” MCL 500.3109(1); MSA

24.13109(1).

Plaintiffs qualified for federal Social Security

survivors’ benefits totaling $556 per month. Pursuant to

both paragraph (5) (a) of the insurance policy and

§ 3109(1) of the No-Fault Act, defendant reduced

plaintiffs’ $1000-maximum recoverable personal

protection insurance benefits by $556 (the amount of

federal Social Security survivors’ benefits owing

plaintiffs) and paid plaintiffs $444 per month. During

the pendency of this litigation, plaintiffs’ survivors’

benefits have increased approximately 35% thereby

reducing defendant's no-fault liability to $243.20 per

month (Appellee’s Brief, p 2).

Plaintiffs filed a two-count complaint in circuit court.

Count I alleged that defendant had breached the

insurance contract by not paying plaintiffs the full

$1,000 per month in benefits (Appellant's Appendix, pp

2a-5a). Count II requested declaratory judgment with

respect to the question of whether the statutory scheme

relating to § 3109 of the No-Fault Act violated the due

process and equal protection clauses of the Michigan

and United States Constitutions. Plaintiffs’ complaint

requested declaratory relief as follows:

“a That MCLA 500.3109 is a denial of due

process of law as provided in the Fifth and

Fourteenth Amendments to the United States

Constitution and Article I, Section 17 of the

A26

Michigan Constitution for the reason that said

act bears no reasonable relationship to the

purpose of the act and that said act deprives

those who are receiving governmental benefits

from receiving the no fault benefits for which

premiums were paid.

“b. That MCLA 500.3109 is a denial of equal

protection * * * for the reasons that said act is

arbitrary and discriminatory in that it creates

two different classes (governmental benefit

recipients and non governmental benefit

recipients) solely upon the source from which

the extra compensation is paid.”

Defendant moved for summary judgment on both

counts; defendant did not file supporting affidavits. The

trial court properly restricted its inquiry to whether the

complaint failed to state a claim upon which relief could

be granted. GCR 1963, 117.2(1).

The trial court granted defendant's motion for

summary judgment. The court held in its order:

“1. That Count I of Plaintiffs’ Complaint fails

to state a cause of action for the reason that

Plaintiffs’ Complaint fails to state facts which

allege that the Defendant breached any of the

provisions of said contract.

“2. That Count II of Plaintiffs’ Complaint

iails to state a cause of action in that State Farm

Mutual Automobile Insurance Company, in

entering a contract of insurance which conforms

to the requirements of The Michigan Statutes,

and in particular MCLA 500.3109, is not itself

engaged in state action; consequently, any claim

that the contract is itself unconstitutional is

unsupportable as a matter of law.” (Appellant's

Appendix, pp 14a- 15a)

A27

On August 4, 1976, the Court of Appeals in separate

opinions written by Judge T. M. Burns and Judge V. J.

Brennan (Presiding Judge Bashara dissenting) affirmed

the trial court’s summary judgment as to Count I and

reversed the trial court’s grant of summary judgment as

to Count II. Although referring to ‘‘a fundamental due

process issue’ inherent in the statutory scheme under

§ 3109(1), the majority opinions essentially concentrated

on plaintiffs’ equal protection challenge. The thrust of

the Court of Appeals holding was that the classification

matrix created by the statutory scheme of § 3109(1) —

allowing the full receipt of both no-fault personal injury

protection insurance benefits and private insurance

benefits to one class of persons while deducting from

the no-fault personal injury protection benefits of

another class of persons any benefits received under the

laws of any state or the federal government — did not

bear a rational relationship to a “‘legitimate purpose”

and arbitrarily discriminated ‘‘against those who recive

certain governmental benefits”. 70 Mich App 487, 498.

Judge Bashara, in his dissent, would: (1) uphold the

trial.court’s ruling as to Count I of plaintiffs’ complaint;

(2) overrule the trial court’s ruling that there was no

“state action” involved in this case; and (3) hold that,

with respect to the constitutional questions raised by

plaintiffs, ‘‘the proper procedure is to remand to the

trial judge’. 70 Mich App 487, 503.

Defendant appealed the Court of Appeals decision.

On August 27, 1976, this Court granted defendant leave

to appeal and ordered such appeal to be submitted to

this Court with Shavers v Attorney General, 402 Mich

554; 267 NW2d 72 (1978). In light of our detailed

consideration of the no-fault insurance scheme

undertaken in Shavers, we are now prepared to decide

this case on grounds of facial unconstitutionality.

A28

I.

GENERAL ISSUES PRESENTED

After a thorough review of the exhaustive pleadings

submitted in this case, we perceive the following

issues:

(1)

(2)

(3)

whether the trial court erred in granting for

defendant a summary judgment with respect to

Count I of plaintiffs’ complaint (alleging that

defendant had breached the insurance contract

in issue by not paying to plaintiffs $1,000 per

month in benefits) on the ground that

Plaintiffs’ Complaint fails to state facts which

allege that the Defendants breached any of the

provisions of said contract’’;!°

Whether the trial court erred in granting for

defendant a summary judgment with respecf to

Count II of plaintiffs’ complaint (requesting

declaratory judgment with respect to whether the

statutory scheme established by § 31091) is

violative of due process and equal protection) on

the ground that defendant “is not itself engaged

in state action”;'' and

Whether the trial court erred in its rationale for

disposing of issue (2), supra, with respect to

whether the statutory scheme established by

§ 3109(1) violates the due process and eyual

protection clauses of the Michigan and United

States Constitutions. More specifically, based on

the facts of this case we will consider whether

the § 3109(1) statutory scheme operates to deny:

that class which has paid for its governmental

benefits, including federal Social Security

survivors’ benefits, both equal protection and

A29

due process of law. We do not express any

opinion with respect to the constitutionality

of a_ set-off of non-contributory, ex gratia

governmental transfer payments.

We answer the first issue in the negative and the latter

two constitutional issues in the affirmative.

Ill.

BREACH OF CONTRACT AND

STATE ACTION ISSUES

Issues (1) and (2), supra, need not detain us long. As

Judge Bashara stated with respect to these issues in his

dissenting Court of Appeals opinion:

“I am of the opinion the trial judge correctly

ruled that count I failed to allege breach of

contract. The facts pled do not allege breach of

contract because the insurance contract provided

for a reduction in no-fault benefits to the extent

of government benefits received.

“The heart of this lawsuit is count II. The

proscriptions of the Fourteenth Amendment, US

Const, Am XIV, apply to actions of the state and

not merely private conduct. Shelley v Kraemer,

334 US 1; 68 S Ct 836; 92 L Ed 1161 (1947). The

Fourteenth Amendment applies to all state

legislation Which impairs all due process or

denies equal protection. Civil Rights Cases, 109

US 3, 11; 3 S Ct 18; 27 L Ed 835 (1883).

“It is undisputed that the basis for paragraph

(5) (a) of the insurance policy is the legislative

enactment of MCLA_ 500.3109(1); MSA

24.13109(1). This is a state action. See Peterson v

City of Greenville, 272 US 244; 83 S Ct 1119; 10 L

A30

Ed 2d 323 (1963). I believe the trial judge erred

in determining there was no state action, and

consequently failing to consider’ the

constitutional questions raised.” 70 Mich App

487, 502-503.

We are persuaded by the majority’s conclusion as well

as dissenting Judge Bashara’s reasoning in this regard.

We specifically adopt Judge Bashara’s analysis as to

issues (1) and (2) of this opinion. Accordingly, we need

only further address issue (3), supra, i.e., the

consideration of plaintiffs’ request for declaratory relief

with respect to the question of whether the statutory

schome under § 3109(1) violates the due process and

equal protection clauses of the Michigan and United

States Constitutions.

IV.

PLAINTIFFS’ CONSTITUTIONAL ATTACK ON THE

§ 31091) STATUTORY SCHEME: THE APPLICABLE

EQUAL PROTECTION AND DUE PROCESS TESTS

Since this final issue involves both facial due process

and equal protection challenges to a statutory scheme of

the Michigan No-Fault Insurance Act, our discussion in

Shavers concerning the appropriate constitutional

standards in this area is apposite. In Shavers, this Court

held that the ‘‘traditional” substantive due process and

equal protection tests espoused by this Court in its

consideration of other social welfare and general

economic legislation were the applicable standards by

which to consider constitutional challenges to the

various statutory schemes of the No-Fault Act. 402 Mich

554, 611-618. Manifestly, these tests must likewise be

applied in the case at bar.

A31

We articulated the applicable ‘‘traditional’’ due

process test in the following terms: 4

“The test to determine whether legislation

enacted pursuant to the police power comports

with due process is whether the legislation bears

a reasonable relation to a permissible legislative

objective.” 402 Mich 554, 612.

Further, citing the United States Supreme Court's

admonitions in United States Dept of Agriculture v

Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782

(1973), this Court articulated the “traditional” equal

protection standard to be applied in this area of

concern. We stated:

“ ‘Under traditional equal protection analysis,

a legislative classification must be sustained, if

the classification itself is rationally related to a

legitimate governmental interest.’ ’’ 402 Mich

554, 613.

The details of this test were elaborated upon by Justice

Ryan in his separate opinion in Shavers:

“Reduced to its simplest, the equal protection

guarantees of both constitutions means that the

Legislature may not take what may be termed a

‘natural class of persons’, split that class in two,

and then arbitrarily designate the severed

factions of the original unit as two classes and

thereupon enact different rules for the treatment

of each. However, when there is a_ natural

difference between’ the situation. or

circumstances of the two classes of persons, the

Legislature may be justified in treating them

differently. The state enjoys a wide range of

discretion in distinguishing, selecting, and

A32

classifying, and it is sufficient if a classification

is practical and not palpably arbitrary. Orient Ins

Co v Daggs, 172 US 557; 19S Ct 281; 43 L Ed 552

(1899).”" 402 Mich 554, 662.

In deference to the legislative wisdom, we made clear

that in the application of these tests, ‘it is axiomatic

that the challenged legislative judgment is accorded a

presumption of constitutionality’’. 402 Mich 554, 613.

Recognizing that the presumption of constitutionality

to be accorded judgments of the Legislature is

rebuttable in nature, we indicated that:

“a party challenging the legislative judgment

may attack its constitutionality in terms of purely

legal arguments (if the legislative judgment is so

arbitrary and irrational as to render the

legislation unconstitutional on its face) * * *.”

402 Mich 554, 614.

Cognizant of the bifurcated analytic approach and

general principles established in Shavers, our task in

deciding the constitutional questions presented herein

must be as follows:

In considering plaintiffs’ due process and

equal protection challenges to the statutory

scheme under § 31091), this Court must (i)

determine whether plaintiffs have overcome

the ‘‘presumption of constitutionality’’ by

establishing through legal argument or otherwise

that the evil identified by the statutory scheme

under § 3109(1) is entirely without basis; and (ii)

determine whether either the statutory scheme

or classification matrix drawn under § 31091) is

reasonably related to the legislative purpose of

correcting the evil that is rationally identified.

A33

We are of the opinion that while the first prong of

this analysis has been satisfied, the statutory scheme is

deficient on its face as to the second prong, thereby

rendering § 3109(1) unconstitutional on its face at least

insofar as the subtraction of federal Social Security

survivors’ benefits is concerned.

V.

DISCUSSION: LEGISLATIVE PURPOSE AND

STATUTORY CLASSIFICATION

As indicated, supra, in testing both equal protection

and due process attacks to statutory schemes under the

No-Fault Act, the Court must first determine whether

the challenged scheme has a valid legislative purpose.

In Shavers v Attorney Ceneral, supra, we opined that

“[t]he goal of the no-fault insurance system was to

provide victims of motor vehicle accidents assured,

adequate, and prompt reparation for certain econcmic

losses”. 402 Mich 554, 578-579.'? Consistent with this

legislative objective was the apparent legislative

determination to either reduce or contain presently

rising levels of premium costs borne by all insureds.

The Court of Appeals reasoning in this case, handed

down prior to our decision in Shavers, implicitly

recognized this comprehensive legislative judgment.

Judge T. M. Burns, writing for the majority of that

court, further discerned the purpose of § 3109(1) in the

following manner:

“Presumably, the purpose of § 3109(1) is to

reduce the overall cost of the no-fault program

by eliminating duplicative recovery. If the

insurer has to pay less, he can charge less. As

A34

recognized in Shavers [65 Mich App 355; 237

NW2d 325 (1975)], the reduction of the cost of

insurance is a proper basis for classification, and

prohibitive cost was a problem that needed

solution.”” 70 Mich App 487, 495.

We are satisfied that the legislative objective sought

to be achieved by the promulgation of the disputed

statutory scheme encompasses either the objectives of

duplicative benefit elimination or premium cost

reduction, or both. This characterization of the disputed

scheme’s purpose finds support in both the legislative

history of § 3109(1)'* and the majority of those cases

considering the constitutionality of this scheme. '4

Considering the comprehensive legislative objective

sought to be effectuated by the promulgation of this

Act, we find the purpose of the statutory scheme under

consideration to be both an exercise of permissible

legislative judgment and rationally based.'5 In deference

to this legislative judgment, we must conclude that the

first requirement of the traditional equal protection test

has been fulfilled; plaintiffs have not overcome the

presumption that the challenged statutory scheme has a

valid legislative purpose.

Having so concluded, as did the Court of Appeals,

we must now address ourselves to whether the

challenged classifications and means engineered under

the § 3109(1) statutory scheme are reasonably related to

this legitimate governmental purpose. We conclude, as

did the jurists in the analogous principal cases of Fox v

Employment Security Comm, 379 Mich 579; 153 NW2d

644 (1967), and Bowser v Jacobs, 36 Mich App 320; 194

NW2d 110 (1971), that the classification matrix drawn

by the Legislature is without the force of requisite logic

A35

and is therefore both unconstitutionally arbitrary and

discriminatory where contributions have been made by

the insured for those governmental benefits, including

federal Social Security survivors’ benefits, sought to be

set-off by §3109(1). This conclusion is occasioned

whether we perceive the purpose of the statutory

scheme to be one of duplicative benefit elimination, or

premium cost reduction. '°

VI.

EQUAL PROTECTION CHALLENGE

The gravamen of plaintiffs’ equal protection challenge

to § 3109(1) is that, while the purpose of the statutory

scheme may be a permissible one, there exist no

naturally distinguishable characteristics relevant to the

permissible legislative judgment which rationally justify

the disparate treatment afforded these two classes. The

only apparent distinction between these classes — the

source of the collateral benefits — does not

constitutionally justify the disparate treatment afforded

those no-fault insureds’ receiving collateral

governmental benefits and those no-fault insureds

receiving collateral private insurance benefits.

On the contrary, the identity of class characteristics is

patent. Both classes have received the same premium

cost reduction, if any, both classes have paid the same

premium dollar for identical no-fault coverage, and

both, at least in the case of Social Security survivors’

benefits, have made monetary contributions to secure

the coverage authorizing both the governmental and

private benefits. Further, plaintiffs cite persuasive legal

authority in:support of their contentions.

A36

Defendants, on the other hand, allege that there exist

distinguishing characteristics between governmental

fund coverage and private insurance fund coverage

which justify the disparate treatment afforded these two

classes of no-fault recipients in furtherance of what

defendant perceives to be the legislative objective of the

No-Fault Act, i.e., the structuring of no-fault insurance

as a secondary rather than as a primary source of

compensation.'’ Additionally, defendant attempts to

distinguish and rebut plaintiffs’ legal authority on the

basis of Richardson v Belcher, 404 US 78; 92 S Ct 254; 30

L Ed 2d 231 (1971), attempts ‘« factually distinguish

mandatory governmental and voluntary private

insurance benefits,'* and alleges that the amendment of

the No-Fault Act with the addition of § 3109a operates

to cure the disputed statutory scheme of any

constitutional violations otherwise arguably involved. '%

In the instant case, we are not called upon to consider

whether the absence of monetary contribution by an

insured to a governmental insurance system would have

a favorable impact on the legislative justification for

separaie classification. Rather, we are here confronted

with the Legislature’s attempt to set off those benefits

emanating from a contributory governmental scheme.

Especially because of this significant distinction, we are

persuaded by plaintiffs’ arguments that § 3109(1) is

arbitrary and discriminatory insofar as it treats similarly

situated no-fault insureds differently through its

creation of two distinct classes solely upon the source

from which the extra compensation is paid.

In view of the facts here that (i) both classes of

no-fault insureds pey the same premium dollar for

identical maximum personal protection no-fault

coverage, (ii) both classes have received a common

A37

premium cost reduction, if any, and (iii) both classes

have monetarily contributed to secure the coverage

authorizing both governmental and private benefits, we

must find this statutory scheme facially violative of

traditional equal protection mandates. Our conclusions

in this regard are supported by analogous Michigan

precedent: Fox v Employment Security Comm, 379 Mich

579; 153 NW2d 644 (1967); Bowser v Jacobs, 36 Mich App

320; 194 NW2d 110 (1971).°

A. Duplicative Benefit Elimination

If the legislative purpose of the statutory scheme

before us is considered to involve the elimination of

duplicative recovery, it is apparent that this permissible

purpose is neither practically nor constitutionally

realized by the § 3109(1) classification matrix as the

distinction in classes is based solely on the source from

which the collateral. compensation is paid.*’ Section

3109(1) irrationally permits the retention of duplicative

no-fault and private insurance benefits by that class

which has directly engaged such collateral, private

insurance. Yet, it concurrently mandates the reduction

of insurer-paid no-fault benefits by the amount of

benefits likewise directly paid for by the no-fault

insured yet fortuitously received under the auspices of a

governmental program. We cannot sanction this

irrational class differentiation.

This finding of unconstitutionally disparate

classification is further emphasized when one notes that

§ 3109a, MCLA 500.3109a; MSA 24.13109(1), provides

for an optional set-off of private, collateral insurance

benefits at the election of the insured, while § 3109(1)

mandates such a set-off whether the governmental

benefit recipient desires such a subtraction or not.

A38

There is no logic to support this difference in an

attempt to eliminate duplicative recovery.??

B. Premium Cost Reduction

Similarly, pursuant to the classifications drawn by the

Legislature in enacting § 3109(1), all Michigan motorists

pay the same uniform premium rate for no-fault

coverage but all do not receive the same benefits. It is

urged by defendant that such classifications are

permissible means for achieving the lowering of

premium rates. We do not agree as § 3109(1) focuses the

burden of premium cost reduction on governmental

benefit recipients alone. That class is confronted with a

set-off while similarly situated private insureds who

benefit from this premium reduction are not. This

conclusion obtains whether we review § 3109(1) alone

or in conjunction with § 3109a.

Section 3109a, MCL 500.3109a; MSA 24.13109(1),

provides in relevant part:

“An insurer providing personal protection

insurance benefits shall offer, at appropriately

reduced premium rates, deductibles and

exclusions reasonably related to other health and

accident coverage on the insured.* * *”’

The effect of this section is to permit a no-fault insured

who has engaged collateral, private insurance to receive

a reduction in premium rates if that insured has elected

a set-off of private, collateral benefit amounts. Section

3109(1), on the other hand, compels an insured to pay

the full premium rate while concurrently requiring

acquiescence to a mandatory set-off of governmental

benefits for which the insured has paid.

A39

In a real sense, both classes of insureds have paid for

their collateral benefits whatever form those benefits

have assumed. Yet, those who have engaged private,

collateral benefits are permitted to recoup some of their

collateral benefit costs through an appropriate premium

reduction pursuant to § 3109a while those who receive

governmental benefits are denied a similar recoupment

of some of their out-of-pocket collateral benefit costs

through an equally appropriate premium reduction. In

effect, private collateral benefit no-fault insureds are

disproportionately permitted larger no-fault benefits for

their elected full or reduced premium rate payment

than are similarly situated governmental benefit

recipient-insureds at the mandatory full premium rate.”

Further, proceeding from an analysis of § 3109(1)

alone, we are similarly convinced that the burden of

effectuating the permissible premium cost reduction

objective unconstitutionally rests solely upon the

governmental benefit class of no-fault insureds. Ur like

the collateral private insured class, the governmental

recipient insured class is first compelled to purchase

no-fault insurance, denied full no-fault coverage on

claims compensable by governmental programs

ostensibly for the purpose of reducing premiums, and

is then denied the full benefit of the savings in

premiums while the similarly situated private benefit

class is not. In essence, this scheme operates both

arbitrarily and discriminately to compel those insureds

entitled to both government and no-fault benefits to

subsidize premium savings for the greater, class of all

insureds including those entitled to receiv® and hold

private insurance benefits. **

A40

C. Equal Protection Case Analysis

We find support for our conclusion of facial

unconstitutionality in the case law as developed by the

courts of this state. Indeed, both this Court and the

Court of Appeals have earlier been faced with equal

protection challenges to analogous governmental set-off

schemes; these challenges were presented in both Fox v

Employment Security Comm, 379 Mich 579; 153 NW2d

644 (1967), and Bowser v Jacobs, 36 Mich App 320; 194

NW2d 110 (1971).

In Fox, weekly unemployment benefits were

statutorily denied to those employees receiving total

permanent, partial permanent, or temporary disability

worker’s compensation benefits. Recipients of worker's

death benefits, “specific loss” benefits, and those

employees who elected to accept a “lump sum”

worker’s compensation award, however, were

statutorily permitted to receive weekly unemployment

compensation.

Justice T. M. Kavanagh, writing for the majority,

opined that the object of the disputed statutory scheme

was to preclude the possibility of benefit duplication;

this object was identified by the Court as a permissible

legislative purpose. The distinction drawn by the

Legislature between the two classes of potential weekly

unemployment compensation recipients on the basis of

a worker’s eligibility for either permanent or temporary

compensation as opposed to death benefits, “specific

loss’” benefits, and “lump sum” benefits, however, was

held to be an impermissible, arbitrary classification

scheme. This was so, the Court opined, because under

—

A4l

the statutory scheme certain workers were permitted to

obtain unemployment benefits while others similarly

situated were not. Citing People v Chapman, 301 Mich

584; 4 NW2d 18 (1942), which quoted from Haynes v

Lapeer Circuit Judge, 201 Mich 138; 166 NW 938 (1918),

the Court stated:

“* “Legislation which, in carrying out a public

purpose for the common good, is limited by

reasonable and justifiable differentiation to a

distinct type or class of persons is not for that

reason unconstitutional because class legislation,

if germane to the object of the enactment and

made uniform in its operation upon all persons

of the class to which it naturally applies; but if it

fails to include and affect alike all persons of the

same class, and extends immunities or privileges

to one portion and denies them to others

of like kind, by unreasonable or arbitrary

subclassification, it comes within’ the

constitutional prohibition against class

_ legislation.” ’ ’’ 379 Mich 579, 589.

Under the auspices of the ‘‘traditional’’ equal protection

test, the Court held that the disputed statutory

classification scheme denied plaintiffs equal protection

despite its attempt to effectuate a permissible legislative

objective of duplicative benefit elimination.

While we are cognizant that Fox is not a direct

analogue of the present action, we believe it

persuasively offers support for the proposition that the

classifications drawn here are violative of equal

protection. In fact, we are of the opinion that the Fox

Court went further than we are presently required to

proceed in finding a governmental set-off scheme

constitutionally infirm in that neither the

A42

unemployment nor worker’s compensation beneficiaries

made any financial contribution for their benefit rights

whereas in the instant case the beneficiaries made

contributions for all benefit rights.

Further support for our ruling of facial

unconstitutionality is found in the closely analogous

case of Bowser v Jacobs, 36 Mich App 320; 194 NW2d

110 (1971) (now Justice Levin, dissenting and

recommending remand for further findings of fact). In

Bowser, the Court of Appeals considered the equal

protection viability of a statutory scheme under the

Motor Vehicle Accident Claims Act. The disputed

scheme operated to totally bar those employees entitled

to worker’s compensation from applying for benefits

under that Act. Those claimants similarly situated, but

who had nonetheless secured voluntary collateral,

private insurance, however, were permitted recourse

against the fund. The majority agreed with the

plaintiffs’ concern that the classification was violative of

‘traditional’ equal protection mandates.?5 Writing for

the Court, Chief Judge Lesinski stated:

“The legislative aim of this social legislation

** * is to compensate those injured by

uninsured tortfeasors who would otherwise have

had no source of recovery. But, as we have seen,

some persons who have available avenues of

recovery are permitted to reach the Fund but

injured ernployees are not. We are constrained to

agree that the legislature has arbitrarily carved

out this class from those who have recourse to

the Fund. This classification is one made

without the force of compelling logic; we find it

unconstitutionally discriminatory.”’ 36 Mich App

320, 328.

A43

Defendant characterizes Bowser as inapt on the

ground that the statutory scheme presently under

consideration merely mandates a set-off in recovery

while the Bowser statutory scheme required a total bar

to recovery. We do not find this distinction persuasive,

especially in view of the fact that in both Bowser and

the case at bar the concern is one of statutory

classification rather than the aggregate amount of an

insured’s recovery. We find the basis of the Bowser

court’s reasoning appropriate for consideration in the

matter before us.

Defendant's principal rebuttal to the Court of Appeals

ruling of unconstitutionality rests upon the decision of

the United States Supreme Court in Richardson v

Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971)

(Justices Douglas, Marshall and Brennan dissenting).

We find this arguable, but distinguishable and not

persuasive.

The facts presented in Richardson required the Un.ted

States Supreme Court to consider a “traditional” equal

protection challenge to § 224 of the Social Security Act.

The disputed statutory scheme required the set-off of

state and federal worker's compensation benefits

against federal Social Security disability benefits. Those

similarly situated but entitled to voluntary, private

benefits, however, were not required to maintain a

similar set-off. The Supreme Court, in a 4 to 3 decision,

ruled that the difference in treatment accorded these

two classes was not constitutionally infirm considering

the peculiar legitimate legislative purpose sought to be

furthered by the scheme, i.e., the affirmance and

encouragement of state worker’s compensation schemes.

A44

Justice Stewart writing for the majority in Richardson

stated:

“It is self-evident that the offset reflected a

judgment by Congress that the workmen’s

compensation and disability insurance programs

in certain instances served a common purpose,

and that the workmen’s compensation programs

should take precedence in the area of overlap.

* + ©

“*** The original purpose of state

workmen's compensation laws was to satisfy a

need inadequately met by private insurance or

tort claim awards. Congress could rationally

conclude that this need should continue to be

met primarily by the States, and that a federal

program that began to duplicate the efforts of the

States might lead to the gradual weakening or

atrophy of the state programs.” 404 US 78, 82-84.

We are convinced that Richardson is manifestly

distinguishable from the case at bar.

First, the United States Supreme Court’s ruling

specifically relied on the federal-state relationship and

the congressional desire not to encroach upon a state

program. That policy is obviously not present in the

instant case.

Second, factually the two situations under comparison

markedly differ. This is so in two pivotal respects.

The first significant factual distinction centers on the

fact that Richardson concerned the set-off relationship of

two non-beneficiary contributory systems from which

A45

the insured would benefit gratuitously, whereas the

instant case concerns the set-off relationship of two

beneficiary contributory systems. Unlike the situation

posed in Richardson, this Court is not required to rule

on a legislative classificatory attempt to eliminate

redundant, free transfer payments; rather, we are faced

with a manifestly distinguishable attempt to set off

insured-financed governmental benefits against

insured-financed private no-fault coverage.

The second significant factual distinction involves the

circumstance that the Richardson scheme sought to set

off a disability benefit against a disability benefit,

whereas the scheme under review seeks to set off a

longevity benefit against a disability benefit. We find

this dissimilarity compelling.

Third, we find Richardson di inguishable in terms of

the legislative purposes sought to be accomplished by

the statutory schemes engineered by the United States

Congress and the Michigan Legislature. Reduced to

their common denominator, both schemes have as an

apparent legitimate purpose the elimination of

duplicative recovery. This elimination was sought to be

achieved by these two legislative bodies, however,

through two entirely different vehicles. Indeed, in

Richardson, Congress enacted a set-off provision as a

vehicle to reduce the federal gover:iment’s risk on its

own federal, governmental fund. Here, unlike

Richardson, the Michigan Legislature has enacted a

set-off as a vehicle to reduce:the private insurance

industry’s risk on a private insurance fund. In essence,

the § 3109(1) scheme operates to either partially or

completely discharge private contractual, no-fault

obligations while the Richardson scheme operated to

discharge public obligations created and controlled by

Congress pursuant to its general welfare powers.

A46

On the basis of the foregoing analysis of Richardson,

we are persuaded that the majority’s reasoning and

holding therein is not dispositive of the case before us

as suggested by defendant.?° We are further persuaded

that the conceptual analysis offered in both Fox and

Bowser is both appropriate for our present consideration

and supportive of our finding of facial

unconstitutionality.

VII.

DUE PROCESS CHALLENGE

Plaintiffs additionally contend that the § 3109(1)

statutory scheme is facially unconstitutional as_ it

confiscates property in the form of personally financed

premium payments without due process of law. In

support of this contention, plaintiffs forward essentially

the same analysis as provided in their equal protection

challenge to § 31091). Defendant similarly rests upon

the same analysis it proffered to rebut plaintiffs’ equal

protection challenges.

We have consistently opined that the over-all

objective of the No-Fault Act is to adequately,

assuredly, and promptly compensate victims of

automobile accidents for certain economic losses. We

have likewise determined that the statutory scheme

engineered by § 3109(1) has as its permissible purpose

either the elimination of duplicative recovery or the

reduction of premium costs for all insureds.

It is beyond peradventure that payment of personal

protection insurance benefits as well as the payment of

governmental benefits under the no-fault scheme are

triggered by an injury arising from a compensable

automobile accident and resulting in economic loss to

A47

ure

the insured. Yet, the broad statutory language of

§ 3109(1) irrationally permits the set-off of non-accident

as well as accident related governmental benefits.

Indeed, the unqualified, overbroad language of

§ 3109(1) indicates the absurd result that not only may

the insurer subtract insured subsidized accident-related

Social Security benefits as here, but the insurer may

also set off e.g., federal, state, municipal and employee

pension and disability plans, veterans’ benefits, and

other non-automobile casualty related benefits paid

from a governmental fund and financed by the recipient

insured. No doubt, were we to hold this section

constitutional, we could envision an insurer setting-off

an insured’s governmental pension benefits awarded

because of the insured’s employment longevity, against

the insurer’s no-fault liability for injury occasioned in

an automobile accident. |

It is clear from the above example that the language

of this scheme is unconstitutionally overbroad and

devoid of means rationally related to an otherwise

legitimate legislative purpose.

VIII.

CONCLUSION

We find that the elimination of duplicative benefits

and the maintenance or reduction of premium costs are

permissible exercises of the legislative judgment. We

are not persuaded, however, that either the

classifications drawn or the means selected by the

Legislature to effectuate this judgment through the

enactment of § 3109(1) reasonably relate to these

otherwise legitimate governmental purposes.

A48

Accordingly, we find the statutory scheme of

§ 3109(1) to facially deny plaintiffs both due process and

equal protection of the laws.

Having found § 3109(1) facially unconstitutional, we

likewise find the contract provision invalid as offensive

to public policy. See, e.g., State Farm Mutual Automobile

Ins Co v Shelly, 394 Mich 448; 231 NW2d 641 (1975).

Althqugh the Court of Appeals found § 3109(1) to be

of no effect as of the date of its enactment, we hold that

in the interests of justice our declaration of

unconstitutionality must be given only limited

retroactive effect. We, therefore, hold the ruling

announced today to be applicable to: (i) the instant case

and all lower court cases presently pending which have

raised this issue but in which a decision has not been

rendered; (ii) all appropriate future cases in which this

section is disputed subsequent to the date of this

Opinion; ili) those cases in which a retrial is to occur

after the date of this opinion because of remand on any

other issue where the § 3109(1) set-off issue has been

raised; and (iv) those cases pending on appeal or

eligible for appeal after the date of this opinion in

which this issue has been adequately preserved.

We affirm the Court of Appeals finding of

unconstitutionality and order entry of judgment

consistent with this opinion. No costs, a public

question being involved.

is) G Mennen Williams

is) John W. Fitzgerald

/s/ Blair Moody, Jr.

A49

OPINION FOOTNOTES

' US Const, Am XIV; Const 1963, art 1, § 2 (equal protection);

Const 1963, art 1, § 17 (due process).

>

2 As indicated infra, plaintiffs must bear the burden of rebutting

the presumption of a statute’s constitutionality. That task may be

accomplished by one or both of two methods: plaintiffs may either

forward persuasive legal arguments indicating that the legislative

judgment culminating in the enactment of the statutory scheme

under § 31091) is unconstitutional on its face, see Borden's Farm

Products Co, Inc v Baldwin, 293 US 194; 55 S Ct 187; 79 L Ed 281

(1934); Pinnick v Cleary, 360 Mass 1; 271 NE2d 592 (1971) (Tauro, C.

J., concurring), or plaintiffs may offer facts justifying a judicial

declaration that the scheme is equally unconstitutional, see Borden's

Farm Products Co, Inc v Baldwin, 293 US 194; 55S Ct 187; 79 L Ed 281

(1934); People v Poucher, 398 Mich 316; 247 NW2d 798 (1976). While

we have expressed our preference for the latter offer in our

consideration of certain constitutional attacks to other disputed

no-fault statutory schemes in Shavers v Attorney General, 40.’ Mich

554; 267 NW2d 72 (1978), we have not expressed that preference in

absolute terms. Indeed, we are of the opinion that in cases such as

the one at bar presenting a facially unconstitutional no-fault

statutory scheme, the presentation of compelling iegal arguments

is alone sufficient to support a judicial declaration of

unconstitutionality.

’ This set-off is made against an insured’s § 3108 no-fault

personal protection benefits. “we

4 Compare MCL 500.3109a; MSA 24.13109(1) which provides in

pertinent part:

“An insurer providing personal protection insurance

benefits shall offer, at appropriately reduced premium rates,

deductibles and exclusions reasonably related to other

health and accident coverage on the insured. * * *”

A50

* In Shavers, supra, this Court held that plaintiffs therein lacked

standing under GCR 1963, 521.1 to seek declaratory relief regarding

§ 3109(1) because ‘‘[t]here is no proof in the record that any plaintiff

had a claim for an injury which had been denied or reduced [in

amount pursuant to § 3109(1)]’’. 402 Mich 554, 592, fn 12. Justice

Levin similarly addressed this principle in Advisory Opinion re:

Constitutionality of 1972 PA 294, 389 Mich 441, 484; 208 NW2d 469

(1973):

“It is not properly within our function to hypothesize

particularized claims or to set up, speculatively, strawmen

classes of persons who might claim to be disadvantaged in

various ways by the classifications and provisions of the

Aor.”

We clearly have no such problem here. It is undisputed that

plaintiffs herein ‘[have] a claim for an injury which [has]

been *** reduced [in amount pursuant to § 3109(1)]”. The

Social Security Act provides for the payment of Social

Security survivors’ benefits to four categories of individuals

if their decedent was statutorily “insured”. 42 USC 402 et

seq. While the pleadings presented to this Court for review

do not indicate under which section of the Social Security

Act plaintiffs have sécured their survivors’ benefits, we can

assume without conclusively finding that plaintiffs have

been provided benefits pursuant to 42 USC 402(g) and 42

USC 402(e).

° It is undisputed that plaintiffs herein, the statutory dependents

of decedent no-fault insured, did not personally contribute to the

Social Security fund authorizing the survivors’ benefits to which

they are entitled. Rather, plaintiffs collected this governmental

benefit through their deceased father and husband against whom

the wage deduction was levied. Under this set of facts, we are of the

opinion that plaintiffs should be considered as having made the

Social Security fund contribution in the same manner as we would

have considered the no-fault insured decedent’s contributions had

he survived the automobile accident. Obviously, there is no

difference in principle, insofar as contributions are concerned,

between the present instance and the instance where the actual

payor has not been killed in an automobile accident but personally

institutes suit for disability benefits personally financed.

Additionally, plaintiffs herein suffer further disparate treatment

through the operation of this set-off scheme when compared with

survivors of a privately insured whose benefits would not similarly

be subject to set-off.

A51

*

O'Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App

487: 245 NW2d 801 (1976) (Bashara, P.J., dissenting and

recommending remand).

8 Section 3110 of 1972 PA 294 provides:

“(1) The following persons are conclusively presumed to

be dependents of a deceased person:

“(a) A wife is dependent on a husband with whom she

lives at the time of his death.

“(b) A husband is dependent on a wife with whom he

lives at the time of her death.

(c) A child while under the age of 18 years, or over that

age but physically or mentally incapacitated from earning,

is dependent on the parent with whom he lives or from

whom he receives support regularly at the time of the death

of the parent.’’ MCL 500.3110; MSA 24.13110.

* Section 3108 of the No-Fault Act provides:

“Personal protection insurance benefits are payable for a

survivois’ loss which consists of a loss, after the date on

which the deceased died, of contributions of tangible things

of economic value, not including services, that dependents

of the deceased at the time of his death would have

received for support during their dependency from the

deceased if he had not suffered the accidental bodily injury

causing death and expenses, not exceeding $20.00 per day,

reasonably incurred by these dependents during their

dependency and after the date on which the deceased died

in obtaining ordinary and necessary services in lieu of

those that the deceased would have performed for their

benefit if he had not suffered the injury causing death. The

benefits payable for survivors’ loss in connection with the

death of a person in a single 30-day period shall not exceed

$1,000.00 and is not payable beyond the first 3 years after

the date of the accident.’”” MCL 500.3108; MSA 24.13108.

A52

‘0 Appellant's Appendix, p 14a.

'' Appellant’s Appendix, p 15a.

'2 As to the Act’s personal injury protection scheme, we

elaborated that its “comprehensive and expeditious benefit system”,

was reasonably related to curing certain pronounced deficiencies

of the tort liability system of recovery, including evidence that:

“minor injuries were overcompensated, serious injuries were

undercompensated, long payment delays were commonplace, the

court system was overburdened, and those with low income and

little education suffered discrimination”. 402 Mich 554, 579.

'* Michigan’s No-Fault Insurance Act was signed into law by

Governor Milliken on October 31, 1972. 3 Mich Senate J (1972) 2032.

After two years of substantial alteration and modification

undertaken by both the Michigan House of Representatives and

Senate, § 3109(1) as it presently appears was adopted in that

enactment.

In April of 1971, four House Bills were introduced detailing a

proposed no-fault scheme of automobile insurance. 1 Mich House ]

(1971) 783-784. None of these Bills, however, specifically provided

for governmental benefit set-off. It was in response to the absence of

such a provision that then-acting Commissioner of Insurance Van

Hooser voiced his concern to Governor Milliken that these House

Bills adversely tended to increase remedial duplication and overlap

between automobile insurance benefits and other benefit programs

(e.g., social security and medicare) receivable by an insured. In an

attempt to remedy this apparently undesirable result, the

Commissioner opined that the general language, “shall be payable

without regard to entitlement to any other program providing wage

continuation benefits”, should be deleted from the bill’s format.

Letter from Russell E. Van Hooser, Michigan Commissioner of

Insurance, to Governor Milliken (June 4, 1971) concerning analysis

of House Bills 4734, 4735, 4736 and 4737, p 3 reproduced in

Defendant's Exhibit No. 212, Joint Appendix submitted to this Court

A53

(fn. 13 cont'd.)

in Shavers v Attorney General. These House Bills subsequently died

in committee with no action having been taken on the

Commissioner's recommendation.

On April 26, 1971, the Michigan Senate introduced Senate Bill 520.

1 Mich Senate J (1971) 663. Unlike the above House drafts, § 3520,

subds (A) and (B) of that bill provided for an expansive

governmental benefit set-off scheme. Indeed, this bill mandated the

subtraction of both public and private benefits — with the exception

of Social Security benefits — from the amount otherwise payable by

an insurer. Section 3520 of Senate Bill 520 provided in pertinent

part:

“Sec. 3520 In calculating Net Loss:

“(A) Except as otherwise provided in this chapter, all

benefits and advantages a person receives or is entitled to

receive because of an injury, from sources other than

complete and added protection insurance are subtracted

from loss.” Mich Senate Bill 520 (1971).

Commissioner Van Hooser summarized the arguments for this

draft legislation, stating: “It would reduce the cost of automobile

insurance. ** * It would eliminate duplication of benefits (and the

resulting double premiums) by coordinating benefits from

automobile insurance with all other benefits’. Letter from Russell E.

Van Hooser, Michigan Commissioner of Insurance to Governor

Milliken (June 4, 1971), p 2 concerning analysis of Senate Bil! 520

reproduced in Defendant's Exhibit No. 212, Joint Appendix

submitted to this Court in Shavers v Attorney General.

Approximately two months after the introduction of Senate Bill

520, another bill was introduced in the Senate which directed a

contrary set-off result to that expressed in Senate Bill 520. Section 9

of Senate Bill 782, 1 Mich Senate J (1971) 1000-1001, provided in

pertinent part:

“Sec. 91) The amount of disability and survivor benefits

a claimant recovers or is entitled to recover under the social

security act, United States Code, title 42, sections 301 et

seq., because of accidental bodily injury shall be subtracted

from the personal protection insurance benefits otherwise

payable for the injury.” Mich Senate Bill 782 (1971).

Unlike Senate Bill 520, this set-off provision mandated payment to

the insured of both personal protection insurance benefits as well as

A54

(fn. 13 cont'd.)

other private and public benefits with the exception of social

security benefits.

Commissioner Van Hooser noted that while Senate Bill 782

“would assure prompt and adequate compensation of persons

injured in auto accidents in this state for medical expenses,

rehabilitation expenses, wage loss and survivor's loss’, it would

likewise encourage an increase in the cost of auto insurance as it

failed to eliminate duplication of benefits. Letter from Commissioner

Van Hooser to Governor Milliken (June 4, 1971), p 2 concerning

Senate Bill 782 reproduced in Defendant's Exhibit No. 212 in Shavers

v Attorney General. Accordingly, the Commissioner proposed an

amendment to Senate Bill 782 which he determined would reduce

the cost of auto insurance. Letter, p 4.. The Van Hooser amendment

substantially mirrored the final version of § 31091) as adopted.

Admittedly addressed only to Governor Milliken, Commissioner

Van Hooser’s comments make clear that the purpose of the § 31091)

statutory scheme was framed in terms of maintaining or reducing

premium costs for all insureds through the elimination of

duplicative benefits recovery. We accept the Commissioner's

comments as indicative of, if not substantially mirroring, the

legislative judgment in this regard. See, generally, Note, O’Donnell

v State Farm Mutual Insurance Co: A /udicial Attempt to Amend

Michigan's No-Fault Act, 1977 DCL Rev 187.

'* Greene v State Farm Mutual Automobile Ins Co, 83 Mich App

505; 268 NW2d 703 (1978); Hawkins v Auto-Ow. rs Ins Co, 83 Mich

App 225; 268 NW2d 534 (1978); Smart v Citizens Mutual Ins Co, 83

Mich App 30; 268 NW2d 273 (1978); Mielke v Michigan Millers Mutual

Ins Co, 82 Mich App 721; 267 NW2d 165 (1978); Pollock v

Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977);

Wysocki v Detroit Automobile Inter-Ins Exchange, 77 Mich App 565;

258 NW2d 561 (1977).

'S As Justice Levin posited for this Court in Manistee Bank &

Trust Co v McGowan, 394 Mich 655, 680; 232 NW2d 636 (1975);

“Courts should proceed cautiously and should defer to

legislative judgments which are reasonable. The Legislature

must be free to experiment without being required to attain

‘mathematical nicety’ in its formulation of remedies to

social and economic problems.”

A55

16

In its brief, defendant asserts yet a third purpose allegedly

justifying the classification matrix employed by § 31091).

Proceeding from the premise that the No-Fault Act was enacted to

“achieve full compensation for all economic losses so defined and

limited by the Legislature’, Appellant’s Brief, p 17, defendant

concludes that the evident purpose of § 3109(1) was designed (i) to

“assure that no more and no less than actual economic loss is

recovered from any source * * * and (ii) as ‘‘[a]n ancillary effect * * *

to reduce no-fault insurance carriers’ exposure and, consequently, to

keep the cost of no fault coverage within manageable limits’.

Appellant's Brief, p 18. The primary thrust of defendant's argument

in this regard, therefore, is that the classifications drawn by

§ 3109(1) rationally promote the alleged legitimate purpose of the

statutory scheme under consideration: the legislatively mandated

provision of secondary rather than primary insurance coverage of

economic loss. We are of the opinion that this purpose asserted by

defendant was not embraced by the Legislature in view of the fact

that the “subtractions” mandated by § 31091) include benefits

enjoyed prior to the automobile casualty. Since these benefits were

enjoyed wholly apart from the casualty compensable by no-fault,

they could not be considered a component of the compensable

economic loss resulting from the automobile casualty.

We have reviewed the legislative development of the statutory

scheme under consideration as well as the No-Fault Act as a whole

in our Shavers decision and can nowhere find support for

defendant's assertion of this legislative purpose. Unpersuaded by

defendant's particular characterization of the disputed scheme’s

purpose, we need not further address defendant’s contentions in

this regard.

'7 Actually, it is difficult to conceive of no-fault benefits as

“secondary”. Since al! drivers in this state are required to be

covered by no-fault insurance, and since a significant fraction of

these drivers are either not members of the work force from which

most governmental benefits arise, or have not been in the work

force long enough to be so entitled, no-fault insurance is most

frequently a primary rather than a secondary source of

compensation.

A56

'8 Defendant cites two principal characteristics which defendant

alleges distinguish governmental benefits from private insurance

benefits and thereby justify the ‘‘modest difference in treatment

between such benefits necessary to accomplish the Legislature's

objective [of making mo-fault insurance a secondary, rather than a

primary source for compensating auto crash victims for economic

loss}’’. Appellant's Brief, 32. In brief, these two characteristics are:

(i) governmental benefit programs are universal and involuntary

whereas private insurance programs are not; and (ii) benefits

received from governmental programs are uniform and readily

determinable while private insurance benefits are not. Appellant's

Brief, 31-38.

Defendant's alleged distinctions justifying disparate treatment are

unpersuasive. Indeed, governmental benefits are not necessarily

universal as contended by defendant. For example, all no-fault

insureds are not necessarily entitled to the receipt of either military

benefits or even Social Security benefits although some no-fault

insureds are so entitled. Further, we have found that the legislative

purpose to be furthered by the disputed statutory scheme is

different from that stated by defendant; defendant's distinctions are

thereby rendered inapposite.

'% Section 3109a, MCL 500.3109a; MSA 24.13109(1) provides in

pertinent part:

“An insurer providing personal protection insurance

benefits shall offer, at appropriately reduced premium rates,

deductibles and exclusions reasonably related to other

health and accident coverage on the insured. * * *”

This section of the No-Fault Act provides for an optional set-off of

private, collateral insurance benefits at the election of the insured. In

contrast, § 3109(1) provides for a mandatory set-off of governmental

benefits whether the insured desires such a subtraction or not, and

is significantly devoid of any similar provision such as “at

appropriately reduced premium rates”.

A57

(fn. 19 cont'd.)

Defendant asserts that the injection of § 3109a into the

composition of the general set-off scheme alleviates any

constitutional infirmity of 7 scheme. Defendant's principal

argument in this regard appears to center on the notion that, read in

conjunction, §§ 31091) and 3109a operate to treat all no-fault

insureds in an identical manner as both governmental and private,

collateral benefits are confronted with a set-off. As stated by

defendant in its brief at page 27: %

“** The only difference between government benefits

and benefits from other private insurance is that

government benefits are required to be subtracted from

no-fault benefits while the insured has the option of

electing to deduct or exclude his other private health and

accident coverages or, if he be willing to bear the added

cost, to receive duplicative benefits from private sources.”’

We cannot agree with defendant that the conjunctive

consideration of § 3109a cures the equal protection deficiency of the

appealed scheme by creating uniformity of treatment between

governmental benefit and collateral, private benefit recipients. In

fact, we are of the opinion that defendant's above-quoted statement

of essential similarity between the disputed classifications bears out

this very opposite point.

Indeed, rather than creating similarity between the government

and private, collateral benefits classes and furthering their uniform

treatment, these sections read in conjunction emphasize the

arbitrary and discriminatory treatment afforded the governmental

recipient class of insureds. Our conclusion first finds support in the

fact that while § 3109a permits the insured to elect a set off, § 3109(1)

requires a set off. While in many instances a set-off may be

encountered in both the governmental benefit and private, collateral

benefit spheres, it is not the case that such a scenario will

consistently present itself under the terms of this legislation. Thus,

we are still forced to deal with that situation where private insureds,

not having elected a set-off, are permitted full recovery from the

no-fault insurer’s fund in addition to the full receipt of collatera!

benefits while governmental benefit recipients, not even permitted

to consider a set-off, are denied full recovery from the no fault

insurer's fund as that fund is merely depleted to the extent of the

above-threshold governmental benefit recovery.

A58

(fn. 19 cont'd.)

Second, u, ormity is further dissipated by this scheme’s

premium reduction proviso. Section 3109a permits a reduction in

full premium rates if the no-fault insured elects a set-off of collateral

private benefit amounts. Section 31091), on the other hand, compels

the insured to pay the full premium rate while concurrently

acquiescing to a mandatory governmental benefit set-off. In a real

sense, both classes of insureds have paid for their collateral benefits

whatever form those benefits assume. Yet, those who have

fortuitously engaged private, collateral benefits are permitted to

recoup some of their collateral benefit costs through an appropriate

premium reduction while those who have been deemed eligible for

governmental assistance are denied a recoupment of some of their

real out-of-pocket collateral benefit costs through an equally

appropriate premium reduction. In effect, private collateral benefit

insureds are permitted larger no-fault benefits for their elected full

or reduced premium rate payment than are governmental bnefit

insureds at the mandatory full premium rate payment.

Had the Legislature chosen to offer both similarly situated classes

of insureds the § 3109a set-off election with a concommitant

reduction in premium rates, we might not have been compelled to

consider plaintiffs’ equal protection challenge. That exercise of

legislative judgment, however, has not been presented for our

consideration. As such, we certainly cannot agree with defendant's

argument that the amendment of the No-Fault Act with the addition

of §3109a operates to breathe constitutional vitality into this

otherwise expiring scheme. Rather, we are of the opinion that the

juxtaposition of these provisions renders this statutory scheme

facially unconstitutional in equal protection terms.

70 Our holding in Boettner v State Farm Mutual Ins Co, 388 Mich

482; 201 NW2d 795 (1972), following Blakeslee v Farm Bureau Mutual

Ins Co, 388 Mich 464; 201 NW2d 786 (1972), while not cited by

plaintiffs, provides further support for our concern that plaintiffs

have been deprived of a benefit for which they have paid and to

which they would otherwise be entitled. Both Blakeslee and Boettner

dealt with the stacking of automobile insurance policies prior to the

advent of the No-Fault Act. Neither was decided on constitutional

grounds. One issue presented in both concerned whether an insured

could collect on more than one auto policy for which that insured

had paid despite the fact that only one covered auto had been

A59

(fn. 20 cont'd.)

involved in an accident. Citing our statement in Blakeslee, 388 Mich

464, 474, we expressed the following in Boettner:

‘It would be unconscionable to permit an insurance

company offering statutorily required coverage to collect

premiums for it with one hand and allow it to take the

coverage away with the other by using a self-devised ‘‘other

insurance” limitation.’ ” 388 Mich 482, 487-488.

In a real sense, the § 31091) statutory scheme permits an insurer

to collect premiums for personal protection coverage with one hand

while permitting that insurer to either completely or partially take

that coverage away with the other through the guise of a

governmental benefit set-off. Just as we found that practice

objectionable in these stacking cases, we find them equally

objectionable here.

21 Actually, the benefits subject to subtraction under § 3109(1)

may not even be duplicative. This point is illustrated in those

instances, for example, where the governmental benefit sought to be

subtracted does not arise from an automobile casualty at all, but

rather arises from a longevity payment or a war-related disability.

22 We note in passing that the Legislature could have

constitutionally realized its otherwise permissible judgment by

treating these similarly situated classes alike, mandating a set-off for

both governmental and private insurance recipients. This the

Legislature did not do and we therefore feel constrained to declare

this classification scheme violative of equal protection.

23 In view of the Legislature's apparent reluctance as. expressed

in § 3109a to permit a set-off of private, collateral benefits in the

absence of a direct premium reduction, it might be argued that the

Legislature solely mandated a set-off of governmental benefits based

on the misconceived notion that governmental benefits are

uniformly available to all no-fault insureds. If this erroneous

conception guided the Legislature in its enactment of § 31091), an

equally erroneous conclusion that all insureds are permissibly

A60

(fn. 23 cont'd.)

treated similarly through the operation of § 3109(1) would indeed

arise. Our disagreement with this notion is apparent. In fact, all

no-fault insureds are not uniformly eligible for governmental

assistance. This becomes apparent when one considers that only

four narrow classes of individuals are eligible for federal Social

Security survivors’ benefits if their decedent was also statutorily

“insured”. 42 USC 402 et seq. Uniformity in treatment, therefore, is

not championed by the § 31091) statutory scheme; rather,

unconstitutionally disparate classification once again clearly emerges

from this feigned veil of uniformity.

*4 See Manistee Bank & Trugt Co v McGowan, 394 Mich 655; 232

NW2d 636 (1975), wherein this Court considered the equal

protection viability of the Michigan Guest Passenger Act. The

disputed act statutorily denied tort recovery to negligently injured,

non-paying automobile passengers. As one possible purpose for the

guest/non-guest classifications drawn by the Legislature, the Court

analyzed the allegation that the disputed act was permissibly

enacted to limit liability, reduce litigation, and thereby enable

insurers to offer mandatory coverage at reduced premium rates.

Applying the traditional “reascnable relation’ equal protection test

to the challenged classification matrix in this particular respect,

Justice Levin found the statutory scheme to deny plaintiffs equal

protection of the laws and stated for the majority:

“Conceding, arguendo, that insurance rates are lower

because there is a guest statute, lower insurance premiums

do not, without more, justify an essentially arbitrary

classification.

“If persons injured on Thursdays or men between 50 and

60 years of age were denied recovery for ordinary

negligence, there would be assurance of less litigation,

fewer recoveries and the possibility of lower insurance

rates. Nevertheless, all would agree that such classifications

would be struck down as ‘arbitrary’ despite the relief

afforded ‘the purse of the motor owning public’.

“It may be legitimate for the Legislature to intervene in

the increasing costs of automobile insurance. But the means

A6él

(fn. 24 cont'd.)

selected by the Legislature to do so must be reasonably

related to the object sought to be attained. Denying guest

passengers recovery for ordinary negligence is no more

reasonably related to the objective of lower insurance rates

than would be denying recovery to persons injured on

Thursdays or men between 50 and 60 years of age.

“Guest passengers as a class are not better able to bear

the cost of lower premiums for the motor owning public.

As a class, they are not necessarily all wealthy nor do they

necessarily all have especial sources of recovery. Those who

do not have other sources of recovery are forced to exhaust

their own resources and may become public charges.” 394

Mich 655, 677-678.

Justice Levin further opined that it was even uncertain whether

governmental efforts to reduce costs and thereby protect the public

purse were sufficient justification for legislative selection of a

similarly situated class for disparate treatment. ,

Analogous to the scenario confronted by this Court in Manistee

Bank, this case before us involves governmental benefit recipients

who pay the same premium as private insureds, suffer the same

losses as private insureds, and are governed by the identical no-fault

benefit scheme as private insureds. Yet, when it comes time tor the

no-fault insurer to compensate loss, the insurer is permitted to

reduce its out-of-pocket liability with respect to governmental

recipients while it must fully compensate the private insured out: of

the same pocket, while in both instances championing the notion

that this disparate treatment is undertaken in an attempt to reduce

premium costs for all insureds. Much like the constitutional plight

confronted by guests in Manistee Bank, we can perceive no rational

relationship between this class segregation and premium reduction;

in fact, it appears that the governmental recipient has effectively

paid a higher premium for reduced recovery.

A62

25

Other jurisdictions have similarly held such statutory schemes

reducing an insured’s recovery by claims compensable under

disability benefit laws by the amount paid out of worker's

compensation funds to be invalid as contrary to public policy. See,

e.g., Allied Mutual Ins Co v Larriva, 19 Ariz App 385; 507 P2d 997

(1973); Travelers Ins Co v National Farmers Union Property & Casualty

Co, 252 Ark 624; 480 SW2d 585 (1972). The Court of Appeals aptly

quoted the following language from the Travelers Insurance Co

decision:

“ “The right claimed by NFU [the insurer] would simply

provide it with a windfall in the case of one covered by the

workmen’s compensation laws. The purpose of the

Uninsured Motorist Act was to protect the insured, not the

insurer.’ ‘’ 70 Mich App 487, 497.

*» Defendant also cites the Florida Supreme Court's decision in

Lasky v State Farm Ins Co, 296 So 2d 9 (Fla, 1974), for the proposition

that the present scheme is not violative of equal protection. Indeed,

this was the result reached by that Court; we are not bound,

however, bythe holdings of other state supreme courts although

such authority is frequently considered in our deliberations if

well-reasoned and persuasive. We do not find Lasky to fall into that

latter category of persuasiveness as the Florida Supreme Court's

constitutional analysis of the set-off scheme presented for its review

is devoid of policy discussion and lacks the citation of any legal

authority.

A63

OPINION |

(State of Michigan

Supreme Court)

(Filed )

Heather Elizabeth O’Donnell, and Kathleen Anne

O’Donnell, Michael Brent O’Donnell and Timothy Hugh

O'Donnell, by their next friend, Heather Elizabeth

O’Donnell, Plaintiffs-Appellees, v State Farm Mutual

Automobile Insurance Company, an Illinois insurance

corporation, Defendant-Appellant. No. 58833.

BEFORE THE ENTIRE BENCH

BLAIR MOODY, JR., J. (Concurring with Williams, J.)

I agree with the general analysis employed by Justice

Williams and therefore sign his opinion. However, |

reserve judgment concerning the scope of the

Legislature’s intent to avoid duplicative recovery and

any distinction between’ contributive and

non-contributive governmental benefits.

is) Blair Moody, Jr.

A64

ORDER OF REVERSAL

(State of Michigan In the Supreme Court)

Heather Elizabeth O’Donnell and Kathleen Anne

O’Donnell, Michael Brent O’Donnell and Timothy Hugh

O’Donnell, by their next friend, Heather Anne

O'Donnell, Plaintiffs-Appellees, v State Farm Mutual

Automobile Insurance Company, an Illinois Insurance

Corporation, Defendant-Appellant. 58833.

Present the Honorable Thomas Giles Kavanagh, Chief

Justice, G. Mennen Williams, Charles L. Levin, Mary S.

Coleman, John W. Fitzgerald, James L. Ryan, Blair

Moody, Jr., Associate Justices.

This cause having been brought to this Court by

appeal from the decision of the Court of Appeals and

having been argued by counsel and due deliberation

having been had thereon by the Court, IT IS HEREBY

ORDERED that the judgment of the Court of Appeals

be REVERSED. No costs are to be taxed.

CERTIFICATION

STATE OF MICHIGAN — ss.

I, Harold Hoag, Clerk of the Supreme Court of the

State of Michigan, do hereby certify that the foregoing

is a true and correct copy of an order entered in said

court in said cause; that | have compared the same with

the original, and that it is a true transcript therefrom,

and the whole of said original order.

IN TESTIMONY WHEREOF, I have hereunto set my

hand and affixed the seal of said Supreme Court at

Lansing, this 9th day of March in the year of our Lord

one thousand nine hundred and seventy-nine.

's/ Jacqueline B. Mosse, Deputy Clerk.

A65

ORDER DENYING REHEARING

(State of Michigan in the Supreme Court)

Rehearing No. 469 Heather Elizabeth O’Donnell, and

Kathleen Anne O’Donnell, Michael Brent O’Donnell and

Timothy Hugh O’Donnell by their next friend, Heather

Elizabeth O’Donnell, Plaintiffs-Appellees, v State Farm

Mutual Automobiie Insurance Company, an Illinois

insurance corporation, Defendant-Appellant. 58833

At A Session Of The Supreme Court Of The State Of

Michigan, Held at the Supreme Court Room, in the City

of Lansing, on the 8th day of March in the year of our

Lord one thousand nine hundred and seventy-nine.

Present the Honorable Mary S. Coleman, Chief

Justice, Thomas Giles Kavanagh, G. Mennen Williams,

Charles L. Levin, John W. Fitzgerald, James L. Ryan,

Blair Moody, Jr., Associate Justices

In this cause a motion for rehearing is considered

and, on order of the Court, it is hereby DENIED.

CERTIFICATION

State of Michigan—ss. |

I, Harold Hoag, Clerk of the Supreme Court of the

State of Michigan, do hereby certify that the foregoing

is a true and correct copy of an order entered in said

court in said cause; that I have compared the same with

the original, and that it is a true transcript therefrom,

and the whole of said original order.

IN TESTIMONY WHEREOF, | have hereunto set my

hand and affixed the seal of said Supreme Court at

Lansing, this 8th day of March in the year of our Lord

one thousand nine hundred and seventy-nine.

's/ Jacqueline B. Mosse, Deputy Clerk.

A66

OPINION

(State of Michigan

Court of Appeals)

Heather Elizabeth O’Donnell, and Kathleen Anne

O'Donnell, Michael Brent O’Donnell, and Timothy

Hugh O’Donnell, by their next friend, Heather Anne

O’Donnell, Plaintiffs-Appellants, v. State Farm Mutual

Automobile Insurance Company, an Illinois insurance

corporation, Defendant-Appellee. No. 25429

Before: Bashara, P.J., and V. J. Brennan and T. M.

Burns, J].

T. M. BURNS, J.

Plaintiffs are the wife and children of Gary

O'Donnell, who was fatally injured in an automobile

accident. Mr. O’Donnell was covered by a no-fault

automobile insurance policy issued by the defendant,

and plaintiffs are dependents of decedent for purposes

of survivor's loss benefits.

Decedent’s insurance policy provided that the

maximum survivor's loss benefits would not exceed

$1,000 per 30-day period and that the amount payable

by the insurance company would be reduced by

amounts paid or payable to the survivors under state or

federal law.

Plaintiffs were entitled to the maximum benefits of

$1,000 per 30-day period for three years after decedent's

death as permitted by the no-fault act (MCLA 500.3108;

MSA 24.13108). From the monthly maximum benefits

amount, however, defendant deducted $560, the sum

plaintiffs received in social security benefits. This

deduction was made pursuant to MCLA 500.3109(1);

MSA 24.13109(1), which provides as follows:

“Benefits provided or required to be provided

under the laws of any state or the federal

A67

government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.”

Plaintiffs thus received $440 per month instead of the

$1,000 per month figure set out in the insurance policy.

Plaintiffs filed a complaint in circuit court alleging the

defendant breached the insurance contract by not

paying the full $1,000 per month in benefits. Plaintiffs

also sought a declaration of rights relative to the

constitutionality of § 3109 of the no-fault act, which

provides for the deduction of governmental benefits

from the personal protection insurance benefits.

Defendant filed a motion for summary judgment,

alleging that plaintiffs failed to state a claim upon

which relief could be granted in that the reduction of

benefits under the policy was in compliance with state

law. Defendant also asserted that the policy constituted

a contract between private parties and that since no

state action was involved, no claim of constitutional

violation could be maintained. ,

The trial court granted defendant's motion for

summary judgment. The order stated that the complaint

failed to state a cause of action for the reasons that no

breach of any provision of the contract was alleged, and

that defendant, in complying with the no-fault act, was

not engaged in state action and, therefore, any claim

that the contract itself was unconstitutional was not

supported as a matter of law.

On appeal, plaintiffs argue that the trial court erred

reversibly in granting summary judgment and contend

that § 3109 of the no-fault act is unconstitutional.

A68

It is argued that MCLA 500.3109(1); MSA 24.13109(1)

violates the equal protection guarantees of the U.S. and

Michigan Constitutions. This Court has recently

enunciated the standard of review of legislation claimed

to be so defective. See Shavers v Attorney General, 65

Mich App 355; — NW2d — (1975). Cf. Manistee Bank &

Trust Co v McGowan, 394 Mich 655; 232 NW2d 636

(1975), and Fox v Employment Security Commission, 379

Mich 579; 153 NW2d 644 (1967).

Generally, legislative classification should be

presumed valid, as the Legislature has broad discretion

in distinguishing between different classes. “The

Legislature must be free to experiment without being

required to attain ‘mathematical nicety’ in its

formulation of remedies to social and economic

problems.”’ Manistee Bank & Trust Co v McGowan, supra,

at 680; 232 NW2d at ——. But legislative classification

must not be arbitrary or unreasonable, it must be

germane to the object of the legislation, and it must be

made uniform in its operation upon all persons of the

class to which it naturally applies. Fox v Employment

Security Commission, supra.

“Even under the minimum scrutiny test

applied when innovative legislation § is

challenged on equal protection grounds, the

legislation must be examined to see if its

classifications are reasonable, and bear some

reasonable relationship to the object of the

legislation. While it is not the judiciary’s task to

second-guess legislative wisdom or to speculate

on the possibility of more precise line-

drawing by the Legislature, the decision on

reasonableness cannot be avoided.” Shavers v

Attorney General, supra at 369; — NW2d at —.

A69

In the Shavers v Attorney General challenge of the

no-fault act, Judge Gilmore of the Wayne County

Circuit Court found that § 3109(1) violates the equal

Protection clauses of the U.S. and Michigan

Constitutions. In this Court’s decision in Shavers, we

vacated that ruling because the question was not

properly justiciable. In the instant case, however, we

are squarely faced with a “case of actual controversy”

concerning the validity of § 3109(1).

The effect of § 3109(1) is to reduce no-fault benefits

by any compensation paid under any state or federal

laws, such as workmen’s compensation and _ social

security benefits. Thus, no-fault recovery is reduced by

governmental collateral sources but not by any private

insurance sources. The basic purpose of no-fault is to

insure compensation of persons injured in automobile

accidents. But the effect of § 3109(1) is to allow both

no-fault benefits and private insurance benefits to those

who have such private insurance, yet reduces no-fault

benefits by any benefits received under a governmental

program. Thus, those who have no private insurance or

who cannot afford such insurance receive fewer benefits

because of that fact. We find this section to be patently

unreasonable and discriminatory.

Presumably, the purpose of § 3109(1) is to reduce the

overall cost of the no-fault program by eliminating

duplicative recovery. If the insurer has to pay less, he

can charge less. As recognized in Shavers, the reduction

of the cost of insurance is a proper basis for legislative

classification and prohibitive cost was a problem that

needed solution. But the fact that a problem exists does

not permit arbitrary means of solving it and assuming

that § 31091) reduces costs, such savings alone do not

justify an essentially arbitrary classification. Manistee

Bank & Trust Co v McGowan, supra, at 677; — NW2d —.

Cf. Grace v Howlett, 51 Ill 2d 478; 283 NE2d 474, 478

(1972).

A70

Section 3109(1) is very broad — it covers any

collateral governmental source. No-fault systems in

other states include collateral source set-off provisions,

but in Illinois and Florida, for example, the set-off

provisions apply only to workmen’s compensation

benefits. It might be argued that the latter type of

set-off provision is reasonable because the workmen's

compensation benefits are provided without cost to the

beneficiary while private collateral source benefits are

not.' Cf. Grace v Howlett, supra, Chief Justice

Underwood, dissenting. The argument is persuasive.

Section 3109(1), however, is not limited to governmental

benefits provided without cost to the beneficiary. The

provision requires reduction of recovery by benefits

which are in a very real sense “paid for’’ by the

“insured”, such as under social security, or benefits

which are in the nature of employee benefits to

government employees and veterans.? In this case the

' This type of no-fault set-off provision (reducing no fault

benefits by workmen's compensation benefits received) has been

upheld by the Florida Supreme Court. Lasky v State Farm Insurance

Co, 296 So 2d 9, 21 (S Ct Fla, 1974)

2 In Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231

(1971), the U.S. Supreme Court held that § 224 of the Social Security

Act, which provides for the reduction of social security disability

benefits to any person also receiving workmen's compensation, is

not unconstitutional as making an arbitrary discrimination between

workmen's compenstion benefits and disability compensation from

private insurance or from tort claim awards. Significant in

Richardson is the Court's implicit holding that as long as there is a

legitimate purpose served by a set-off provision, the provision will

not be considered an invidious classification because inapplicable to

recipients of private benefits.

But in the case at bar, grave doubts exist as to presence of a

legitimate purpose being served by the set-off provision. It is said

that the purpose of § 31091) is to prevent duplicative recovery of

benefits. What is legitimate about that? It is asserted that the

provision reduces the cost of no-fault coverage, but there has not

been a hint of proof presented to this Court to so prove. Aided only

by personal experience, one is inclined to conclude that the

“lowered” costs are illusory.

A71

beneficiary's no-fault benefits are reduced by

governmental insurance the insured has paid for but

not by private insurance for which he has paid. While

this raises a fundamental due process issue (see ¢.g.,

Flemming v Nestor, 363 US 603; 80 S Ct 1367; 4 L Ed 2d

1435), the principal evil of § 31091) is its arbitrary

application. Those who can afford private insurance to

supplement no-fault benefits are permitted duplicative

recovery while those who cannot afford such are denied

duplicative recovery.

An analogous problem has existed under the

uninsured motorist systems. Courts have held that

policy exclusions reducing an insured’s recovery by

amounts paid out of workmen’s compensation funds

and disability benefit laws are invalid and against

public policy. See e.g., Allied Mutual Insurance Company

v Larriva, 19 Ariz App 385; 507 P2d 997 (1973).* In

Traveler's Insurance Co v National Farms Union Property

& Casualty Co, 252 Ark 624, 632; 480 SW2d 585, 591

(1972), the Court stated:

“The right claimed by [the insurer] would

simply provide it with a windfall in the case of

one covered by the workmen’s compensation

laws. The purpose of the uninsured motorist act

was to protect the insured, not the insurer.’

* 24 ALR 2d 1353 covers the point.

* The “windfall” claim may not be entirely correct as,

presumably, the insurer has considered the set-off provision in

setting its rates.

A72

In Bowser v Jacobs, 36 Mich App 320; 194 NW2d 110

(1971), this Court was concerned with the

constitutionality of a section of the Motor Vehicle

Accident Claims Act which prevented those covered by

workmen’s compensation from recovering under the

act. The plaintiffs were injured while in the course of

their employment by uninsured motorists. They

received workmen’s compensation and sought recovery

against the uninsured motorist fund. The secretary of

state sought dismissal of the suits, relying upon a

section of the act which barred recovery by an injured

person if he was covered by workmen's compensation.

It was demonstrated that those who had private

insurance coverage were not similarly barred from

recovery against the fund. This Court struck down

the legislative classification as unconstitutionally

discriminatory. Like the legislative classification in

Bowser, § 31091) which allows personal protection

benefits plus private insurance benefits to one group,

but deducts from personal protection benefits anything

received from a government program is arbitrary and

unreasonable. We find no legitimate purpose for

establishing such a distinction which arbitrarily

discriminates against those who receive certain

governmental benefits.

We find MCLA 500.3109(1); MSA 24.13109(1) to be

unconstitutional. As such, the act is void and of no

effect as of the date of enactment. Briggs v Campbell,

Wyant & Cannon, 379 Mich 160; 150 NW2d 752 (1967).°

* See 16 CJS, Constitutional Law, § 101.

A73

As such, the statute confers no rights upon and affords

no protection to defendant. Norton v Shelby County, 118

US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886).

Defendant's argument that the set-off provision in the

insurance contract was the result of the bargain reached

by contracting parties and thus is not affected by the

validity or invalidity of § 31091) is egregious. The

terms of the statute are mandatory. Without the

“sanction” of such a statute, the contract provision is

patently offensive to public policy and as such, the

provision is invalid.°

The set-off provision in the contract is void. This

cause is remanded to the trial court for entry of

judgment in plaintiffs’ favor. No costs.

6

See, e.g., State ex rel Terbovich v Board of Comm'rs of Wyandotte

County, 161 Kan 700; 171 P2d 777 (1946), State ex rel Taylor v Carolina

Racing Association, 241 NC 80; 84 SE2d 390 (1954).

OPINION

(State of Michigan

Court of Appeals)

Heather Elizabeth O’Donnell, and Kathleen Anne

O'Donnell, Michael Brent O’Donnell, and Timothy

Hugh O'Donnell, by their next friend, Heather Anne

O’Donnell, Plaintiffs-Appellants, v State Farm Mutual

Automobile Insurance Company, an Illinois insurance

corporation, Defendant-Appellee. Docket # 25429.

Before Bashara, P.J., and V. J. Brennan and T. M.

Burns, JJ.

V. J. BRENNAN, J., Concurrence with Judge T. M.

Burns’ Opinion.

I concur with Judge T. M. Burns’ opinion.

A74

I see no corollary as to who gets what or is getting what

from various sources whether they be social

security, stock dividends, insurance policies, etc., when

it comes down to insurance benefits received as a result

of injuries incurred from accidents.

‘

The insurance companies successfully lobbied “no

fault’’' under the guise of necessary legislation which

would inevitably greatly reduce insurance costs which

they could and would pass on to the public in the form

of reduced policy premiums.

I have yet to see the lower premiums but have,

unfortunately, on the contrary seen increased premiums

for the same coverage. These so-called savings have not

been passed on to the public — and there are, no

doubt, some savings present as the insurance

companies, under this provision, now have picked up

“Uncle Sam” and the state government as their partners

in underwriting these policies.

Before ‘‘no fault’’ there was no reduction or

subtraction in jury verdicts of amounts received from

social security or other state or federal government

benefits.

The provision reads:

‘Benefits provided or required to be provided

under the laws of any state or the federal

government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.” MCLA 500.3109(1); MSA

24.13109(1).

' Personal and Property Protection and Residual Liability

Insurance Act, MCLA 500.3101 through 500.3179; MSA 24.13101

through 24.13179.

A75

From the way it reads one could concur that all

former state and federal employees on retirement could

have subtracted from their accident insurance proceeds

the amount of their monthly pension.

Why the provision in the first place; is a person on

social security more susceptible to accidents than one

who is not? Is social security's purpose to compensate

our senior citizens for prospective accident cost needs?

How about a deduction from the deduction in favor of

the recipient for the contributions by the recipient into

the social security fund over the many years before he

or she became eligible for social security. These

observations are bordering on the obscure yet they

could follow from the logic behind the present law.

As a matter of judgment I can find no reasonableness

in this legislative classification.

I, too, would declare the set-off provision in the

contract as void.

A76

OPINION

(State of Michigan

Court of Appeals)

Heather Elizabeth O’Donnell, and Kathleen Anne

O’Donnell, Michael Brent O’Donnell, and Timothy

Hugh O’Donnell, by their next friend, Heather Ann

O’Donnell, Plaintiffs-Appellants, v State Farm Mutual

Automobile Insurance Compan, an Illinois insurance

corporation, Defendant-Appellee. No. 25429.

Before: Bashara, P.J., and V.J. Brennan, and T.M.

Burns, JJ.

Bashara, P.J., dissenting.

I respectfully dissent.

A brief review of the facts is necessary to this

discussion. Plaintiff's decedent was fatally injured in an

automobile collision on February 19, 1975. The decedent

was insured under a no-fault automobile insurance

policy issued by the defendant. The policy provided in

relevant part:

“(5) the amount payable by the company

under the terms of this insurance shall be

reduced by

(a) the amount paid, payable, or required

to be provided under the laws of any

state or federal government; * * *.”

A77

The reduction in payments allowed by paragraph

(5)(a) of the insurance policy is provided for in MCLA

500.2101(1); MSA 24.13109(1), which states:

(1) Benefits provided or required to be

provided under the laws of any state or the

federal government shall be subtracted from the

personal protection insurance benefits otherwise

payable for the injury.”

The plaintiffs qualified for the maximum survivors

loss of $1,000 per 30 day period. They also qualified for

social security benefits of approximately $550 per

month. Pursuant to paragraph (5)(a) of the insurance

policy, the defendant reduced the insurance benefits

$550 and paid the plaintiff approximately $450 per

month.

Plaintiffs brought this action to recover the difference.

Count I of plaintiff's complaint alleged breach of

contract. Count II requested declaratory judgment

that MCLA 500.3101(1); MSA 28.13109(1), was

unconstitutional as a violation of equal protection and

due process of law and veid as incorporated in the

insurance policy.

Defendant moved for summary judgment on both

counts grounded on GCR 1963, 117.2(1) and (3).

Defendant failed to file a supporting affidavit.

Consequently, the trial court only considered whether

the complaint failed to state a claim upon which relief

could be granted. GCR 1963, 117.2(1).

The court held that count I failed to allege facts

constituting breach of contract because the insurance

contract provided for a reduction in benefits in the

amount ‘‘required to be provided under the laws of any

A78

state or federal government.” The court further ruled

that count II failed to state a claim because the contract

was between private parties. Therefore, a constitutional

attack could not be sustained, where there existed no

state action.

A motion for summary judgment brought under GCR

1963, 117.2(1) merely tests the legal sufficiency of the

claim as determined from the pleadings alone. Todd v

Biglow, 51 Mich App 346, 349; 213 NW2d 733 (1974), lv

den 391 Mich 816 (1974), 1 Honigman & Hawkins (2d

ed), Committee Notes to GCR 1963, 117, p 353, 355. For

the purposes of that motion, both at the trial and

appellate ievels, every well pled allegation in the

complaint is assumed to be true. Bielski v Wolverine

Insurance Co, 379 Mich 280, 283; 150 NW2d 708 (1967).

The test is whether the plaintiff's claim, on the

pleadings, is so clearly unenforceable as a matter of law

that no factual development can possibly justify a right

to recovery. Crowther v Ross Chemical & Mfg Co, 42

Mich App 426, 431; 202 NW2d 577 (1972).

I am of the opinion the trial judge correctly ruled that

count I failed to allege breach of contract. The facts pled

do not allege breach of contract because, the insurance

contract provided for a reduction in no-fault benefits to

the extent of government benefits received.

The heart of this lawsuit is count II. The proscriptions

of the Fourteenth Amendment, US Const, Am XIV,

apply to actions of the state and not merely private

conduct. Shelly v Kraemer, 334 US 1; 68 S Ct 836; 92 Led

1161 (1947). The Fourteenth Amendment applies to all

state legislation which impairs due process or denies

equal protection. Civil Rights Cases, 109 US 3, 11; 3S Ct

18; 27 Led 835 (1883).

A79

It is undisputed that the basis for paragraph (5)(a) of *

the insurance policy is the legislative enactment of

MCLA 500.3109(1); MSA 24.13109(1). This is a state

action. See Peterson v City of Greenville, 272 US 244; 83

S Ct 1119; 10 L Ed 323 (1963). I believe the trial judge

erred in determining there was no state action, and

consequently failing to consider the constitutional

questions raised.

Appellate courts should not decide constitutional

questions not passed upon by the trial court. Cortez v

International Union, United Automobile, Aircraft &

Agricultural Workers of America (UAW-CIO), 339 Mich

446, 453; 64 NW2d 636 (1954), Wilson v Boyer, 269 Mich

197, 199; 256 NW2d 854 (1934). In my opinion the

proper procedure is to remand to the trial judge for

consideration of the constitutional questions raised in

the action for declaratory judgment.' However, because

my brothers found it necessary to consider the

constitutional question of equal protection, I feel

compelled to respond.

A classification must be reasonable not arbitrary, so

that all persons similarly situated are treated alike. Reed

v Reed, 404 US 71, 76; 92 SCt 251; 30 L Ed 2d 225

(1971), F. S. Royster Guano Co v Virginia, 253 US 412,

415; 40 S Ct 560; 64 L Ed 989 (1920). The equal

protection clause does not deny the state the power to

treat different classes of persons in different ways.

' A remand seems particularly appropriate in light of the

Majority’s statement at p 7 n 2, that no proof was presented that

MCLA 500.2109; MSA 24.13109, results in cost reduction. No proofs

were presented because the dispute was resolved summarily without

consideration of the constitutional question.

A80

Railway Express Agency v New York, 226 US 106; 69S Ct

463; 93 L Ed 533 (1949). Barbier v Connolly, 113 US 27;

5 SCt 357; 28 L Ed 923 (1885). The grossest

discrimination can sometimes lie in treating things that

are different as though they were exactly alike. Jenness v

Fortson, 403 US 431, 442; 91 S Ct 1970; 29 L Ed 2d 554

(1971). ;

The majority has correctly determined that a

discrimination exists under MCLA 500.3109(1); MSA

24.13109(1), which requires public benefits to be setoff

against no-fault insurance proceeds, while mandating

no such reduction for private insurance benefits. The

majority reasons that if the purpose of the provision is

to reduce costs by eliminating duplicative recovery,

such a classification is unreasonable and arbitrary, as it

only operates on those who receive public benefits.

In my opinion the majority has combined two

different classes and treated them as if they were alike.

The same error occurred in Richardson v Belcher, 404 US

578; 92 S Ct 254; 30 L Ed 2d 231 (1971). In Richardson

the appellee attacked the Social Security Act, § 224, 79

Stat 406 (1968), 42 USC 424a, which permitted reduction

of his social security benefits in the amount of

workmen's compensation benefits received by him.

Appellee claimed the statute violated the Due Process

Clause of the Fifth Amendment, US Const, Am V,?

because it discriminated between those disabled

employees who received workmen’s compensation and

those who received compensation from _ private

insurance.

> The Federal Government's duty under the Due Process Clause

of the Fifth Amendment includes guaranteeing all citizens equal

protection of the laws. Bolling v Sharpe, 347 US 497; 74S Ct 693; 98

L Ed 884 (1954).

A81

The United States Supreme Court rejected any

Suggestion that the classes were alike. The government

benefits were all part of a statutory scheme to insure a

minimum threshold of recovery and to provide for

needs not previously met by private insurance. The

Court determined the classification could be justified by

the conclusion of Congress that federal duplication of

benefits could gradually weaken or atrophy state

workmen’s compensation systems. Furthermore, the

Court refused to consider whether the purposes of

Congress might have been better served had the offset

provisions been extended to private insurance on the

grounds that it would exceed their constitutional

authority.

“In the area of economics and social welfare, a State

does not violate the Equal Protection Clause merely

because the classifiction has some ‘reasonable basis’, it

does not offend the Constitution simply because the

classification is not made with mathematical nicety or

because in practice it results in some inequality.’ ”

Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25

L Ed 2d 491 (1970).

Social security as well as other governmental

programs, such as workmen's compensation, benefits

are part of an overall statutory scheme established as a

matter of public policy to provide minimum

compensation for all persons otherwise qualifying for

benefits under the programs. See Lasky v State Farm

Insurance Co, 296 So 2d 9, 21 (Fla 1974), reh den, 43

Fordham L R 379, 396. These programs were intended

to fill a void not adequately covered by private

insurance. See Richardson v Belcher, supra, 404 US 83-84.

As such, a rational basis exists for distinguishing the

classes.

A82

The legislature could rationally conclude that

reduction of no-fault proceeds to the extent one receives

public benefits would eliminate duplicate recovery and

reduce costs. Whether the legislature should have gone

further by providing an offset for private insurance is

not for us to consider under our limited function as a

reviewing court under the constitution. Richardson v

Belcher, supra, 202 US 84. The Equal Protection Clause

does not preclude the State from taking one step at a

time, addressing itself to the phase of the problem that

seems most acute, while neglecting other phases of the

problem. Geduldig v Aiello, 417 US 484, 495; 94 SCt

2485; 41 L Ed 2d 256 (1974), Williamson v Lee Optical Co,

348 US 843, 849; 75 S Ct 461; 99 L Ed 563 (1955).

Assuming arguendo the Majority is correct that the

classes are indistinguishable, their analysis still does

not justify the conclusion that there is a deprivation of

equal protection of the law. San Antonio Independent

School District v Rodriguez, 411 US 1, 20; 93 S Ct 1278, 36

L Ed 2d 16 (1973), reh den 411 US 959; 93 S Ct 1919; 36 L

Ed 2d 418 (1973), analyzed prior precedent to determine

the common characteristics of classes discriminated

against by inability to pay. The Court stated:

“The individuals, or groups of individuals,

who constituted the class discriminated against

in our prior cases shared two distinguishing

characteristics: because of their impecunity they

were completely unable to pay for some desired

benefit, and as a consequence, they sustained an

absolute deprivation of a meaningful opportunity to

enjoy that benefit.” (Emphasis supplied.)

That is not the case here. Under the statutory scheme

everyone participating in no-fault is entitled to certain

minimum benefits. The fact that some individuals are

unable to purchase private insurance is of no moment.

A83

As long as everyone has an opportunity to enjoy a

minimum statutory benefit, there is no absolute

deprivation. Any discrimination that might exist is

insufficient to justify invoking the equal protection

clause.

| would reverse the trial judge’s summary judgment

as to count II] and remand for independent

consideration of the constitutionality of MCLA

500.2109(1); MSA 24.13109(1).

ORDER GRANTING DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

(State of Michigan

In the Circuit Court for the County of Washtenaw)

(Filed August 19, 1975)

Heather Elizabeth O'Donnell; et al., Plaintiff, vs State

Farm Mutual Automobile Insurance Company, an

Illinois Insurance Company, Defendant. File Number:

75 10205 CK.

At a session of said Court held in the City of Ann

Arbor, Michigan this 19th day of August, 1975.

Present: The Honorable ROSS W. CAMPBELL

Circuit Judge

Defendant's Motion for Summary Judgment having

come on to be heard and oral argument having been

held and conclusions of law having been entered by the

A84

Court with respect to the legal issues raised in

Defendant’s motion, such conclusions of law being

more specifically stated as follows:

1. That Count I of Plaintiffs’ Complaint fails to state

a cause of action for the reason that Plaintiffs’

Complaint fails to state facts which allege that the

Defendant breached any of the provisions of said

contract.

2. That Count II of Plaintiffs’ Complaint fails to state

a cause of action in that State Farm Mutual Automobile

Insurance Company, in entering a contract of insurance

which conforms to the requirements of The Michigan

‘Statutes, and in particular MCLA 500.3109, is not itself

engaged in state action; consequently, any claim that

the contract is itself unconstitutional is unsupportable

as a matter of law.

IT IS HEREBY ORDERED AND ADJUDGED that

Defendant's Motion for Summary Judgment be, and the

same hereby is, granted.

is) Ross W. Campbell

Circuit Court Judge

Approved as to Form Only:

CALDER AND KIRKENDALL DeVINE AND DeVINE

By /s/ Robert E. Logeman By: /s) Allyn D. Kantor

Attorney for Plaintiff Attorneys for Defendant

A85

NOTICE OF APPEAL TO THE SUPREME COURT OF

THE UNITED STATES

(State of Michigan

In the Supreme Court)

On Appeal from the Court of Appeals

(L.C. No. 72 10205 CK - C.0.A. No. 25429)

(Filed May 1, 1979)

Heather Elizabeth O’Donnell, and Kathleen Anne

O'Donnell, Michael Brent O’Donnell and Timothy Hugh

O'Donnell, by their next friend, Heather Elizabeth

O'Donnell, Plaintiffs-Appellees, vs State Farm Mutual

Automobile Insurance Company, an Illinois insurance

corporation, Defendant-Appellant. Supreme Court No.

58833.

Notice is hereby given that HEATHER ELIZARETH

O'DONNELL, and KATHLEEN ANNE O’DONNELL,

MICHAEL BRENT O’DONNELL and TIMOTHY HUGH

O’DONNELL, by their next friend, HEATHER

ELIZABETH O’DONNELL, the Plaintiffs-Appellees in

the Michigan Supreme Court, hereby appeals as

appellants to. the Supreme Court of the United States

from the final judgment of the Supreme Court of the

State of Michigan, reversing the Court of Appeals and

affirming the trial court’s entry of Summary Judgment,

entered in this action on January 4, 1979, and which a

A86

timely motion for rehearing was denied in an order

dated March 8, 1979.

This appeal is taken pursuant to 28 U.S.C. §1257(2).

's) Robert E. Logeman (co-counsel with

‘Eugene F. Black in the U.S.

Supreme Court)

as counsel for Plaintiffs- Appellees

in the Michigan Supreme Court and for

Appellants in the United States

Supreme Court

301 West Michigan Avenue

Suite Four Hundred

Ypsilanti, Michigan 48197

Telephone (313) 482-7168

Twenty-Second Judicial Circuit

Washtenaw County, Michigan—ss.

I hereby certify that the foregoing is a true copy of

the original on file in this Court and cause. Valid Only

With Embossed Seal.

Dated: 5-1-79

ROBERT M. HARRISON

County Clerk

By /si/ Marjorie S. Gensley

Deputy

A87

AFFIDAVIT OF SERVICE

(State of Michigan

In the Supreme Court)

On Appeal from the Court of Appeals

State of Michigan

County of Washtenaw—ss.

I, ROBERT E. LOGEMAN, depose and say that I am

an attorney in the office of CALDER, KIRKENDALL

AND LOGEMAN, P.C., an attorney of record for

HEATHER ELIZABETH O’DONNELL, and KATHLEEN

ANNE O’DONNELL, MICHAEL BRENT O’/DONNELL

and TIMOTHY HUGH O’DONNELL, by their next

friend HEATHER’ ELIZABETH O’DONNELL,

Appellants in the United States Supreme Court and

Plaintiffs-Appellees in the Michigan Supreme Court,

and that on May Ist, 1979, pursuant to Rule 33, Rules of

the Supreme Court, I served three copies of the attached

Notice of Appeal to the Supreme Court of the United

States on each of the parties required to be served

herein, as follows:

On STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, an Illinois Insurance

Corporation, Defendant/Appellant in the Michigan

Supreme Court and Appellee in the United States

Supreme Court, by mailing the copies in a duly

addressed envelope, with first class postage prepaid, to

BODMAN, LONGLEY & DAHLING, by Theodore

Souris and James R. Buschmann, co-counsel of record

for said STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, an Illinois Insurance

Corporation, at their office at 34th Floor, 100

Renaissance Center, Detroit, Michigan 48243.

A88&

On STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, an Illinois Insurance

Corporation, Defendant-Appellant in the Michigan

Supreme Court and Appellee in the United States

Supreme Court, by mailing the copies in a duly

addressed envelope, with first class postage prepaid, to

DeVINE, DeVINE, KANTOR & SERR, by Allyn D.

Kantor, co-counsel of record for said STATE FARM

MUTUAL AUTOMOBILE INSURANCE COMPANY, an

Illinois Insurance Corporation, at their office at 300

National Bank & Trust Building, Ann Arbor, Michigan

48108. ©

ALL PARTIES REQUIRED TO BE SERVED HAVE

BEEN SERVED.

/s) ROBERT E. LOGEMAN

co-counsel with Eugene F. Black, of

the United States Supreme Court Bar

Subscribed and sworn to before me this Ist day of May,

1979,

is) Cheryl L. Poland, Notary Public

Washtenaw County, State of Michigan

My commission expires: 4-25-81

Twenty-Second judicial Circuit

Washtenaw County, Michigan—ss.

I hereby certify that the foregoing is a true copy of

the original on file in this Court and cause. VALID

ONLY WITH EMBOSSED SEAL.

Dated: 5-1-79

ROBERT M. HARRISON, County Clerk

By /s)/ Maynie S. Gensley

Deputy

A89

CONSTITUTIONAL PROVISIONS AND

OTHER STATUTES INVOLVED

US CONST AM XIV, Sec 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”’

MCLA 500.3101(1)

“The owner or registrant of a motor vehicle

required to be registered in this state shall

maintain security for payment of benefits under

personal protection insurance, property

protection insurance, and residual liability

insurance. Security shall be in_ effect

continuously during the period of registration of

the motor vehicle.”

Vol. 28, 1978-1979 Supplement, at 178

MCLA 500.3102

“(1) A nonresident owner or registrant of a

motor vehicle not registered in this state shall

not operate or permit the vehicle to be operated

in this state for an aggregate of more than 30

days in any calendar year unless he continuously

maintains security for the payment of benefits.

A90

(2) An owner or registrant of a motor vehicle

with respect to which security is required who

operates the motor vehicle or permits it to be

operated upon a public highway in this state

without having in full force and effect security

complying with this section or sections 3101' or

3103? is guilty of a misdemeanor. Any other

person who operates a motor vehicle upon a

public highway in this state with the knowledge

that the owner or registrant does not have

security in full force and effect is guilty of a

misdemeanor. A _ person convicted of a

misdemeanor under this section shall have his

license and, if an owner or registrant, his

registration revoked and may be fined not less

than $100.00 nor more than $500.00 or

imprisoned for not more than 1 year or both.”

(footnotes omitted.)

Vol. 28, 1978-1979 Supplement, at 181

MCLA 500.3105(1), (2), (3)

“(1) Under personal protection insurance an

insurer is liable to pay benefits for accidental

bodily injury arising out of the ownership,

operation, maintenance or use of a motor vehicle

as a motor vehicle, subject to the provisions of

this chapter.

(2) Personal protection insurance benefits are

due under this chapter without regard to fault.

(3) Bodily injury includes death resulting

therefrom and damage to or loss of a person's

prosthetic devices in connection with the

injury.”

Vol. 28, 1978-1979 Supplement, at 182

A91

MCLA 500.3108

“Personal protection insurance benefits are

payable for a survivors’ loss which consists of a

loss, after the date on which the deceased died,

of contributions of tangible things of economic

value, not including services, that dependents of

the deceased at the time of his death would have

received for support during their dependency

from the deceased if he had not suffered the

accidental bodily injury causing death and

expenses, not exceeding $20.00 per day,

reasonably incurred by these dependents during

their dependency and after the date on which

the deceased died in obtaining ordinary and

necessary services in lieu of those that the

deceased would have performed for their benefit

if he had not suffered the injury causing death.

The benefits payable for survivors’ loss in

connection with the death of a person in a single

30-day period shall not exceed $1,000.00 and is

not payable beyond the first 3 years after the

date of the accident.”

Vol. 28, 1978-1979 Supplement, at 184

MCLA 500.3109(a)

“An insurer providing personal protection

insurance benefits shall offer, at appropriately

reduced premium rates, deductibles and

_ exclusions reasonably related to other health and

accident coverage on the insured. The

deductibles and exclusions required to be offered

by this section shall be subject to prior approval

by the commissioner and shall apply only to

benefits payable to the person named in the

A92 »

policy the spouse of the insured and any relative

of eithcr domiciled in the same household.”

P.A. 1956, No. 218, § 3100a, added by P.A. 1974,

No. 72, § 1, Eff. June 3, 1974.

Vol. 28, 1978-1979 Supplement, at 186

MCLA 500.3110(1), (a), (c)

(1) The following persons are conclusively

presumed to be dependents of a deceased

person:

(a) A wife is dependent on a husband with

whom she lives at the time of his death... .

(c) A child while under the age of 18 years, or

over that age but physically or mentally

incapacitated from earning, is dependent on the

parent with whom he lives or from whom he

‘ receives support regularly at the time of the

death of the parent.”

Vol. 28, 1978-1979 Supplement, at 185

1973 N.Y. Laws, Chp. 13, § 671 (2) (b)

2. ‘first party benefits’ means payments to

reimburse a person for basic economic loss

on account of personal injury arising out of

the use or operation of a motor vehicle in

this state, less:

(b) amounts recovered or recoverable on

account of such injury under state or

federal laws providing social security

disability benefits, or workman’s

compensation benefits; and... .

1973 N.Y. Laws, Vol. 1, at p. 5 - 7

A93

1974 Pa. Laws, No. 176, § 206(a) Net loss.

(a) General. — Except as provided in section

108(a) (3) of this act, all benefits or advantages

(less reasonably incurred collection costs) that an

individual receives or is entitled to receive from

social security (except those benefits provided

under Title XIX of the Social Security Act and

except those medicare benefits to which a

person’s entitlement depends upon use of his

so-called ‘‘life-time reserve’’ of benefit days)

workmen’s compensation, any State-required

temporary, nonoccupational disability insurance,

and all other benefits (except the proceeds of life

insurance) received by or available to an

individual because of the injury from any

government, unless the law authorizing or

providing for such benefits or advantages makes

them excess or secondary to the benefits in

accordance with this act, shall be subtracied.

from loss in calculating net loss.

1974 Pa. Laws, Vol. 1, at p. 511 - 512

1973 Hawaii Sess. Laws, Act 203, Sec. 294-5

Sec. — -5(b) All no fault benefits shall be paid

secondarily and net of any benefits a person

receives because of the injury from social

security laws, workman’s compensation laws,

public assistance laws, and any medical or health

insurance policy applicable.

1973 Hawaii Sess. Laws, at p. 385

A94

1973 Nev. Stats, Vol. 1, Chapter 530, § 12, § 33

§ 12 “Net benefits payable’ means benefits

payable less all assistance or advantages a

person receives or is entitled to receive from

Social Security, the railroad retirement act,

workman’s compensation or under the

federal employer liability act as calculated in

section 33 of this act.

1973 Nev. Stat, Vol. 1, at 824

§ 33 All assistance or advantages a person

receives or is entitled to receive from social

security, the railroad retirement act,

workman’s compensation or under the

federal employer liability act by reason of an

injury arising out of the use or maintenance

of a motor vehicle are subtracted from

benefits payable in calculating net benefits

payable. Basic reparation benefits are

primary in relation to all other insurance.

1973 Nev. Stat, Vol. 1, at p. 830

1974 Ky. Acts, Chap. 385 § 12(1)

(1) All benefits or advantages a person

receives or is entitled to receive because of

injury from social security and workman’s

compensation are subtracted in calculating net

loss.

1974 Ky. Acts, at p. 756

A95

1973 N.J. Laws, Chapter 70, § 6

6. Collateral source. The benefits provided

in section 4a,b,c,d, and e, shall be payable as

loss accrues, upon written notice of such loss

and without regard to collateral sources, except

that benefits collectible under workman's

compensation insurance, employees temporary

disability benefit statutes and medicare provided

under federal law, shall be deducted from the

benefits collectible under section 4a,b,c,d, and e.

1972 N.J. Laws, Vol 1, at p. 220

(Note § 4a medical expenses, 4b income loss, 4c

essential services, 4d survivors loss)

1973 Utah Laws, Chap 55, § 7(3)

7(3) The benefits payable to any injured person

under section 6 of this act shall be reduced by:

a. Any benefits which that person

receives or is entitled to receive as a result

of an accident covered in this act under any

workman’s compensation plan or any

similar statutory plan; and

b. Any amounts which that person

receives or is entitled to receive from the

United States or any of its agencies because

of military enlistment, duty or service.

1973 Utah Laws, at p. 144

1971 Fla. Laws, ch 71 - 252 § 7 (4)

(4) Benefits; when due. — Benefits due from

an insurer under §§ 627.730-627.741 shall be

primary, except that benefits received under any

workmen’s compensation law or Medicaid as

provided under 42 USC 1396 et seq., shall be

credited against the benefits provided by

subsection (1) and shall be due and payable as

loss accrues, upon receipt of reasonable proof of

such loss and the amount of expenses and loss

incurred which are covered by the policy issued

under §§ 627.730 - 627.741.

1971 Fla. Laws, Vol 1, at p. 1361-1362

+

A%

H.R. 1597, 95th Cong., Ist Sess. (1977), § 210, p. 37

§210 (b) NET LOSS. — An approved State

plan shall provide that —

(1) All benefits (less reasonably

incurred collection costs) that an individual

receives, or is entitled to receive, from social _

security (except those benefits provided

under title XIX of the Social Security Act);

workmen’s compensation; any State-

required temporary, nonoccupational

disability insurance; all other benefits

(except the proceeds of life insurance)

received by or available to an individual

because of the injury from any government;

and all benefits received by or available to

an individual under an assigned claims

program under section 207(c) (2) (unless the

law authorizing or providing for such

benefits or advantages makes them excess or

secondary to no fault benefits) shall be

subtracted from loss in calculating net loss.

S. 354, 94th Cong., 2d Sess. (1975) § 208 p.

90-91

H.R. 5149, 95th Cong., Ist Sess. (1977) §208, p. 62-63

§ 208 (a) GENERAL. — Except as provided in

paragraph (3) of subsection (a) of 108 of this

Act, all benefits or advantages (less

reasonably incurred collection costs) that an

individual receives or is entitled to receive

from social security (except those benefits

provided under title XIX of the Social

Security Act), workmen's compensation, any

State-required temporary, nonoccupational

disability insurance, and all other benefits

(except the proceeds of life insurance)

received by or available to an individual

because of the injury from any government,

H.R.

2

A97

unless the law authorizing or providing for

such benefits or advantages makes them

excess or secondary to the benefits in

accordance with this Act, shall be subtracted

from loss in calculating net loss.

300, 95th Cong., Ist Sess. (1977), § 2(16), p. 5-6

8

5

a

(16) The term ‘‘net economic loss’

means, in the case of injury or death,

economic loss reduced (but not below zero)

by the amount of any benefit or payment

received (or legally entitled to be received

and actually available to the claimant) for

losses resulting from such injury or death

from any of the following sources —

(A) any public health insurance or plan;

(B) any private insurance or plan

containing explicit provisions making its

benefits primary to any benefits under a

qualifying no-fault policy.

H.R. 2508, 95th Cong., Ist Sess. (1977), § 3(9), p. 5-6

§3 (9) The term “net economic loss’’ means,

in the case of injury or death, ‘‘economic

loss” reduced (but not below zero) by the

amount of:

(A) Taxes which would have been

payable on the amount which would have

been earned but for such injury or death;

and

A98

(B) Any benefit or payment received, or

entitled to be received, for losses resulting

from such injury or death under any

provision of law or any insurance or other

source of benefits; except, benefit or

payment received, or entitled to be received

(i) in discharge of familial obligations of

support;

(ii) by way of succession at death:

(iii) as proceeds of life insurance;

(iv) as gratuities, or

(v) as proceeds of any contract, policy of

disability, health and accident, or

other insurance or other source of

benefits containing an_ explicit

provision making its benefits

supplemental to those in accordance

with the provisions of section 5(a) of

this Act, or making the benefits under

section 5(a) deductible from the

benefits under such contract, policy or

other insurance or source.

If any contract, policy of disability, health and

accident, or other source of benefits does not provide

that its benefits shall be supplemental to those under

section 5(a) of this Act or that the benefits under said

section 5(a) shall be deducted from its benefits,

economic loss shall be reduced by the amount of any

benefit or payment received, or entitled to be received,

from such contract, policy or other insurance or source.

A99

H.R. 13048, 95th Cong., 2d Sess. (1978), § 109 p. 36

S. 1381, 95th Cong., 2d Sess. (1977), p. 41-42

§ 109 (b) REDUCTION FOR BENEFITS

RECEIVED FROM GOVERNMENTS. — An

approved State plan shall provide that all

benefits (less reasonably incurred collection

costs) that an individual receives pursuant to

entitlement, or is entitled to receive, with respect

to an injury, from —

(1) social security (except benefits under

title XIX of the Social Security Act);

(2) workmen’s compensation;

(3) temporary nonoccupational disability

insurance that is required by a State; and

(4) any government (except the proceeds

of government life insurance);

shall be subtracted in calculating basic no-fault

benefits, unless the law authorizing or providing

for those benefits makes them secondary to or

duplicative of no-fault benefits.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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