Opinion
Docket No. 21, Calendar No. 49,641.
Decided October 1, 1962.
Appeal from Wayne; Rashid (Joseph G.), J. Submitted June 7, 1962. (Docket No. 21, Calendar No. 49,641.) Decided October 1, 1962.
Case by James B. Grant against Cottage Hospital Corporation, a Michigan corporation, and Mary E. McIver for personal injuries sustained during treatment at hospital. On motion cause dismissed as to hospital. Plaintiff appeals. Affirmed.
Ivan E. Barris, for plaintiff.
Feikens, Dice, Sweeney Sullivan ( John Feikens, of counsel), for defendant hospital.
The question presented by this case is whether or not a charitable institution's immunity from liability for tort is waived by the purchase of insurance.
In Parker v. Port Huron Hospital, 361 Mich. 1, this Court brought to an end the doctrine of charitable immunity from liability for torts. It was there specifically determined that the liability of such institutions should be prospective only from and after September 15, 1960. The injury to plaintiff occurred on May 27, 1959.
The trial judge, based on this Court's decision in Christie v. Board of Regents of University of Michigan, 364 Mich. 202, granted plaintiff's motion for discovery as to whether or not the defendant carried liability insurance policies. However, he also granted defendant's motion to dismiss based upon the Court's decision in Parker.
The policy of insurance is not before us nor are any of its terms or the limits of the coverage. Presumably, the insurance was purchased to guard against the contingency that the existing immunity of the institution might come to an end, or to protect the institution from claims of negligence for which it might be liable, such as injury to visitors upon the hospital's premises. Presumably, there is no assumption of liability in the policy by its terms, but merely a general coverage for tortious acts if the hospital is determined to be liable. Consequently, if the court were to find a waiver in this case, it would not be a waiver in the true sense of that word — a conscious, willing foregoing of a right — but rather an implied waiver from the acts of the parties, contrary to their actual intention.
The result contended for could enlarge considerably the liability of those institutions that secured insurance as well as the coverage of the insurance carrier, for if the purchase of insurance is found to constitute a waiver by the institution, then the institution could be subjected to suits for claims well in excess of insurance coverage. This might have the undesirable result in situations similar to this one of placing a premium on and an inducement to all institutions that have immunity to protect that immunity by carrying no insurance whatsoever. A further incongruous result would be that a person injured could secure redress for his wrong, not because of a uniform rule of law but due to the happenstance that the tortfeasor had insurance.
This Court somewhat fleetingly passed upon this question and held that the purchase of liability insurance does not operate as a waiver of existing immunity from tort liability in Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 334 (86 ALR 487); and DeGroot v. The Edison Institute, 306 Mich. 339, 343.
A number of States have likewise adopted this rule.
Stonaker v. Big Sisters Hospital (1931), 116 Cal.App. 375 ( 2 P.2d 520); Williams v. Church Home for Females (1928), 223 Ky. 355 ( 3 S.W.2d 753, 62 ALR 721); Enman v. Trustees of Boston University (1930), 270 Mass. 299 ( 170 N.E. 43); Mississippi Baptist Hospital v. Holmes (1951), 214 Miss. 906, 934 ( 55 So.2d 142, 25 ALR2d 12); Schulte v. Missionaries of La Salette Corp. of Missouri (Mo 1961, 1962), 352 S.W.2d 636; Muller v. Nebraska Methodist Hospital (1955), 160 Neb. 279 ( 70 N.W.2d 86); Woods v. Overlook Hospital Association (1949), 6 N.J. Super. 47 ( 69 A.2d 742); Herndon v. Massey (1940), 217 N.C. 610 ( 8 S.E.2d 914); Emrick v. Pennsylvania R.Y.M.C.A. (1942), 69 Ohio App. 353 ( 43 N.E.2d 733); Tomlinson v. Trustees of University of Pennsylvania (1958, ED Pa), 164 F. Supp. 353; Pierce v. Yakima Valley Memorial Hospital Association (1953), 43 Wn.2d 162 ( 260 P.2d 765); Meade v. St. Francis Hospital of Charleston (1953), 137 W. Va. 834 ( 74 S.E.2d 405); Schau v. Morgan (1942), 241 Wis. 334 ( 6 N.W.2d 212).
The majority opinion in Christie v. Board of Regents of University of Michigan, supra, is not to the contrary since the effect of that opinion was simply to require the production of insurance policies for examination in order that a plaintiff might plead. There was no determination that, once having pleaded a waiver by the purchase of insurance, the plaintiff would have pleaded a good cause of action. That issue is here now determined adversely to the pleader.
The decision of the trial judge is upheld. Costs to appellee.
KAVANAGH, SOURIS, and OTIS M. SMITH, JJ., concurred with ADAMS, J.
CARR, C.J., and DETHMERS, KELLY, and BLACK, JJ., concurred in result.