Mays v. INAAnnotate this Case
407 Mich. 165 (1979)
284 N.W.2d 256
MAYS v. INSURANCE COMPANY OF NORTH AMERICA
Docket No. 62219.
Supreme Court of Michigan.
Decided October 9, 1979.
Ford, Kriekard, Staton, Allen & Decker, P.C., for plaintiff.
WILLIAMS, J. (to reverse).
This case involves construction of the following language in a private disability insurance contract:
"The Weekly Benefit Amount shall be reduced by the weekly pro-rata portion of any benefits payable under the Workmen's Compensation Act and the primary disability monthly benefit payable under the Federal Social Security Act regardless of actual receipt of such benefit due to the Insured's failure to apply therefor (primary disability monthly benefit means the benefit relating to the Insured only and not including any additional benefit which might be payable because of the presence of dependents)." *168 Issues present for our review are: (i) whether this provision mandates a disabled employee's application for the mentioned benefits; (ii) whether reapplication, appeal or suit for suit for such benefits is required if they are initially denied; and (iii) whether costs for pursuit of such benefits must be borne by the disabled employee or by the insurance company.
The Three Rivers Rubber Company, a purchaser of an employees' group disability insurance policy from defendant Insurance Company of North America ("INA"), employed plaintiff John Mays as an engineer. Plaintiff became permanently disabled on December 10, 1970. Pursuant to its disability insurance policy, INA paid weekly benefits to plaintiff from March 20, 1971 (90 days after the date of disability) until December, 1973, amounting to 60% of plaintiff's base salary. The INA policy permitted the weekly benefit amount to be reduced by payable workers' compensation and Federal social security benefits; INA did not, however, assert its contractual right to these reductions.
Plaintiff promptly filed for both workers' compensation and social security disability benefits. The former claim was paid for 13 weeks, until those benefits were cut off because the carrier asserted nonliability. The social security claim was initially denied; as a result of a second application, filed at INA's request, disability benefits were awarded from June, 1973.
In August, 1974, plaintiff instituted suit to compel INA's payment of weekly benefits. Plaintiff simultaneously filed a petition for workers' compensation. A hearing referee found plaintiff to be *169 disabled as of December, 1970, but awarded compensation as of August, 1973, pursuant to the one-year-back rule.
Prior to jury trial on May 24, 1977, the trial court was asked to rule on the extent to which INA could offset social security disability and workers' compensation benefits from the benefit of 60% of the base weekly salary paid to plaintiff, in accordance with the provision quoted above. Based on this Court's decision in Bonney v Citizens' Mutual Automobile Ins Co, 333 Mich 435; 53 NW2d 321 (1952), the trial court ruled that the insurance policy's inclusion of the term "payable" was unambiguous as a matter of law. The court therefore concluded that INA was entitled to offset retroactively awarded and received social security disability benefits against the weekly benefits paid to plaintiff. The trial court also held that INA could offset workers' compensation benefits from the date INA became obligated under the policy, despite the fact that the workers' compensation award was from August, 1973. With minor modification, the Court of Appeals affirmed. We reverse *170 the Court of Appeals and remand the case to the trial court for a redetermination of permissible setoff.
The facts presented provoke the following questions:
(1) Was the employee under any contractual obligation to make any application for either workers' compensation or social security disability benefits?
(2) Did the employee's original application for workers' compensation, and receipt of benefits for 13 weeks, satisfy any contractual obligation the employee might have had "to apply" for compensation?
(3) When compensation benefits were subsequently terminated, was the employee required to reapply or appeal?
(4) Did the initial application for, and denial of, social security disability benefits satisfy any contractual obligation the employee might have had "to apply" for benefits?
(5) Was it incumbent upon the employee to reapply for, or appeal the denial of, disability benefits?
(6) If reapplication or appeal is mandatory for either workers' compensation or social security disability benefits, must the employee retain an attorney and bear the attendant expenses?
A partial answer to these queries can be found in the language of the contested contractual provision which states:
"The Weekly Benefit Amount shall be reduced by the *171 weekly pro-rata portion of any benefits payable under the Workmen's Compensation Act and the primary disability monthly benefit payable under the Federal Social Security Act regardless of actual receipt of such benefit due to the Insured's failure to apply therefor (primary disability monthly benefit means the benefit relating to the Insured only and not including any additional benefit which might be payable because of the presence of dependents)."
At the outset, it is significant that there is absolutely no specific language that obligates an employee to apply for either workers' compensation or social security disability benefits. The only mention of "application" is found in the statement that "regardless of actual receipt of such benefit due to the Insured's failure to apply therefor" (emphasis added), the "Weekly Benefit Amount shall be reduced".
Three reasons suggest that the "failure to apply" language relates only to the social security disability benefit and not to workers' compensation: (1) the "failure to apply" clause immediately succeeds the social security disability benefit reference; (2) directly following the "failure to apply" reference is the parenthetical clause, which applies only to the social security disability benefit; (3) wherever the provision speaks of social security disability, it uses the singular, benefit, whereas the workers' compensation reference is to benefits, plural.
While this analysis may seem super-refined, it is exact. Such analysis is appropriate when applied to often hypertechnical insurance contracts.
Moreover, since there is more efficacious notice to the employer, hence the insurer, under one system than the other, there may very well be a rational ground for utilizing the "failure to apply" *172 standard only in the case of social security disability, and not workers' compensation.
We are not required, however, to resolve these speculations, because it is hornbook law that insurance contract ambiguity is construed against the drafter, the insurer. Such contract analysis leads to the following conclusions:
(1) The insurance contract provision in question cannot be said to require any application for workers' compensation.
(2) If the employee does not apply for the social security disability benefit, the benefit which would have been payable may be set off.
Thus, the employee in this case was not obligated to make any application for workers' compensation benefits. A setoff of such benefits, even if no application was filed, cannot be countenanced under the instant provision, except when such benefits are actually received. We must, however, clarify the meaning of "failure to apply" with respect to the social security disability benefit.
As the questions set forth in Part II indicate, this case is concerned with whether a worker must (1) make an original application for benefits; (2) make reapplication or appeal if denied on the original application; and (3) pursue an application, reapplication or appeal to the extent of hiring a lawyer and suing.
The facts of this case indicate that the employee originally filed for the social security disability benefit in 1971; that application was denied at that time. If the contract requires that the employee make an original application, plaintiff fulfilled that obligation.
*173 In September, 1974, the employee reapplied for and was allowed the social security disability benefit, retroactive to June, 1973. Obviously, there is a hiatus in receipt of benefit from the time of denial in 1971 to June, 1973. Is defendant insurer entitled to a setoff, because the employee failed to reapply or appeal immediately, or can it be assumed that the insurance provision in question was satisfied by the original application?
Again, reference is made to the fact that there is no direct, specific language requiring the employee to make application. All the contract provides on the subject is that "failure to apply" triggers a setoff. In this case, the employee did apply. It certainly is arguable that the employee fulfilled all that the contract required. Since the insurer wrote the contract, any ambiguities must be determined against it. Therefore, we must conclude that the employee fulfilled all requirements relative to making application. Any action beyond original application for the social security disability benefit was the responsibility of the insurer, with an obligation of the employee to cooperate as necessary.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the trial court and Court of Appeals and remand the case to Kalamazoo Circuit Court for a redetermination of the offsets INA is to be afforded under this opinion. We direct the court to award reductions of INA's weekly benefit obligation for workmen's compensation benefits as of August, 1973 unless the award is otherwise modified by the Workmen's Compensation Appeal Board. The court should also reduce the INA benefits owed to plaintiff *174 by the amount of social security benefits the plaintiff has received. All reductions of the INA benefits to plaintiff should be offset by actual attorney's fees and costs incurred by the plaintiff in pursuing the workmen's compensation claim and the instant suit.
KAVANAGH, LEVIN, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred with WILLIAMS, J.
COLEMAN, C.J. (concurring in part; dissenting in part).
We concur with Justice WILLIAMS' disposition of the legal issues in this case. However, we do not agree that plaintiff should be awarded the "actual attorney's fees and costs incurred by the plaintiff in pursuing * * * the instant suit." Consistent with the normal practices of this Court, we would award only those expenses taxable pursuant to GCR 1963, 867.
RYAN, J., concurred with COLEMAN, C.J.NOTES
 See MCL 418.833; MSA 17.237(833).
 We do not believe the Bonney decision controls. There, the Court determined only that the term "benefits payable" in an exclusion clause was unambiguous and did not address the question who (the insured or insurer) must establish eligibility for the purpose of enabling the insurance company to obtain setoffs from payments the insured was entitled to under the contract. The Court did not have to decide the latter question because the insurance company there was not seeking to obtain setoffs, but instead was arguing nonapplicability of the policy under an exclusion clause.
 The Court of Appeals took note of the fact the workmen's compensation carrier had appealed the award and stated:
"If the Workmen's Compensation Appeal Board concludes plaintiff was not and is not entitled to compensation benefits, then those benefits would not be `payable' and defendant would be required to reimburse plaintiff for any sums plaintiff must repay to the worker's compensation carrier and defendant would not be entitled to reduce its future obligation to plaintiff." 85 Mich App 255, 257; 271 NW2d 189 (1978).