
    MIELKE v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY
    Docket No. 30914.
    Submitted October 6, 1977, at Grand Rapids.—
    Decided April 18, 1978.
    Leave to appeal applied for.
    Beverly Mielke, individually and as next friend of Jennifer Mielke, Christine Crumley and Deborah Crumley, the survivors of Theodore S. Mielke, who was fatally injured in an automobile accident, filed a complaint against his insurer, Michigan Millers Mutual Insurance Company, seeking a declaratory judgment that the governmental benefits set-off provision of Michigan’s no-fault insurance act is unconstitutional, and that, therefore, the insurer should not be allowed to enforce its policy provision allowing the reduction of the insurer’s liability for personal protection benefits due the plaintiffs by the amount of Social Security survivor’s benefits received by them. The Berrien County Circuit Court, Chester J. Byrns, J., granted plaintiff’s motion for summary judgment on the ground that the statutory provision was unconstitutional. Defendant appeals. Held:
    
    The section of the no-fault insurance act requiring benefits, which state or Federal law provide or require to be provided, to be subtracted from any recovery under a no-fault automobile policy but which does not require such subtraction where the additional benefits are voluntarily contracted for by the insured is unconstitutional because it discriminates against the class of insureds entitled to benefits required by the state or Federal law as well as ño-fault recovery, by forcing them to purchase insurance on which they cannot recover, so that other insureds may enjoy lower premiums for insurance on which they can recover.
    Affirmed.
    Constitutional Law — Equal Protection — Insurance—Automobiles — No-Fault—Duplicate Benefits — Required Coverage— Voluntary Coverage — Statutes.
    The section of the no-fault insurance act requiring benefits provided under state or Federal law, or required to be provided, to be subtracted from any recovery under a no-fault automobile policy but which does not require such subtraction where the additional benefits are voluntarily contracted for by the insured is unconstitutional because it discriminates against the class of insureds entitled to benefits required by the state or Federal law as well as no-fault recovery by forcing them to purchase insurance on which they cannot recover so that other insureds may enjoy lower premiums (MCLA 500.3109; MSA 24.13109[1]).
    
      References for Points in Headnote
    New Topic Service, No-Fault Insurance §§ 1, 22.
    16 Am Jur 2d, Constitutional Law §§ 488, 494-497.
    
      
      Keller, Keller, Creager, Kosick & Rochau, for plaintiff.
    
      Butzbaugh, Page, Butzbaugh & Dewane, for defendant.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   Per Curiam:

Defendant appeals as of right from an order granting plaintiffs summary judgment motion on the basis that the governmental benefits set-off provision of Michigan’s no-fault insurance act, MCLA 500.3109(1); MSA 24.13109(1), is unconstitutional. Defendant, plaintiffs insurer, reduced payments due plaintiff by the amount of Social Security survivor’s benefits received by plaintiff.

This case is controlled by Pollock v Frankenmuth Mutual Insurance Co, 79 Mich App 218; 261 NW2d 554 (1977). Pollock involved a set-off for workmen’s compensation benefits. Its reasoning is equally applicable to a set-off for Social Security benefits.

We also note that Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971), is inapposite, as that case found a rational basis for a Federal set-off statute in the need to preserve state workmen’s compensation programs, a consideration not applicable to the case at bar.

Affirmed. Costs to appellee.  