Michigan Court of Appeals; Docket No. 232188; Published
Judges Hoekstra, Smolenski and Fort Hood; unanimous; per curiam
Official Michigan Reporter Citation: 256 Mich. App. 691, Link to Opinion 
STATUTORY INDEXING:
Exception for Commercial Vehicles [3114(2)]
TOPICAL INDEXING:
No-Fault Insurer Claims for Reimbursement: Insurer Unequal Priority Reimbursement
CASE SUMMARY:
In this unanimous published per curiam opinion involving a priority dispute under the “common carrier” provision of section 3114(2) of the No-Fault Act, the Court of Appeals reversed the lower court’s ruling and held “the applicability of §3114(2) depends on a primary purpose/incidental nature inquiry with respect to whether a motor vehicle is operated in the business of transporting passengers.” The injured parties in this case were two minor children who sustained injuries while passengers in a vehicle driven by their day care provider and insured by defendant AAA. Plaintiff Farmers, who was the childrens’ family no-fault insurer, paid the claim and sought reimbursement from AAA on the basis of section 3114(2). Farmers argued that the vehicle involved in the accident was used by the day care provider to transport the children in the operation of a for-profit day care center and as such, was a motor vehicle operated in the business of transporting passengers to and from the day school. Thus, section 3114(2) attached priority liability to defendant, according to plaintiff’s analysis.
In rejecting plaintiff’s contention, the Court of Appeals relied upon its earlier decision in Thomas v Tomczyk [Item No. 826] and held:
“. . . the Thomas court appeared to sanction, without explicitly adopting or restating itself, the circuit court’s analysis, which concluded that §3114(2) did not apply because the driver’s transportation of passengers for hire did not constitute his primary function or purpose in operating his vehicle, but that incidental[ly] to coming home, it was convenient to take on passengers.
We agree with this analysis and believe that it accurately encompasses the intent of the legislature in enacting §3114(2). Thus, we hold that a primary purpose/incidental nature test is to be applied to determine whether at the time of an accident a motor vehicle was operated in the business of transporting passengers pursuant to §3114(2).
Applying that test to the instant case, we conclude that the day care provider’s driving of the children to school would not fall within the scope of §3114(2) because the record indicates, and the parties agree, that (1) her driving of the children to school in her vehicle occurred incidentally to the vehicle’s primary use as a personal vehicle, and (2) her transportation of the children to and from school constituted an incidental or small part of her day care business. Furthermore, a conclusion that the day care provider’s incidental driving of the children to school did not constitute the operation of a vehicle in the business of transporting passengers under §3114(2), is consistent with this Court’s observations that the Legislature intended §3114(2) to apply in ‘commercial’ situations.”