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Dye v Esurance Property & Casualty Ins Co (COA - UNP; 4/4/2017; RB # 3627)


Michigan Court of Appeals; Docket # 330308; Unpublished
Judges Beckering, O’Connell and Borrello; Non-unanimous, Per Curiam (Judge O’Connell concurring in part and dissenting in part)
Official Michigan Reporter Citation: Not Applicable; Link to Opinion   
Link to concurrence/dissent


Compulsory Insurance Requirements for Owners or Registrants of Motor Vehicles Required to Be Registered [§3101(1)]
Definition of Owner [§3101(2)(h)]
Definition of Registrant [§3101(2)(i)]


Not Applicable


In this unanimous unpublished per curiam Opinion in an interlocutory appeal, the Court of Appeals held the trial court:

  1. erred as a matter of law in finding that, under the No-Fault Act, plaintiff’s father was a “registrant” of the vehicle that plaintiff was driving at the time of the accident;
  2. erred in finding that no genuine issues of material fact existed that plaintiff’s father was an “owner” of the vehicle that plaintiff was driving at the time of the accident; and
  3. erred in finding that an enforceable settlement agreement existed between GEICO and Esurance, and therefore improperly required GEICO to reimburse Esurance for PIP benefits that had been paid to plaintiff.

Plaintiff suffered a traumatic brain injury and other serious injuries in a 2013 automobile accident. Plaintiff was driving a BMW that he had purchased two months before the crash. Plaintiff’s father, Paul Dye, had registered the BMW on his son’s behalf at the Michigan Secretary of State’s Office and obtained no-fault insurance from Esurance. The declaration page of the Esurance policy only identified Paul as the named insured. Plaintiff’s wife, Lisa, owned a Dodge Caravan that was insured under a policy issued by GEICO; neither plaintiff nor the BMW were listed on the GEICO policy. When GEICO and Esurance denied plaintiff’s claim for PIP benefits after the accident, plaintiff filed this action alleging breach of contract. Thereafter, Esurance paid about $388,068.36 in PIP benefits to plaintiff. Subsequently, it was discovered that plaintiff was not living with his father at the time of the accident, thereby making GEICO the higher priority insurer. GEICO acknowledged it was the primary insurer and requested a demand from Esurance. Esurance demanded the amount it had already paid plaintiff in benefits -- $388,068.36 -- plus legal fees. When the demand remained unresolved, the attorneys for Esurance and GEICO communicated by email and GEICO emailed Esurance the following:

“Please find attached for your review the draft of the release and settlement for the amount of $391,212.54. The settlement number comes from:

The amount Esurance has paid to date in benefits for or on behalf of Mr. Dye: $388,068.54

Attorney fees: $3,019.00

Costs: $125.18

Upon your approval, please send back a signed copy and we will forward the check in the amount of $388,068.36 and will immediately request a check from our client for the remaining balance. I would expect that the check for attorney fees and costs to be promptly forwarded to our office.”

The release and settlement attached to the email indicated that “[f]or sole consideration of the total sum of … $391,212.54, ESURANCE … does hereby release and forever discharge GEICO … from any and all past, present and future claims, demands, damages, costs, expenses, action, and causes of action. …” Esurance’s counsel replied that she could not agree to release future claims and responded: “If you take out the wording ‘past, present or future’ that would cover all claims Esurance would have against Geico through the present. Let me know if that is agreeable.” GEICO’s counsel responded that he “fully unders[tood]” the need for the release language regarding future claims, and “w[ould] adjust that portion accordingly.” Several days later, Esurance’s attorney emailed GEICO’s attorney indicating that she was “confused” because she “thought” things had been settled. GEICO then withdrew its offer shortly thereafter, when the Court of Appeals issued its decision in Barnes v Farmers Ins Exchange (Docket No. 314621).

Esurance then filed a cross-claim against GEICO, requesting a declaratory judgment that GEICO was the highest priority insurer for plaintiff’s PIP benefits and claiming that GEICO breached its agreement to reimburse Esurance and requested attorney fees. GEICO moved for summary disposition, arguing the email exchanges showed that GEICO and Esurance had not agreed on all the terms of a settlement before GEICO withdrew its offer. In addition, GEICO moved for summary disposition on plaintiff’s claim for benefits, alleging plaintiff was not entitled to benefits under the decision in Barnes because plaintiff owned the BMW but had not insured it, and the person who did insure it – Paul Dye – was not an owner pursuant to MCL 500.3101(2)(k). Esurance moved for summary disposition on its cross-claim to enforce the alleged settlement agreement and to have the trial court declare GEICO the insurer of highest priority. Plaintiff also moved for summary disposition, claiming that Barnes was wrongly decided and that Paul Dye was an “owner” and “registrant” under the No-Fault Act because he had the right to use the BMW and had registered the vehicle. The trial court granted plaintiff’s and Esurance’s motions for summary disposition, and denied GEICO’s motions.

The Court of Appeals reversed and remanded, finding that Paul Dye was not a registrant of the BMW and that “reasonable minds could differ” as to whether he was an owner of the BMW.

Addressing whether Paul Dye was a registrant of the BMW, the Court stated:

“[A]lthough it is undisputed that Paul was the one who physically went to the Office of the Secretary of State and signed the ‘Application for Michigan Vehicle Title,’ it is equally undisputed that he did so on plaintiff’s behalf, and signed the application as plaintiff’s attorney-in-fact under the power of attorney granted him by plaintiff. Paul testified that he took plaintiff’s handwritten note granting him power of attorney to the Secretary of State’s office, and registered the BMW in plaintiff’s name, not in his own. In the absence of any evidence that Paul’s name was on the vehicle’s title at the time of the accident for which PIP benefits are sought, Paul cannot, as a matter of law, be the ‘registrant’ of the BMW, … and the trial court erred in ruling otherwise.”

Next, the Court looked at whether Paul Dye was an “owner” of the BMW. The Court noted that three separate arguments were made:

  1. GEICO claimed Paul Dye was not an owner because he used the vehicle “sporadically at best, and not in way consistent with ownership.
  2. plaintiff argued that Paul Dye was an owner because he had a continuous right to use the BMW and had established a pattern of sharing the vehicle with plaintiff and other family members.
  3. Esurance simply asserted that Paul Dye was an owner for purposes of MCL 500.3101(1).

Examining these arguments, the Court of Appeals pointed to the father-son relationship between plaintiff and Paul Dye, their history of sharing vehicles and testimony about Paul Dye’s right to use the vehicle at his discretion, saying this supported the trial court’s finding that Paul Dye was an owner of the BMW. However, the Court further said that circumstances surrounding Paul’ Dye’s access to the BMW keys and his actual use of the car during the two months before the accident “could lead a reasonable juror to a contrary conclusion.

Based on the foregoing, the Court of Appeals held:

“[W]e conclude that … genuine issues of material fact remain with regard to whether Paul was an ‘owner’ of the vehicle plaintiff was driving at the time of his accident for purposes of determining whether plaintiff is entitled to PIP benefits.”

The Court continued by examining the alleged settlement agreement between Esurance and GEICO, finding the two insurers “never agreed to” the total GEICO would pay in consideration for Esurance’s release. Although the release included an offer of $391,212.54, the Court noted that Esurance “took issue with” the extent of the release and that GEICO was willing to revise the release as proposed by Esurance, but indicated that it did not want to pay attorney fees, which the Court said constituted a counteroffer. Accordingly, the Court held:

“Although the issuance of Barnes promptly snuffed out what appears to have been a ‘nearly done’ deal, the parties had not yet reached a meeting of the minds on all of the essential terms, and the trial court erred in granting Esurance’s motion for summary disposition on its cross-claim for enforcement of the alleged agreement.”

Judge O’Connell issued a partial concurrence and dissent in which he concurred that Paul Dye was not a registrant of the BMW and that there was no enforceable settlement but disagreed with the majority that Paul Dye may qualify as an owner of the BMW.

Michigan auto accident attorney Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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