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Macklis v Farm Bureau General Ins Co (COA - UNP; 4/25/2017; RB # 3634)


Michigan Court of Appeals; Docket # 330957; Unpublished
Judges Sawyer, Saad and Riordan; Unanimous, Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]


Not Applicable


In this unanimous unpublished per curiam Opinion, the Court of Appeals held that although the trial court erred in applying amended MCL 500.3113(a) retroactively, the trial court properly denied defendant-insurer’s motion for summary disposition on plaintiff’s claim for PIP benefits, because there was insufficient evidence that plaintiff had unlawfully taken the vehicle he was driving at the time of the accident.

George Graham and another person known as “Kay” drove a van to meet plaintiff because they wanted plaintiff to help them illegally obtain prescription drugs from a doctor that plaintiff knew. Graham and Kay asked plaintiff to drive the van because plaintiff knew where the doctor’s office was located. Kay allegedly told plaintiff the van belonged to Graham. Plaintiff drove the van even though he did not have a driver’s license. Plaintiff picked up two other people and then stopped to get marijuana. After getting marijuana and while on the way to the doctor’s office, a vehicle ran a stop sign and collided with the van. Plaintiff was injured but released from the hospital the same day. Plaintiff sought PIP benefits under the Michigan Assigned Claims Plan. The claim was assigned to defendant Farm Bureau, which moved for summary disposition, arguing that benefits were unavailable because plaintiff 1) could not have had a reasonable belief that he was entitled to use the van, and 2) did not have a driver’s license, was smoking marijuana and made the trip to illegally purchase drugs. Plaintiff argued that the unlawful use of the van, by itself, did not negate his entitlement to no-fault benefits. The trial court held that summary disposition was improper because issues remained about who owned the van and whether plaintiff should have known who owned the van. In so holding, the trial court: 1) noted it applied the amended version of §3113(a), effective January 13, 2015, because plaintiff filed his claim after the amendment went into effect (although the accident happened before the amendment was effective), and 2) distinguished between unlawful taking and unlawful use.

Affirming the trial court’s decision, the Court of Appeals addressed which version of §3113(a) applied – pre-amendment or post-amendment. We hold that the trial court erred when it applied the amended version and that the prior version applies instead,” the Court said.

In making this ruling, the Court explained that when §3113(a) was amended in 2015, the requirement that an individual must unlawfully take a vehicle was changed and the statute now requires an individual either unlawfully take a vehicle or knowingly and willingly use an unlawfully taken vehicle. According to the Court: 

“The legislative history makes clear that the amendment was intended to ban from no-fault benefits those who knowingly use an unlawfully taken vehicle regardless of who unlawfully took the vehicle in the first place. Because this necessarily diminishes the rights of certain individuals otherwise eligible for no-fault benefits (i.e., those who only used a vehicle but did not unlawfully take it), we hold that the amendment can only be applied prospectively.”

Turning to whether plaintiff was entitled to no-fault benefits, the Court of Appeals noted that Farm Bureau argued plaintiff unlawfully took the vehicle because he did not have permission from its owner, which Farm Bureau asserted was neither Graham nor Kay. Looking to the evidence, the Court stated:

“[T]he record, to date, does not prove that the van was stolen and, importantly, leaves open the question whether plaintiff knew that Graham lacked the authority to grant him permission to drive it. And for purposes of defendant’s motion, we must view the evidence in a light most favorable to plaintiff, which means that defendant, on the record to date, failed to show that defendant knowingly drove a stolen vehicle.”

Therefore, while Farm Bureau focused its proofs and arguments on whether plaintiff could reasonably have thought he was entitled to use the van, Farm Bureau “failed to offer conclusive evidence that plaintiff took the van unlawfully,” the Court of Appeals said.

Accordingly, there was a genuine issue of material fact about whether plaintiff unlawfully took the van and, therefore, Farm Bureau’s motion for summary disposition was properly denied, the Court concluded.

Lansing car accident lawyer 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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