Michigan Court of Appeals; Docket # 350296; Unpublished
Judges Murray, Cavanagh, and Swartzle; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Motor Vehicle Code (Civil Liability of Owner) (MCL 257.401)
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of defendant HTA Companies, Inc.’s (HTA) motion for summary disposition seeking dismissal of the plaintiff’s third-party claims against it, in which HTA argued that it was not liable for the underlying motor vehicle collision under the owner liability statute, MCL 257.401. The Court of Appeals held that questions of fact existed as to whether HTA’s employee, who caused the underlying collision, had the implied consent of HTA to use the company vehicle he was driving at the time of the collision.
On the night of December 27, 2016, HTA’s employee, Orion James Conley, went “mudding” on the property of HTA’s owner, Ted Harkins. Conley was intoxicated at the time, and did not have permission to be on Harkins’s property, and eventually, Conley got his truck stuck on the property. He then left to retrieve an HTA truck, and while operating the HTA struck, rear-ended the plaintiff, Victor Pennell. Pennell then filed third-party against Conley and HTA, alleging counts of vicarious liability and statutory owner liability against HTA. HTA moved for summary disposition, arguing that it was not vicariously liable because Conley was not acting in the scope of his employment at the time of the collision, and that it was not liable under the owner liability statute because Conley did not have permission to use the truck. Ultimately, the trial court granted HTA’s motion as to Pennell’s count alleging vicarious liability, but denied the motion as to Pennell’s count alleging liability under the owner liability statute.
The Court of Appeals affirmed the trial court’s determination that HTA was not vicariously liable for the collision, because Conley was not acting within the scope of his employment at the time of the collision. The Court of Appeals also affirmed the trial court’s determination that questions of fact existed as to whether Conley had implied consent to use the truck after hours. In so determining, the Court of Appeals considered Conley’s testimony—that he “freely had access to the keys to the vehicle, and did not have to ask permission before using it,” and that he would occasionally take the truck home to rest before his shift—as well as Harkins’s testimony—that employees generally needed his permission to take any of the company’s vehicles, unless he was unavailable and the employee was “‘punched in on the clock under normal business hours.’” Given this conflicting evidence, the Court of Appeals held that genuine issues of material fact existed as to whether Conley had the implied consent of HTA to take the truck in question.
Conley testified that he would plow snow for HTA using a company vehicle. Before starting a plowing shift, he did not have to ask to use a specific vehicle because everyone was assigned a vehicle in the fall. Conley said that he was assigned the Silverado for snow plowing. When it was time to plow, he went to work, got in the vehicle, and went to the job site. The keys to HTA vehicles were kept inside an HTA building. Conley would retrieve the keys himself. Conley said that as a mechanic for HTA, there were times when he needed to use a company vehicle to go get a part, and he did not have to report to anyone before taking the vehicle. He would simply take the keys, and use the vehicle. No one ever discussed with him that there were rules against doing so. When asked whether other HTA employees used vehicles without asking permission first, Conley said, “I don’t think anyone there had to ask if they got issued one.” It was “common practice” for employees to do so. Conley also said that it was not uncommon for him to be on HTA property after hours. Conley said that he had used the Silverado outside normal business hours “for plowing and other stuff.” He had also taken the vehicle home to get a few hours rest before plowing snow.
Harkins testified, however, that Conley was “not necessarily” assigned a particular truck for snow plowing, but rather, would be told what vehicle to take. Harkins admitted that there was nothing about the use of vehicles in the HTA policy manual, and nothing “that authorizes people to use vehicles for personal use[.]” Rather, Harkins testified that only HTA salespeople were permitted to take company vehicles home at night because it was written into their employment contracts. Employees who plowed snow were not allowed to take vehicles home, and if they did, it was without consent. If Conley was in an emergency situation with a disabled vehicle and had to get somewhere while on HTA property, Conley would not have Harkins’s permission to take a vehicle. If an employee wanted to take a vehicle, they had to ask permission from Harkins or his brother, the superintendent of the company. Harkins said that there were times when Conley needed to go get a part, and he would typically check in and say what he was doing. Harkins could not say that there were not times when Conley or other employees simply took a car to do so, and if Harkins was unavailable to check in with, the employee could take the vehicle “[i]f they were punched in on the clock under normal business hours.” Similarly, when asked if he had ever taken a company vehicle off hours without permission, Conley responded, “Not without permission,” because he knew it was company policy to get express permission.
The trial court did not err in determining that questions of fact existed regarding consent for Conley to take the vehicle at the time that he did. The test for consent under the owner liability statute “refers to the Fact of Driving,” Roberts, 386 Mich at 661-662, and consent cannot be “overcome by evidence that the driver has violated the terms of the original permission,” id. at 665. “The essential consent is consent to the Driving of the vehicle by others.” Cowan, 394 Mich at 115. Conley admitted that he did not have permission to use the HTA Silverado at the time of the accident. However, he freely had access to the keys to the vehicle, and did not have to ask permission before using it. Conley also testified that he had taken a company vehicle home before to get rest in between shifts blowing snow. Similar to the facts of Reitenga, it appears that there was “loose control” over the use of HTA’s vehicles, and “permissive use by [the driver] and others on certain occasions.” Reitenga, 288 Mich at 163. Therefore, there are genuine issues of material fact regarding whether Conley had implied consent to take the Silverado, MCR 2.116(C)(10), and the trial court properly denied HTA summary disposition of plaintiffs’ statutory owner liability claim.
