Michigan Court of Appeals; Docket #350214; Unpublished
Judges Kelly, Fort Hood, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Disqualification for Unlawful Taking and Use of a Vehicle [§500.3113(a)]
Requirement That Benefits Were Unreasonably Delayed or Denied [§500.3148(1)]
Penalty Attorney Fees on Appeal [§500.3148]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition in favor of the plaintiffs, Todd Morris and his medical providers, Spectrum Health Hospitals and Mary Free Bed Rehabilitation Hospital, after determining that Morris was entitled to no-fault PIP benefits from the defendant, Progressive Michigan Insurance Company, for the injuries he sustained while driving a vehicle belonging to the estate of his live-in girlfriend’s ex-husband. Specifically, the Court of Appeals determined that Morris’s driving of the vehicle on the night in question was not an “unlawful taking” pursuant to MCL 500.3113(a). The Court of Appeals further held that Morris and his providers were entitled to attorney’s fees under MCL 500.3148 because Progressive’s denial of their claims for no-fault PIP benefits was unreasonable.
Todd Morris was injured in a motor vehicle collision while driving a Mercedes Benz, without a license, that belonged to the estate of Joe Montuoro. Morris was living with Joe Montuoro’s ex-wife, Kathy Montuoro, with whom Joe Montuoro shared two children. Upon Joe Montuoro’s death, his brother Mark was appointed as his personal representative, and Mark entrusted Kathy with liquidating or disposing of the items in Mark’s estate, all of which were left to Joe and Kathy’s children. Mark intended to sell the Mercedes eventually and to give the proceeds to the children, but “assumed” that Kelly had access to it in the interim. On the night of the subject collision, Kelly had taken the Mercedes to a party, perhaps became intoxicated, and perhaps let Todd Morris, who was unlicensed at the time, drive her home as a result. Because of Kathy’s collision-related injuries, she could not recall exactly how the events preceding the crash transpired; Todd Morris testified, meanwhile, that Kathy was too impaired to drive, and had given him permission to drive the vehicle as a result. Eventually, Todd Morris and his providers filed a claim for no-fault PIP benefits with Progressive, which Progressive denied, and in Morris’s subsequent first-party lawsuit, the trial court granted Morris’s and his providers’ motion for summary disposition and awarded Morris and his providers attorney fees under MCL 500.3148.
On appeal, Progressive argued that Morris committed an “unlawful taking” of the Mercedes under MCL 500.3113(a), and that his claim for PIP benefits was therefore barred. Specifically, Progressive argued that Morris took the Mercedes “without authority” from the personal representative of Joe Montuoro’s estate. The Court of Appeals rejected this argument, relying on the Court’s prior holding in Rambin v. Allstate Ins. Co., 495 Mich. 316 (2014) that, “a plaintiff could prove that he did not commit an unlawful taking under MCL 750.413, if ‘he did not knowingly lack authority to take the [vehicle] because he believed that he had authority to do so.’ Id. at 333.”
In this case, Progressive makes the same argument that the Supreme Court rejected in Rambin. Progressive argues that because Mark never spoke to Morris, and did not know about Morris until after the accident, he did not grant Morris express permission to use the Mercedes Benz. Progressive thus continues to argue, despite the Supreme Court’s holding in Rambin, “that absent express consent from the actual owner, plaintiff is barred from recovering PIP benefits.” Id. For the reasons explained by the Rambin Court, this argument is without merit.
The Court of Appeals next rejected Progressive’s argument that Morris could not rely on Kathy Montuoro’s grant of permission to drive the Mercedes because the Supreme Court rejected the “chain of permissive use” theory in Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich., 492 Mich. 503 (2012). The Court noted that, “the Spectrum Health Court did not rule that an intermediate user of a vehicle may never validly grant another permission to take and use a vehicle. Rather, the Court ruled that an intermediate user cannot contradict and overcome the owner’s express instructions that an end user may not take and use a vehicle.”
The Court of Appeals next rejected Progressive’s argument that Morris knowingly lacked authority to take the vehicle because he knew he could not legally drive it without a license. The Court noted that “Progressive’s argument was squarely rejected by this Court in Monaco v Home- Owners Ins Co, 317 Mich App 738, 741; 896 NW2d 32 (2016), which held that ‘the phrase ‘taken unlawfully,’ as employed in MCL 500.3113(a), does not encompass the unlawful use or operation of a motor vehicle, just the unlawful taking of a vehicle.’”
Lastly, the Court of Appeals rejected Progressive’s argument that the trial court erroneously granted Morris and his providers attorney’s fees pursuant to MCL 500.3148 because it did not first determine whether Progressive’s denial of benefits was unreasonable.
At the hearing on the motion for summary disposition, the trial court expressly held that any factual uncertainty about Morris’s entitlement to PIP benefits was resolved by the testimony obtained by Progressive during the examinations under oath.
. . .
Contrary to Progressive’s argument on appeal, the trial court did not award attorney’s fees automatically, based solely on a determination that Morris was entitled to PIP benefits. Rather, the trial court examined the circumstances as they existed at the time Progressive made the decision to deny Morris’s claim, and concluded that the decision was unreasonable at the time.
