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Robinson, et al. v. Progressive Michigan Insurance Company, et al. (COA – UNP 3/11/2021; RB #4234)

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Michigan Court of Appeals; Docket # 350450; Unpublished
Judges Letica, Cavanagh, and Fort Hood; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

 


STATUTORY INDEXING:
Exception for Employer Provided Vehicles [§3114(3)]
Exception for Occupants [§3114(4)]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing the plaintiff’s first-party action and remanded for further proceedings.  The Court of Appeals held that a question of fact existed as to whether the plaintiff’s employer, 313 Towing, LLC (“313”) was a constructive owner of the tow truck the plaintiff, Donald Robinson, was driving at the time of the subject crash.  If so, 313’s insurer, Progressive Michigan Insurance Company (“Progressive”), would be required to pay Robinson’s crash-related PIP benefits pursuant to MCL 500.3114(4)(a).

At the time of the subject crash, Donald Robinson worked as a tow truck driver for either 313 or ERS Towing, LLC (“ERS”), although there was a dispute as to which company.  Both companies were owned by Dejuan Douglas, and one day, while Robinson was responding to a call for a tow, he was struck by another vehicle in a parking lot.  Douglas claimed that the tow truck Robinson was driving at the time of the crash was registered to ERS, and, moreover, that Robinson worked for ERS.  Robinson, conversely, claimed that 313 was his employer and that the truck he was driving at the time of the crash was the same truck he always drove in the course of his employment with 313.  313 was insured through a policy of no-fault insurance with Progressive, but the tow truck was not covered under the policy; and although ERS also had a policy with Progressive, it was not in effect at the time of the crash and also did not include the tow truck as a covered vehicle. 

Shortly thereafter, Robinson filed a claim for PIP benefits through Progressive, but Progressive denied the claim and moved for summary disposition in Robinson’s subsequent first party action, arguing that it was not liable for Robinson’s PIP benefits under either MCL 500.3114(3) or (4) because it was neither the insurer of the tow truck nor the insurer of the owner or registrant of the tow truck, ERS.  Robinson argued in response that 313 was at least a constructive owner of the tow truck, and that, as a result, Progressive would be liable for his benefits pursuant to MCL 500.3114(4).  Ultimately, the trial court granted Progressive’s motion for summary disposition.

The Court of Appeals reversed the trial court’s summary disposition order in favor of Progressive. In doing so, the Court of Appeals first noted that the trial court correctly held that MCL 500.3114(3) did not apply to this case, because Progressive clearly did not insure the truck, itself. In this regard, the Court of Appeals agreed that if 313 was a constructive owner of the truck, Progressive, 313’s insurer, would be the “insurer of the owner or registrant of the vehicle occupied” for purposes of MCL 500.3114(4)(a). The Court of Appeals held, however,  in viewing the facts in the light most favorable to Robinson, the trial court erred by not ruling there was at least a question of fact as to 1) which entity employed Robinson, and 2) whether 313 was a constructive owner of the truck pursuant to MCL 500.3101(k), 

On this record, genuine issues of material fact exist as to: which entity is the owner or registrant of the subject tow truck;which entity employed plaintiff as a tow truck driver; and if 313 is not the owner or registrant of the tow truck but employed plaintiff, whether 313’s usage of the tow truck over the course of plaintiff’s employment made 313 a constructive owner of it for purposes of the no-fault act. Accordingly, the trial court’s order granting defendant’s motion for summary disposition is reversed and this matter is remanded for further proceedings.

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