Michigan Court of Appeals; Docket #353995; Unpublished
Judges Shapiro, Borrello, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
General/Miscellaneous [§3163]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of Defendant State Farm Mutual Automobile Insurance Company’s (“State Farm”) motion for summary disposition, in which State Farm sought dismissal of Plaintiffs Kelly McKinnie and Dejanae McKinnie’s first-party action to recover no-fault PIP benefits. The Court of Appeals held that a question of fact existed as to whether Kelly and Dejanae McKinnie were entitled to no-fault PIP benefits under the former MCL 500.3163, because a question of fact existed as to whether Dennis McKinnie, an out-of-state resident, was a constructive owner of the motor vehicle Kelly and Dejanae were traveling in at the time of the subject crash.
At the time of the subject crash, Kelly and Dejanae McKinnie were Michigan residents traveling in a vehicle owned by Julia Kincaid—also a Michigan resident, and Kelly’s mother/Dejanae’s grandmother. Kincaid had bought the car for Dennis McKinnie—a California resident—multiple years prior, and Dennis had the used the car in California in the interim, insuring it under a California automobile insurance policy issued by State Farm. Approximately seven months prior to the crash, Kincaid went to visit Dennis in California, and just two weeks before the crash, brought the vehicle back to Michigan. At that time, the vehicle remained insured under the California State Farm policy. After the crash, Kelly and Dejanae sought no-fault PIP benefits from State Farm, because State Farm was an authorized insurer under the former MCL 500.3163 and therefore responsible for Kelly and Dejanae’s PIP benefits. State Farm denied their claims and moved for summary disposition in their subsequent first-party action, arguing that the vehicle was not owned by an out-of-state resident. The trial court disagreed, ruling that a question of fact existed as to whether Kincaid changed her domicile to California by virtue of having lived there for approximately seven months prior to the crash, and also as to whether Dennis McKinnie was a constructive owner of the vehicle.
The Court of Appeals ultimately affirmed the trial court’s denial of State Farm’s motion for summary disposition, but first held that the trial court erred in ruling that a question of fact existed as to whether Kincaid had changed her domicile to California by going out there for seven months to visit Dennis. The Court noted that, while Kincaid may have considered moving to California during this time, she never affirmatively expressed an intent to stay in California permanently. Moreover, she occupied a spare bedroom in the house she stayed at in California and there was no evidence she ever paid rent. Lastly, the Court noted that all Kincaid’s possessions remained in Michigan, her bank accounts remained in Michigan, and her mail was still being delivered primarily to Michigan.
“Besides Kincaid’s lack of intent to permanently stay in California, nearly all of the other factors tend to suggest that Kincaid was still domiciled in Michigan despite her seven-month visit to California. Kincaid testified that while she was in California, she was staying in a spare bedroom. She had an informal relationship with the residents of her household—she was staying with her son, and nothing suggests that she was paying rent or had some type of formal or informal agreement for her room. While she was in California, her husband was still in Michigan staying at the home they shared. She testified that all of her possessions were still in Michigan, all of her bank accounts were in Michigan, and she received her mail in Michigan. All this evidence tends to suggest that Kincaid was still domiciled in Michigan, despite her extended stay in California before the accident.
In response to this evidence, plaintiff points to Kincaid’s testimony that she returned to Michigan before the accident to visit. This, however, does not tend to establish that Kincaid was domiciled in California. Again, Kincaid was originally domiciled in Michigan, and plaintiff needed to establish that Kincaid changed her domicile to California. That Kincaid was in Michigan to ‘visit’ before the accident does not support that she intended to permanently reside in California, particularly in light of her testimony that she was in California before the accident to ‘visit’ Dennis.”
The Court of Appeals held that the trial court did not err, however, in ruling that a question of fact existed as to whether Dennis McKinnie was a constructive owner of the vehicle. Dennis had used the vehicle more-or-less exclusively in California for multiple years prior to the crash, and while both he and Julia Kincaid testified that he “ ‘gave [the vehicle] back to’ ” Julia immediately prior to her taking it back to Michigan two weeks before the crash, Dennis also executed an affidavit averring that he merely “ ‘lent’ ” the vehicle to Julia to drive back to Michigan from California, and that he did not contemplate that she would keep it in Michigan permanently.
“The arrangement under which Dennis had use of the 2008 Range Rover was that Kincaid bought the Range Rover for him to use. It is unclear how long this arrangement was intended to last, but when viewed in the light most favorable to plaintiff, a reasonable juror could infer that it was intended to last indefinitely. Testimony was unanimous that Kincaid bought the 2008 Range Rover specifically for Dennis to use, and he used it for years before the accident. If, as Dennis averred in his affidavit, he only ‘lent’ Kincaid the 2008 Range Rover when she was involved in the accident, then a reasonable juror could infer that he retained the right to use the car as an owner would at the time of the accident.
Obviously, Dennis did not have actual possession of the 2008 Range Rover at the time of the accident, but the example from Twichel, 469 Mich at 531, suggests that actual possession is not conclusive—in the example, the person became an ‘owner’ not when he or she took possession of the vehicle, but at the inception of the lease because that is when he or she acquired the right to use the vehicle. Analogously, whether Dennis was a constructive owner of the 2008 Range Rover was not necessarily dependent on his actual possession of the car at the time of the accident, but on whether he maintained the right to use the car as an owner would. Accordingly, Dennis’s averment in his affidavit that he only ‘lent’ the car to his mother to visit Michigan ‘temporarily’ supports that he maintained the right to use the car as an owner would, even though he did not maintain physical possession of the car during that time.”
The Court further rejected State Farm’s argument that Dennis’s affidavit contradicted his deposition testimony and therefore should have been stricken from the record.
“Defendant argues that Dennis’s affidavit should be stricken from the record because it ‘directly contradicts his deposition testimony.’ See Casey v Auto Owners Ins Co, 273 Mich App 388, 396; 729 NW2d 277 (2006) (explaining that ‘a witness is bound by his or her deposition testimony, and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for summary disposition’). According to defendant, Dennis’s averment in his affidavit that he ‘lent’ the 2008 Range Rover to Kincaid contradicts his deposition testimony that he “gave” the car to her. We disagree. The parties barely touched on the issue of constructive ownership during Dennis’s deposition, and neither parties’ attorney asked Dennis to clarify what he meant when he said that he ‘gave’ the 2008 Range Rover to Kincaid to take back to Michigan. As a result, it is unclear precisely what Dennis meant when he said that he ‘gave’ Kincaid the 2008 Range Rover to take to Michigan, and it is not implausible that he meant that he temporarily “gave” her the car so that she could visit Michigan, i.e., that he ‘lent’ her the car. Thus, Dennis’s affidavit does not necessarily contradict his deposition testimony in this regard, and defendant’s argument to the contrary is without merit.”
