Amos, et al v Progressive Marathon Ins Co (COA – UNP 7/13/2023; RB #4606)
Michigan Court of Appeals; Docket #360091; Unpublished
Judges Rick, Shapiro, and Letica; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this 2-1, unpublished, per curiam decision (Letica, dissenting), the Court of Appeals affirmed the trial court’s denial of Defendant Progressive Marathon Insurance Company’s (“Progressive”) motion for summary disposition, in which it sought it sought dismissal of Plaintiff Omar Akeem Amos’s action for no-fault PIP benefits. The Court of Appeals held that a question of fact existed as to whether Amos had “unlawfully taken” a vehicle for purposes of MCL 500.3113(a).
Omar Amos was involved in an accident while driving a vehicle owned by his mother, Venus Amos. On the night of the accident, Omar—intoxicated and without a driver’s license—took a bus to Venus’s house, arrived to find her asleep, and took her vehicle without waking her or having obtained her permission earlier. Venus found out that Omar had taken the vehicle the next morning, and initially reported the vehicle as stolen to police—she would later testify that she did so because Progressive, her automobile insurer, told her to. She ultimately withdrew her complaint or declined to press charges against Omar, who, for his part, sought PIP benefits following the accident under his mother’s policy with Progressive. When Progressive denied his claim based on MCL 500.3113(a), Omar filed suit, and in his deposition, he testified that he had driven Venus’s vehicle in the past; that he always had to ask her permission beforehand; and that Venus had always given it. Venus testified, meanwhile, that ‘if Omar wanted to borrow and use [the vehicle], he had to come and ask for my permission.’ Based on that evidence, Progressive moved for summary disposition, arguing that there was no question of fact that Omar’s taking of Venus’s vehicle was “unlawful” for purposes of MCL 500.3113(a): not only did Omar fail to obtain express permission from Venus to take the vehicle on the night in question, he was also operating the vehicle contrary to the Motor Vehicle Code by doing so intoxicated and unlicensed. The trial court denied Progressive’s motion, noting that express permission is not a requirement of MCL 500.3113(a) and that a vehicle is only “unlawfully taken” for purposes of MCL 500.3113(a) if it is taken without the permission of its owner—not if it is being driven in violation of the Motor Vehicle Code.
The Court of Appeals affirmed the trial court’s denial of Progressive’s motion for summary disposition, holding that a question of fact existed as to whether Omar had taken Venus’s vehicle “unlawfully” for purposes of MCL 500.3113(a). The Court observed that in Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503 (2012), the Supreme Court held that MCL 500.3113(a) ‘examines the legality of the taking from the driver’s perspective[.]’ Omar’s perspective in this case was that of someone who had never been denied permission to use his mother’s vehicle in the past, and who would have to wake his mother from a sound sleep in order to ask her something that she always answered the same way. “Resolution of familial situations such as this,” the Court wrote, “is plainly a matter best left to the jury.”
“[I]t remains true that the permissibility of one family member borrowing a vehicle from another is based on the nuances of the particular familial relationship and those relationships, while not dispositive, are highly relevant to the question of implied authority and the driver’s understanding. It is not for courts to declare that families may not allow use of a vehicle through implied permission based on the circumstances. . . .
In this case, Omar testified that he had used his mother’s vehicle multiple times and that on each occasion he had asked for permission before doing so. Omar believed that he did need Venus’s permission to use the vehicle, but there was never a time when he asked for permission and she denied the request. Further, the record is unclear whether Venus ever expressed any policy regarding the vehicle to Omar, and MCL 500.3113(a) ‘examines the legality of a taking from the driver’s perspective[.]’ Spectrum Health, 492 Mich at 522. From Omar’s perspective, his mother had granted him permission to use the vehicle every time he had asked to do so. When he arrived at his mother’s home on May 24, 2020, she was sleeping and therefore he could not ask for her permission without waking her. In that sense, this case presents the question whether Omar should have awoken his sleeping mother to ask for permission to use the vehicle, or whether considering the circumstances and his history with the vehicle, he reasonably believed that he had implied permission to do so. Resolution of familial situations such as this is plainly a matter best left to a jury.”
The Court of Appeals then rejected Progressive’s argument that Omar’s taking was “unlawful”—for purposes of MCL 500.3113(a)—because he was intoxicated and unlicensed, in violation of the Motor Vehicle Code. The Court appealed to the long line of Michigan cases which “make[] clear that MCL 500.3113(a) only prohibits PIP benefits on the basis of an unlawful taking of a vehicle”—i.e., taking a vehicle without permission from the owner—"and not when one unlawfully operates the vehicle of another”—e.g., by driving under the influence, driving without a license, etc.
Progressive and USAA alternatively argue that Omar unlawfully took Venus’s vehicle by driving while unlicensed in violation of MCL 257.301(1), and in violation of Michigan’s operating under the influence statute, MCL 257.625.6 However, this Court’s decision in Monaco v Home- Owners Ins Co, 317 Mich App 738; 896 NW2d 32 (2016), makes clear that MCL 500.3113(a) only prohibits PIP benefits on the basis of an unlawful taking of a vehicle and not when one unlawfully operates the vehicle of another. . . .
[t]he distinction between unlawfully taking a motor vehicle and unlawfully using a vehicle was recognized in Rambin v Allstate Ins Co, 495 Mich 316, 331; 852 NW2d 34 (2014), wherein the Supreme Court stated that “the unlawful use of a vehicle . . . is not relevant under the unlawful taking language in MCL 500.3113.” And this Court has observed that, with respect to the language in MCL 500.3113(a), ‘[c]learly, the terms ‘take’ and ‘use’ are not interchangeable or even synonymous; obtaining possession of an object is very different from employing that object or putting it into service.’ Amerisure Ins Co v Plumb, 282 Mich App 417, 428; 766 NW2d 878 (2009), abrogated in part on other grounds by Rambin, 495 Mich. at 323-324 n 7. [Monaco, 317 Mich App at 749.]
Judge Letica dissented, arguing that the trial court should have found no question of fact as to whether Omar took his mother’s vehicle unlawfully. She noted that Omar, “when asked whether he had to request permission ‘each time’ he ‘wanted to take and use’ Venus’s vehicle,” responded, “Absolutely. Yes.” That “end[ed] the inquiry,” according to Judge Letica, “of whether Omar unlawfully took Venus’s vehicle without authority and whether he knew or should have have known that he took it unlawfully.”
