Michigan Court of Appeals; Docket #253015; Published
Judges Borrello, Bandstra, and Kelly; 2-1 (Judge Borrello dissenting)
Official Michigan Reporter Citation: 268 Mich. App. 342, Link to Opinion 
STATUTORY INDEXING:
Disqualification for Unlawful Taking and Use of a Vehicle [3113(a)]
General Rule of Priority [3114(1)]
Exception for Occupants [3114(4)]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 published opinion, Judge Borrello dissenting, the Court of Appeals held the definition of the term “family” could not be expanded to include an unrelated person so as to avoid the provisions of §3113a which preclude PIP benefits for a person using a motor vehicle which he has “taken unlawfully.”
Plaintiff Benjamin Strother was injured in a motor vehicle accident while driving a car solely owned by Heidi Allen and insured by State Farm. Strother and Allen were not married at the time of the injury, but thought of themselves as “family” and acted as a traditional family. They raised two children together and lived with each other while sharing household responsibilities for nine years. Strother was operating the automobile without Allen’s permission, primarily because he had lost his driver’s license due to alcohol related offenses.
The Court of Appeals first determined the priority provisions of §3114 did not provide for coverage for PIP benefits under §3114(1) because Strother was not the person named in the policy, the person’s spouse, or a relative of either domiciled in the same household. Under §3114(4), the priority provisions of the Act then require coverage from the insurer of the owner or registrant of the vehicle occupied unless otherwise excluded.
The court focused on the provisions of §3113(a) which state a person is not entitled to PIP benefits if at the time of the accident the person was using a motor vehicle which he or she had “taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle.”
There was no dispute Strother had taken Allen’s vehicle unlawfully without a reasonable belief he was entitled to take and use it. The court noted the term “taken unlawfully” is not defined in the statute. However, in Priesman v Meridian Mutual Insurance Company, 441 Mich 60 (1992), three members of the Supreme Court created a judicial exception to §3113(a) for “joy riding family members.” In the subsequent decision of Butterworth Hospital v Farm Bureau Insurance Company, 225 Mich App 244 (1997), the Court of Appeals recognized Priesman was not precedentially binding but, nonetheless, felt compelled to follow its reasoning. The Court of Appeals held that when a vehicle is taken by a family member, benefits will only be denied under §3113(a) if there was an actual “intent to steal” the vehicle.
The majority in the instant case held Strother was not a “family member” entitled to the “joyriding exception.” The majority disagreed with the dissenting opinion which would extend the judicially created “joyriding exception” to unrelated adults by expansively defining the limits of a “family.”
Writing separately, Judge Kelly concurred in the result but would hold Priesman is not binding precedent, because only three Justices concurred in the reasoning of the lead opinion. Although bound by the rule of law in Butterworth, Judge Kelly does not believe there is any authority to limit the application of §3113(a) to only car thefts, given the clear terms adopted by the statute. The Legislature chose the term “unlawful taking” which encompasses crimes other than larceny or stealing of a motor vehicle. Thus, even if Strother were considered to be part of Allen’s family, he would be precluded from recovering PIP benefits pursuant to the plain language of §3113(a).
Judge Borrello in his dissent noted that this court has previously, in Youngblood v DEC Properties, 204 Mich App 581 (1994), expansively defined the definition of “family” to include more than the traditional “nuclear” family, or even persons related solely by blood or legal formalities. Under the circumstances, the practicalities of their situation mandate the conclusion Strother and Allen are “family members.”
