Michigan Court of Appeals; Docket No. 204610; Unpublished
Judges O'Connell, Gribbs, and Talbot; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Leased / Rented Vehicles
Motor Vehicle Code (Civil Liability of Owner) (MCL 257.401)
CASE SUMMARY:
In this unanimous per curiam unpublished Opinion, the Court of Appeals held that Avis Rent A Car, as owner of a vehicle involved in a motor vehicle collision, was not liable to the injured person for damages under the owner liability statute, MCLA 257.401, because its lessee had not given consent to operate the vehicle to the negligent driver.
In this case, the vehicle was rented from Avis by Sakesuk Kasemsuwan. This rental vehicle was being operated in a negligent manner by Somboon Thirasisombat at the time of the collision. Plaintiff sued Avis on a theory of owner liability under the owner liability statute, MCLA 257.401. The trial court granted Avis' motion for summary disposition on the ground that defendant had submitted evidence of its lack of consent to Thirasisombat's use of the automobile when it submitted a copy of its rental contract with Kasemsuwan, pursuant to which Kasemsuwan agreed that nobody would drive defendant's automobile without his prior permission, and Kasemsuwan's sworn affidavit that he never gave Thirasisombat permission to use the automobile.
The Court of Appeals noted that operation of an automobile by one who is not a family member of the owner of the automobile, gives rise to a “rebuttable common-law presumption" that the operator was driving the automobile with the express or implied consent of the owner. However, the presumption of consent can be overcome by the production of “positive, unequivocal, strong and credible" evidence of a lack of consent. In this case, the court held that the language of the rental contract was a "clear and unequivocal“ statement of the relationship between Avis Rent A Car and Kasemsuwan with respect to the automobile in question.
Further, if Kasemsuwan had not given the driver permission to use the automobile, Avis could not be said to have consented to the driver's use of the automobile. Therefore, by submitting a copy of the rental contract and the affidavit of the lessee, defendant Avis satisfied its burden of providing documentary evidence in support of its position that there was no genuine issue of material fact regarding the lack of consent.
The court further noted that the collision in this case occurred on July 17,1991, prior to the amendments to the owner liability statute in 1995 PA 98.
