Michigan Court of Appeals; Docket Nos. 128662, 128663, 129017 and 129018; Published
Judges Hood, Sawyer, and Jansen; Unanimous
Official Michigan Reporter Citation: 198 Mich App 617; Link to Opinion 
STATUTORY INDEXING:
Disqualification for Intentionally Suffered Injury [§3105(4)]
Disqualification for Unlawful Taking and Use of a Vehicle [§3113(a)]
Determination of Domicile [§3114(1)]
TOPICAL INDEXING:
Legislative Purpose and Intent
CASE SUMMARY:
In this unanimous published Opinion by Judge Sawyer, the Court of Appeals interpreted the provisions of §3113(a) which prevents recovery of personal protection insurance benefits, if at the time of the accident, the person was using a motor vehicle which he had taken unlawfully, unless the person reasonably believed that he was entitled to take and use the vehicle.
In reversing the trial court and holding that the injured person was entitled to no-fault benefits, the Court of Appeals construed the language of §3113(a) broadly to determine that the use of the vehicle was with the owner's consent. In this unusual factual scenario, a group of young men was traveling in an automobile owned by the father of one of the group. After consumption of beer and controlled substances, the group was stopped by police and the son of the owner who had received original permission to use the vehicle (Pefley) was arrested. The police directed that one of the remaining group (Morrow) take custody of the automobile. Pefley yelled from the police cruiser for Morrow to "take the car home." Morrow and the remaining occupant, Forshee, however, did not proceed directly home and continued to use the vehicle. They ultimately engaged in a police chase and crashed the vehicle, severely injuring Forshee. A disputed factual issue concerned whether Morrow or Forshee was driving at the time of the collision. The trial court concluded that Forshee was driving, based upon testimony of Morrow that at some point in the evening he turned the vehicle over to Forshee because Morrow was uncomfortable driving a vehicle with a manual transmission.
At the conclusion of the bench trial, the trial court determined that Forshee's mother was liable for the medical expenses of her minor son, pursuant to a contractual assumption of duty and pursuant to a statutory duty for a parent to pay for a minor child's care. The trial court also determined that Forshee was not eligible for no-fault benefits because he had "unlawfully" taken the Pefley vehicle. Michigan Mutual was the automobile insurance carrier for Forshee's mother. State Farm insured the Pefley vehicle. Auto Club paid some benefits after the claim was assigned to it by the Assigned Claims Facility, and sought reimbursement of those benefits in this action.
The key issue in this case was whether the vehicle was being used at the time of the accident lawfully, or whether the person using it reasonably believed that he was entitled to take and use the vehicle within the meaning of §3113(a). The trial court determined that Forshee had unlawfully taken the automobile and had no reasonable basis for believing that he was entitled to use it. The Court of Appeals, however, reversed this determination and determined that Forshee's use of the vehicle at the time of the accident was with the owner's consent, inasmuch as the owner had entrusted the vehicle to his son, who in turn entrusted the vehicle to Morrow, who finally entrusted it to Forshee. Given this unbroken chain of permissive use, the court felt that Forshee's taking of the automobile was not unlawful. Further, the mere fact that the borrower violated the restrictions placed on him by the owner (to take the vehicle home) does not negate the fact that the subsequent taking by a third parry is, by implication, with the owner's consent. The court relied on Cowan v Streckerd, 394 Mich 110 (1975), which was a case that broadly interpreted the "consent" provisions of the owner liability statute. That case had concluded that consent was given under similar circumstances, and held that "when an owner willingly surrenders control of his vehicle to others, he 'consents' to assumption of the risks attendant upon his surrender of control, regardless of admonitions which would purport to de-limit his consent."
In holding that the subsequent violation of restrictions on the use of the vehicle did not prevent collection of no-fault benefits under §3113(a), the court relied upon State Farm v Hawkeye-Security Insurance Company, 145 Mich App 675 (1982), which was a case that held where the initial taking was not unlawful, the subsequent unauthorized use of a vehicle by an employee beyond the restrictions placed on the vehicle was irrelevant to a determination of entitlement to no-fault benefits under §3113(a).
The court further pointed out that it is necessary not only that the taking of the vehicle be unlawful, but also that the person who took the automobile not have a reasonable basis for believing that he could take and use the vehicle. In this case, the court felt that Forshee had a reasonable basis for believing that he could take and use the vehicle, where he started out as a passenger in the vehicle and the driver is in police custody, and the only other available driver is unwilling to drive because he is uncomfortable with the manual transmission. Finally, on this issue, the court found that the fact that Forshee did not possess a driver's license did not control resolution of the insurance issue as it is the unlawful nature of the taking, not the unlawful nature of the use, which forms the basis of the exclusion under the statute.
The court also addressed an issue raised by Michigan Mutual with regard to whether or not benefits were precluded by §3105(1) which Michigan Mutual argued precludes benefits where the injured person was not operating a motor vehicle as a motor vehicle. Michigan Mutual argued that because Forshee was fleeing and eluding a police officer at the time of the accident, he was not using the motor vehicle as a motor vehicle. The court rejected this argument and found that Forshee was in fact operating a motor vehicle at the time of the accident. Forshee's injuries were a direct result of his use of the automobile, not an indirect result of fleeing from a police cruiser. The cases of Peck v Auto Owners, 112 Mich App 329 (1982) or Sanford v Insurance Company of North America, 151 Mich App 747 (1986) were distinguished on the basis that the persons fleeing the police were operating motorcycles. Thus, the injured persons in these cases were not themselves operating or riding in a motor vehicle at the time of the accident.
The Court of Appeals also rejected another argument under §3105(4) in which Michigan Mutual contended that the vehicle was being used so recklessly that it constituted intentional injury within the meaning of the statute which precludes recovery. The court relied upon Mattson v Farmers Insurance Exchange, 181 Mich App 419 (1989) for its holding that this provision of the act requires that the injury be intended, not that an intentional act gave rise to an injury. Although Forshee did act intentionally in fleeing and eluding the police, there is no indication that he intended to be injured as a result.
The court also determined an issue of domicile in order to find that Michigan Mutual was obligated to pay benefits because it was the company that insured Forshee's mother with whom Forshee was living at the time of the injury. The determination of domicile is a question of fact to be resolved in the trial court. These facts were resolved in favor of the conclusion that Forshee was domiciled with his mother at the time of the accident.
Finally, the court determined that, in light of its ruling finding Michigan Mutual liable for the benefits, Auto Club was entitled to reimbursement
