Michigan Court of Appeals; Docket No. 123988; Published
Judges Kelly, Doctoroff, and Neff; Unanimous; Opinion by Judge Kelly
Official Michigan Reporter Citation: 189 Mich App 420; Link to Opinion 
STATUTORY INDEXING:
General Rule of Priority [§3114(1)]
Resident Relatives [§3114(1)]
Penalty Attorney Fees Between Insurers [§3148]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This unanimous Opinion by Judge Michael Kelly involves a priority dispute wherein the Court of Appeals ruled that plaintiff was not domiciled in the same household as her son and therefore was not entitled to collect no-fault benefits from her son's no-fault insurer. The court held that the determination of domicile is a question of fact for the trial court and will not be reversed unless the evidence clearly preponderates in the opposite direction. In this case, the evidence demonstrated that plaintiff and a man named McMillan purchased a house which was divided into two separate units, one upstairs and one downstairs. Plaintiff and McMillan lived in the lower unit, and plaintiff’s son and his family occupied the upper unit Each unit had its own separate living area, sleeping quarters, kitchen and bathroom, and the units had separate entrances, separate post office addresses, separate telephone lines and electric bills. A formal agreement existed between plaintiff and her son wherein the son paid plaintiff $200 per month in rent.
Applying these facts to the factors enumerated in previous appellate decisions such as Dobson v Macki, 184 Mich App 244 (1990), Workman v DAIIE (Item No. 143) and Dairyland v Auto Club (Item No. 619), the court held that the evidence did not clearly preponderate in opposition to the trial court's determination that the plaintiff was not domiciled with her son.
The court also held that Auto Club was not entitled to attorney fees under §3148 of the no-fault statute in this reimbursement claim against Wolverine Mutual. The court held that §3148 provides for an award of attorney fees to an attorney who advises and represents the claimant in an action for no-fault benefits. Here, Auto Club did not advise or represent the claimant and therefore is not entitled to fees. Moreover, the court would not award attorney fees as this case involved a "bona fide factual uncertainty." The court remanded to determine whether or not mediation sanctions were available.
